FEDERAL COURT OF AUSTRALIA Hamod v State of New South Wales [2004] FCA 1177 ANTHONY HAMOD & ANOR v STATE OF NEW SOUTH WALES & ANOR N 1418 of 2001 ALLSOP J 8 SEPTEMBER 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1418 of 2001 BETWEEN: ANTHONY HAMOD FIRST APPLICANT HAMOCK INVESTMENTS PTY LIMITED (ACN 005 758 412) SECOND APPLICANT AND: STATE OF NEW SOUTH WALES FIRST RESPONDENT UBS AUSTRALIA LIMITED (ACN 003 059 461) SECOND RESPONDENT JUDGE: ALLSOP J DATE OF ORDER: 8 SEPTEMBER 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The notice of motion filed by the first applicant on 19 August 2004 be dismissed. 2. The first applicant pay the first and second respondents' costs of the first applicant's notice of motion filed 19 August 2004. 3. Pursuant to O 37 r 7 of the Federal Court Rules, a writ for levy of property issue in the form annexed and marked "A" to the notice of motion of the second respondent filed on 26 August 2004. 4. The first applicant pay the second respondent's costs on the second respondent's notice of motion filed 26 August 2004. 5. The time for filing and serving an application for leave to appeal from the orders of today in respect of both notices of motion be extended up to and including Tuesday, 21 September 2004. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1418 of 2001 BETWEEN: ANTHONY HAMOD FIRST APPLICANT HAMOCK INVESTMENTS PTY LIMITED (ACN 005 758 412) SECOND APPLICANT AND: STATE OF NEW SOUTH WALES FIRST RESPONDENT UBS AUSTRALIA LIMITED (ACN 003 059 461) SECOND RESPONDENT JUDGE: ALLSOP J DATE: 8 SEPTEMBER 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Before the Court are two notices of motion. The first is a notice of motion of Anthony Hamod in proceedings 1418 of 2001. Mr Hamod seeks five orders in the following terms: 1. set aside the order of Justice Katz made on 7 of December 2001 in the proceedings; and/or 2. stay of execution of order of Justice Katz made on 7 of December 2001 in the proceedings; and/or 3. set off the proper costs of order of Justice Katz of 7 December 2001 from the order made by his honour Justice Conti on 22 of May 2003 in favour of the Applicant in the matter of 643 of 2000; and/or 4. leave be granted to the First Applicant to pay by instalments the costs assessed of the order made by Justice Katz on 7 of December 2001. 5. such further or other orders as the Court considers just and reasonable. 2 The second motion is a motion brought by the second respondent to Mr Hamod's motion, that is, UBS Australia Limited. That motion is in the following terms: 1. Pursuant to O 37 r 7 of the Federal Court Rules, a writ for levy of property be issued in the form annexed and marked "A". 2. Such other orders s the Court considers appropriate. 3. Costs. 3 The terms of annexure A to the notice of motion were as follows: In respect of the order entered on 9 August 2004, levy on the property of: Anthony Hamod; and Hamock Investments Pty Limited Which is authorised by law to be taken in execution for: (a) the amount payable jointly and severally by Anthony Hamod and Hamock Investments Pty Limited under the order, being $15,370.55, plus interest from the date of issue of the Certificate of Taxation, being 12 August 2003, at the yearly rate of 10.5% or such rates as may be notified to you by the court, otherwise such rates as are prescribed on so much of the sum of $15,370.55 as is from time to time unpaid, subject to any payment in reduction thereof; and (b) your fees; and pay the amount so levied, less your fees, to UBS Australia Limited or otherwise as the law may require. 4 I will refer to these two motions as Mr Hamod's motion and UBS's motion. 5 Mr Hamod's motion was allocated to Moore J. The UBS motion was allocated to my docket as duty judge. I made arrangements for the motion in Moore J's docket to be listed before me because they appeared to be related. 6 There is a considerable history to the affairs, if I may use that expression, between the parties and Mr Hamod. I do not propose to go through the history of those affairs in detail, although I will need to outline some basic matters. 7 In the mid-1990s, Mr Hamod was charged with a serious offence of dishonesty in relation to a certificate representing, or said to represent a large amount of platinum. Mr Hamod was incarcerated for some months pending his trial. The trial took place summarily before a Magistrate, and the charges were dismissed. Thereafter, Mr Hamod was awarded costs. 8 There is material before me, although as I will indicate in due course is irrelevant to the applications before me today, that indicates that Mr Hamod, since these events, for which he holds the respondents responsible, has suffered and continues to suffer both physical and emotional harm of a serious nature. 9 Mr Hamod began proceedings in this Court against the respondents seeking redress for the wrongs that he had suffered in his eyes. A statement of claim went through a number of iterations. In December 2001, there came before Katz J an application in which an extension of time was sought to seek leave to appeal from various interlocutory judgments given by a Judge of this Court, Conti J. The background to the application before Katz J was set out helpfully in his Honour's reasons given on 7 December and published in settled form on 14 December 2001. 10 Katz J in considering whether there should be an extension of time in which to seek leave to appeal from various interlocutory judgments was exercising the appellate jurisdiction of this Court. His Honour dismissed the application and ordered that the applicants, that is, Mr Hamod and a company in which he then had an interest pay the costs of the application. 11 After the hearing before Katz J the matter found its way to the Full Court of the Federal Court on 22 February 2002. The Full Court of the Federal Court on that day was exercising the appellate jurisdiction of the Court. On that day the Full Court of the Federal Court, consisting of Gray, Carr and Goldberg JJ made orders in the following terms: 1. The purported appeal be dismissed as incompetent. 2. The motions the subject of the notice of motion filed on 15 February 2002 be dismissed. 3. Anthony Hamod and Hamock Investments Pty Limited pay the respondents' costs of the purported notice of appeal, the notice of motion filed on 25 October 2001 and the notice of motion filed on 22 November 2001, up to and including 7 December 2001. 4. The costs of all parties of the purported appeal, the notice of motion filed on 25 October 2001, the notice of motion filed on 22 November 2001 and the notice of motion filed on 15 February 2002, after 7 December 2001, be costs in the cause in proceeding no. N 643 of 2000. 12 The precise relationship between the order of Katz J and the order of the Full Court does not matter. There are two orders: one of Katz J and one of the Full Court, both in the appellate jurisdiction. Those are the orders which have been subject to taxation. Those are the orders the taxation of which is subject to the order of the Deputy District Registrar of 9 August 2004. 13 Later on 22 May 2003, Conti J made orders transferring the proceedings to the Supreme Court of New South Wales, Common Law Division, pursuant to the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). However, in that application, which had been opposed by UBS, his Honour ordered that UBS pay the costs of Mr Hamod and his company of the application in the proceedings commenced by notice of motion filed on 21 February 2003, by which order, I understand, his Honour was requiring UBS to pay Mr Hamod's and his company's costs in the cross-vesting application. 14 Steps were taken by the solicitors for UBS to tax the costs of UBS in relation to the orders made by Katz J on 7 December 2001, and the Full Court on 22 February 2002. Mr Hamod had solicitors acting for him during this period. Ultimately, bills of costs were prepared and steps were taken, apparently in accordance with the rules, and no objection was taken to the estimate of costs in the sum of $15,370.55, which was notified to the parties by District Registrar Grant. 15 Thereafter, a certificate of taxation was issued and pursuant to O 62 r 45(3), which provides as follows: If, after 14 days from the date of service of the certificate of taxation, the costs remain unpaid then the Registrar shall, at the request of the party in whose favour the costs are awarded draw up sign and seal an order in favour of that party for the sum shown in the certificate of taxation and enter the same. 16 The evidence of Mr Holmes in his affidavit of 26 August 2004 reveals that the certificate of taxation issued on 12 August 2003 and on 21 August 2003 was sent by pre-paid registered post to the applicants and to the applicants' then solicitors by Document Exchange. 17 On 9 August 2004, a Deputy District Registrar made an order under O 62 r 45(3) that the applicants, that is Mr Hamod and his company, pay the sum of $15,370.55 to the second respondent. It is that order which is the subject of UBS motion. 18 Order 37 r 7 of the Federal Court Rules, relevantly, provides as follows: (1) Subject to the Rules, and without limiting any other means of enforcement which may be available, the Court may, in order to enforce a judgment or order of the Court, make any order, issue any writ or take any other step that could be made, issued or taken, by the Supreme Court of the State or Territory in which the judgment or order is to be enforced if the judgment or order had been made by that Supreme Court. (2) The modes of procedure and forms of process of the Supreme Court of the State or Territory in which the judgment or order is sought to be enforced shall be available and followed in the Court so far as is practicable mutatis mutandis for the enforcement of orders of the Court. 19 These rules have the effect of adoption, as surrogate federal law, of the laws and rules of the relevant Supreme Court, here, the Supreme Court of New South Wales. 20 Part 44 rule 7 of the Supreme Court Rules deals with the issue of writs of execution. Form 57 is a writ for levy of property provided for by Part 44 rule 2, and, implicitly, Part 44 rule 7. The form of the writ sought by UBS is in accordance with Form 57. Thus, UBS wishes to execute against the property of Mr Hamod to enforce its order of this court for the payment of $15,370.55. 21 The original proceedings, being the complaints by Mr Hamod against the respondents, that is, the State of New South Wales and UBS, is now in the Common Law Division. The orders for costs in respect of the orders of Katz J and the Full Court were made in the appellate jurisdiction in respect of interlocutory applications concerning appeals or applications to appeal. 22 On the material before me, and including what I have been told from the bar table, on instructions by Mr Speakman and also what I have been told by Mr Hamod, it appears that the order for costs against UBS has not been the subject of any activity whatsoever as yet. It is an order in the original jurisdiction and, in one sense, has gone with the file in the cross-vested proceedings. It is unnecessary to characterise with any further precision the jurisprudential state of that order. It is an order of this Court and to the extent that jurisdiction was properly evoked in this Court, what exists in the Supreme Court remains an exercise of federal jurisdiction. 23 That is the context in which UBS brings the matter to Court. Mr Hamod seeks, in his notice of motion, orders which would entirely undercut all that UBS seeks. I have set out above the orders sought by Mr Hamod. In support of his notice of motion, he has filed an affidavit, which extensively recounts the history, not only of the proceedings in this Court but of the underlying facts founding his complaints against the respondents. 24 Mr Speakman handed up a series of objections in one document to that affidavit, I marked those objections exhibit 1. I do not propose to deal individually with those objections. In large part they are good. The affidavit of Mr Hamod is legally irrelevant. Given the way I have chosen to deal with the matter I should simply identify the fact that I place no weight on the material therein for that reason. Should this matter go any further, I would say that I would formally reject the whole of the affidavit of Mr Hamod. However, it can remain on the file so that Mr Hamod can explain, if necessary on another occasion, its relevance. 25 Similarly, the submissions of Mr Hamod, which is exhibit B, sets out in similar detail much the same matters for the same reasons. It too is, in my view, legally irrelevant and the ordinary course would be to reject it as evidence on the motion. The same can be said as to exhibit A, which contains the exhibits to Mr Hamod's affidavit and to exhibit C, which is a facsimile of Allens Arthur Robinson to Mr Hamod dated 18 August 2004 and annexures. Therefore, the best course with exhibits A, B and C is simply that I place no weight on the material contained therein. 26 The reason that all this material is legally irrelevant is that what Mr Hamod is asking me to do as a single judge of the Court, exercising the original jurisdiction of the Court, is to set aside and otherwise interfere with and affect the operation of orders made in the appellate jurisdiction by other Judges of this Court and which have been entered. 27 When I asked Mr Hamod today for the grounds that he put forward to interfere with Katz J's orders, the burden of his response was that Katz J did not have power to deal with the matter. Secondly, he had before him evidence of error in the Judge's approach to the matter in respect to which an appeal was brought. Thirdly, that Mr Hamod had suffered a great deal of damage and injury and that he was sick. With the utmost respect to Mr Hamod, these matters do not entitle me to interfere with orders made by a Judge of this Court exercising the appellate jurisdiction nearly three years ago. 28 As I said, the orders have been entered, taxation has occurred and an order of the Deputy District Registrar has been made. I simply have no power to set aside Katz J's order. I do not have any power to stay the execution of the order given that it has been perfected. Even if I had power, I would not exercise it. As to the setting of the costs from the orders Katz J and the Full Court with the order made by Conti J on 22 May, once again, in my view I do not have the power to interfere with the operations of orders of the Court made in the appellate jurisdiction passed and entered and if I did have power in all the circumstances, I see no proper basis to suspend or stay the order of the Deputy District Registrar, which would need to be done to suspend its operation. 29 Likewise, as to the request to pay by instalments, that may have been a proper exercise of discretion of Katz J in the appellate jurisdiction when it was made; but I have no power nor would I exercise any discretion had I power, to meddle with the order made by Katz J nearly three years ago. 30 There are no further or other orders that are just and appropriate save for the dismissal of the notice of motion. 31 For those reasons, the order that I propose to make in relation to Mr Hamod's notice of motion is that the motion be dismissed. I will come to the question of costs in due course. 32 Turning to the motion of UBS, Mr Hamod has made assertions from the bar table that he was not kept abreast of the taxation process by his then solicitors. I am not prepared to suspend or consider delaying the making of these orders on that basis. If Mr Hamod has a complaint about the conduct of his previous solicitors he can take that up with the appropriate authorities or in the appropriate way. 33 The only matter that I would raise is as follows, and I say this with the utmost respect to Mr Hamod, not meaning to be critical of him or in any way condescend to him. Looking at the evidence, which is otherwise inadmissible and irrelevant it is evident that the events of the mid-1990s have had an enormous impact on his life and his health. Litigation is really the way to salve those matters. If I were in a position to interfere with the operation of the orders in the appellate jurisdiction it might be that I would seek to encourage parties to stay their hand on enforcement pending some attempted resolution of the matter. However, I note from the evidence of Mr Hamod that steps may already have been taken to seek to resolve this matter. 34 The fact is that UBS is in possession of a regular order of this Court after taxation for a modest sum, by litigation standards, in respect of two applications brought by Mr Hamod which he lost. No step has been taken to assess the costs ordered by Conti J. The costs have not been paid. No application for special leave to appeal those costs orders was either made or is extant in the High Court and there is no reason in law, in my view, why UBS should not have available to it the mechanisms provided by the Act and Rules for the enforcement of judgments. 35 For those reasons I order that pursuant to O 37 r 7 of the Federal Court Rules a writ for levy of property issue in the form annexed and marked A to the notice of motion filed on behalf of UBS on 26 August 2004. 36 I come to the question of costs. It is only too apparent that this litigation is being fought on all fronts. If I thought that there were grounds for ameliorating the usual order for costs following the event on the basis that such amelioration would assist in bringing to an end or limiting this litigation then I would be prepared to go to the limits of the proper exercise of my discretion to refuse to award those costs. However, I do not think there is any proper basis that I should deprive UBS of its costs on both motions and I doubt very much whether, on reading the papers, any amelioration that I gave in relation to the usual order would make the slightest difference. 37 There being no basis for other than the usual order for costs being made on both motions. I order that Mr Hamod as the moving party in his notice of motion and as the recipient of the second respondent's notice of motion pay UBS's costs of both notices of motion. 38 As to the State's costs, it was made a respondent to Mr Hamod's notice of motion and is here I think in relation to that notice of motion and no other. The notice of motion of Mr Hamod affected the State, it received the motion and I see no reason why Mr Hamod should not pay the State of New South Wales costs in his notice of motion. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 10 September 2004 The applicant appeared in person on behalf of the first and second applicants. Counsel for the First Respondent: Mr G R Waugh Solicitor for the First Respondent: Crown Solicitor (Sydney) Counsel for the Second Respondent: Mr M Speakman Solicitor for the Second Respondent: Allens Arthur Robinson Date of Hearing: 8 September 2004 Date of Judgment: 8 September 2004