New South Wales Supreme Court CITATION : Hamod v State of New South Wales (No 9) [2008] NSWSC 518 HEARING DATE(S) : 23 May 2008 JUDGMENT DATE : 23 May 2008 JUDGMENT OF : Harrison J EX TEMPORE JUDGMENT DATE : 23 May 2008 DECISION : Plaintiffs' application to file a seventh amended statement of claim dismissed with costs CATCHWORDS : CIVIL PROCEDURE – statement of claim – application for leave to file seventh amended statement of claim within one month of substantive hearing – plaintiffs unrepresented - proposed amended statement of claim 357 pages and 1119 paragraphs consisting of "material facts" – leave sought to plead a cause of action in defamation - events giving rise to proceedings occurred in mid 1990s – abuse of process – application dismissed with costs CATEGORY : Procedural and other rulings Anthony Hamod (First Plaintiff) PARTIES : Hamock Investments Pty Ltd (Second Plaintiff) State of New South Wales (First Defendant) UBS Australia Limited (Second Defendant) FILE NUMBER(S) : SC 20147 of 2003 COUNSEL : M T Hutchings (First Defendant) M R Speakman SC (Second Defendant) In person (First Plaintiff) SOLICITORS : I V Knight, Crown Solicitor (First Defendant) Allens Arthur Robinson (Second Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HARRISON J 23 May 2008 20147/2003 Anthony Hamod and Hamock Investments Pty Ltd v State of New South Wales and UBS Australia Limited (No 9) JUDGMENT – EX TEMPORE 1 HIS HONOUR: This is an application by notice of motion filed by the plaintiffs on 15 May 2008. It is opposed. It is supported by an affidavit of Anthony Hamod sworn 14 May 2008 to which is exhibited the subject matter of the notice of motion. It is Mr Hamod's application for leave to amend his pleadings by filing a seventh amended statement of claim. I note in passing that these proceedings are due to commence on 2 June 2008 before me with an estimate of approximately eight weeks in two tranches. 2 To put this present application in context it may be convenient, and certainly instructive, to refer briefly to some history of the matter. The events upon which all versions of the statements of claim are based and upon which the plaintiffs have always relied, occurred or commenced about June 1994. On 19 June 2000 the plaintiffs commenced proceedings in the Federal Court of Australia. That file was transferred to this court on 11 June 2003. It is unnecessary to refer to the detail of any pleadings prior to the fifth amended statement of claim filed in this court on 24 June 2003. 3 The current pleading, subject to Mr Hamod's present application, is the sixth amended statement of claim. That document was filed in this court on 1 June 2004. It was settled by Mr D E Baran of counsel. It consists of 114 paragraphs and it includes at par 77 precise particulars of the allegation of injurious falsehood by members of the New South Wales Police Force which is one of the causes of action pleaded by the plaintiffs in these proceedings. The particulars of that allegation assume some significance in the present application to the extent that they constitute, in identical terms, the allegations of defamation said by the plaintiffs to form the basis of a substantial amendment to the pleadings. 4 Returning to the history of the matter, I note that the second defendant's defence to the sixth amended statement of claim was filed on 23 June 2005. On 7 June 2006 this matter was referred by Hall J to Mr R L Hunter QC for mediation. That mediation either did not take place or did not succeed in resolving these proceedings. 5 On 27 November 2006 the plaintiffs made an application before Hall J to file a notice of motion seeking then to expedite the proceedings. That application was heard by his Honour on 14 December 2006 and the matter was then listed for hearing commencing 23 July 2007, with an estimate of six weeks. In due course an application was made by the first defendant to vacate that hearing, which came before Hall J on 16 March 2007. On that date his Honour vacated the hearing listed for 23 July 2007. In due course, on 16 May 2007, the matter was given a hearing date with an estimate of seven weeks to commence on 29 October 2007. 6 The matter came before me in anticipation of that hearing for directions on 29 June 2007. On that occasion the plaintiffs, through their counsel, indicated that they were unable to resist an order being made that if the plaintiffs were unable to comply with directions that had been made in anticipation of the hearing commencing on 29 October 2007, the hearing date would have to be vacated. Mention was on that occasion made of negotiations with Swiss Barrington Group. 7 In the events that occurred, the hearing due to commence on 29 October 2007 was vacated by me on 19 July 2007. On 31 July 2007 the plaintiffs by their counsel foreshadowed an application to appeal to the Court of Appeal to reinstate the hearing formerly listed to commence on 29 October 2007. On 31 August 2007 however the plaintiffs by their counsel indicated to me that the application to the Court of Appeal to reinstate the hearing on 29 October 2007 had been withdrawn. 8 On 13 September 2007 the plaintiffs filed a notice of motion seeking expedition of the proceedings. For reasons to which it is unnecessary in detail to refer, that application appears to have been overtaken or abandoned in the context of interlocutory proceedings before me concerning applications by the defendants to have access, for the purposes of inspection, to the original of the platinum certificate which the subject of the proceedings. I have given judgments on more than one occasion in relation to that issue. 9 By 7 November 2007 Mr Hamod appeared unrepresented by legal counsel, and since that time has appeared for himself and the other plaintiff. On that day, in a directions hearing before me, Mr Hamod indicated that he sought to file further notices of motion, but indicated his desire to expedite the hearing of the matter as a result of his then existing state of unfavourable health. In that respect I refer to p 2 and p 5 of the transcript of proceedings for 7 November 2007. 10 On 4 December 2007, in a directions hearing before me, Mr Hamod indicated once again that he wanted to have the matter expedited, and in his words, that he required to have it heard as soon as possible due to his ill health. Without in detail outlining it, the record of proceedings of this court on that day bears witness to those remarks. Then, finally, on 5 December 2007, I listed this matter for hearing before me to commence, as I have indicated, on 2 June 2008 with a further period of weeks commencing in September 2008, in total for eight weeks. 11 At all times since 1 June 2004, the date upon which the sixth amended statement of claim was filed, until 5 December 2007, this matter has proceeded on three separate occasions upon the basis that it would go to trial upon the pleadings contained in the sixth amended statement of claim. As far as I am aware, no application within that period to amend or to vary the then and presently current pleadings had been made or foreshadowed. Again, as far as I am aware, the first time such an application was made was before me on 28 April 2008 when Mr Hamod on behalf of the plaintiffs indicated his proposal to make minor amendments, which subsequently became an application to make an amendment to the sixth amended statement of claim to include a claim for defamation. I indicated in the absence of a formal application or supporting evidence at that time that an appropriately formal application would have to be made for that proposal to be considered. 12 In due course on 15 May 2008 Mr Hamod filed the application which is presently before me today. The proposed seventh amended statement of claim is exhibited to the affidavit of Mr Hamod sworn 14 May 2008 and forms part of exhibit PX1 on this application. That document, in contradistinction to the sixth amended statement of claim, appears clearly not to have been prepared by anyone with the benefit of legal training. I note in passing that it bears no resemblance either in form or substance to either the fifth amended statement of claim or to the sixth amended statement of claim. As I remarked during the course of argument, the document is 357 pages long and by my reckoning contains 1,119 paragraphs including a schedule A of some 20 or more pages. The document contains, as Mr Hamod was at pains during the course of the proceedings before me to point out, detailed statements of what he referred to as material facts. 13 I have every expectation that at the hearing of the matter listed to commence on 2 June 2008 some, if not all, of these so-called material facts will be the subject of comment, submission and presumably evidence from Mr Hamod and other of his witnesses likely to be called in the proceedings. Reference to the proposed seventh amended statement of claim as an omnibus of these so-called material facts may in due course prove to be useful. 14 Mr Hamod has conceded today that the causes of action, to the extent that they can be identified in a document of that length, pleaded by the plaintiffs are identical to the causes of action pleaded in the previous two versions of his statement of claim with the exception that he seeks to plead a cause of action in defamation. 15 At the heart of his proposal to amend the pleadings to include that cause of action is a contention, which I take to be denied, that material lately served upon him in the form of six unidentified lever arch folders of material that Mr Hamod considers will take him approximately a year to master, has led him to form the view, in a way that is not specified, that he now needs to amend his claim to plead the alternative count. 16 The first defendant did not seek to rely upon evidence in support of its opposition to the present application. In contrast, the second defendant, however, filed a bundle of documents which I marked as exhibit 2DX1 on this application. Part of the material contained in that bundle includes correspondence between M R Barber and Associates and the present plaintiffs dated 25 September 2000. The letter appears to be a letter of advice to Mr Hamod following a consultation with him and counsel on either 19 August 2000 or 19 September 2000 and the matters in brief discussed at that time are referred to in the letter. 17 The letter contains an opening sentence saying, "We refer to your recent attendance in conference with counsel ... in relation to the above matter". The letter goes on to refer to discussions about the necessity to amend what were the then current pleadings. Causes of action in negligence, trespass, malicious prosecution, breach of statutory duty and breaches of the Trade Practices Act are mentioned. 18 Paragraph 2 of this letter of 25 September 2000 then says the following, "Defamation [is] not to be pleaded as cause of action on basis that may [query "any"] claim would be much easier to prove under 'negligence'". That letter refers to other material about then current issues relating to the proceedings to which it is unnecessary in more detail to refer. 19 In support of the present application, Mr Hamod has filed detailed written submissions dated 22 May 2008 which I note for the purposes of the record were conveniently sent electronically to me in advance of today's proceedings. In relation to the present application, Mr Hamod's primary submissions would appear to be as follows. The plaintiffs have only recently discovered materials and evidence to support what are referred to as "amended pleadings of defamation and overt acts of conspiracy which are now contained in the seventh amended statement of claim." 20 The submissions go on to suggest that the pleadings in the proposed document retain the same causes of action apart from defamation. The defamation pleadings as proposed are said to be based on the pleadings that were previously pleaded for injurious falsehood and are not new claims and the first plaintiff is adding this cause of action due to the fact that the defendants are refusing to accept the findings of the learned Magistrate Horler on 3 April 1998 and are continuing to make false representations against Mr Hamod. Moreover, according to these submissions, the plaintiffs contend that the defendants have previously concealed evidence from the plaintiffs and are in some unspecified fashion thereby abusing the process of this court and its procedures in an attempt "to have relevant pleadings and evidence excluded from these proceedings". 21 Mr Hamod further contends in his written submissions that the additional pleadings and material facts have been added to assist the court to evaluate the evidence in the plaintiffs' possession as well as in the possession of the defendants in support of the causes of actions proposed to be pleaded. 22 Having regard to these matters, the position appears in summary to me to be as follows. First, the sixth amended statement of claim has been on foot and has guided the parties and this court unchallenged and uninterrupted since the middle of 2004 until certainly the end of 2007 and probably until April of 2008 before any overt suggestion that it was inadequate for the plaintiffs' purposes was made. 23 Secondly, the proposed document on any view of the matter is unstructured, confused, confusing, complicated to a fault, prolix and burdensome on any defendant at the best of times and particularly so having regard to the hearing due to commence in less than two weeks. 24 Thirdly, if it be the case, as Mr Hamod concedes, that with the exception of defamation the causes of action are identical, any amendment touching or concerning those original causes of action is by definition unnecessary. 25 The burden of the present application therefore would appear to be Mr Hamod's concern to plead defamation which, since the events giving rise to these proceedings more than a decade ago, he alone or with the benefit of legal advice from time to time, has so far eschewed. 26 Part of Mr Hamod's grounds for seeking now to plead defamation as a cause of action against the present defendants would appear to be, doing the best I can, that for some time during the period since the alleged defamations occurred in 1995 he has been, or has laboured, under a disability either consisting of or stemming from post traumatic stress disorder and depression in such a way as to have limited his ability relevantly to understand that he had or may have had a cause of action in defamation against the present defendants and to take such appropriate steps to plead it as were consistent with an exercise of his right to do so. 27 No evidence in support of that particular allegation is made and no medical evidence other than at a general or anecdotal level suggests that defamation as a cause of action was not known or understood by Mr Hamod as a possibility at any time prior to April of this year. The one letter to which I have referred in the defendants' bundle in 2000 suggests in clear terms that the possibility of a cause of action in defamation had been considered and presumably discarded. 28 For the plaintiffs now, within a month of an eight week hearing, to seek to file a 357 page statement of claim, is in my opinion an abuse of the process of this court. In lay language, it is simply unfair. The plaintiffs, as all litigants, must understand that this court and other parties to this litigation make arrangements for the hearing of proceedings relying upon information given to them and circulated between and among them about the issues in the case, the amount of court time that may be required to give vent to them and other related concerns. 29 To permit the proposed seventh amended statement of claim to form any part of this proceeding at this late stage other than as a reference work of allegedly material facts to which all parties might have regard would be to set at nought all of the preparation, all of the directions and all of the parties' respective best efforts to prepare for the hearing since this matter was listed for hearing last year as I indicated. Orders 30 In my opinion, the present application should be dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.