Hamade v State of New South Wales

[2011] NSWCA 237

Court of Appeal

New South Wales

Case Title:	HAMADE v State of New South Wales
Medium Neutral Citation:	[2011] NSWCA 237
Hearing Date(s):	08/08/2011
Decision Date:	08 August 2011
Jurisdiction:
Before:	Hodgson JA; Handley AJA
Decision:	Summons for leave to appeal dismissed with costs. The State's Notice of Motion dismissed with no order as to costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PRACTICE - action for defamation - litigant in person - second statement of claim totally inadequate - struck out - action dismissed - leave to appeal refused
Legislation Cited:
Cases Cited:
Texts Cited:
Category:	Principal judgment
Parties:	applicant:  Daoud HAMADE respondent:  STATE OF NEW SOUTH WALES
Representation
- Counsel:	COUNSEL: applicant:  In Person  respondent:  D Mallon
- Solicitors:	SOLICITORS: applicant:  self-represented  respondent:  I V Knight, Crown Solicitor
File number(s):	2010/224195
Decision Under Appeal
- Court / Tribunal:
- Before:	Harrison AsJ
- Date of Decision:	08 August 2011
- Citation:
- Court File Number(s)
Publication Restriction:

Judgment

1. HODGSON JA: There are before the Court two applications: one is a notice of motion by the State of New South Wales to have Mr Hamade's summons dismissed as incompetent, and the other is Mr Hamade's summons for leave to appeal. Although it appears that Mr Hamade's appeal should have gone to a single judge, the matter is before us, and both parties are before us. It is within our power to deal with it, and we think the appropriate course is to dismiss the State's notice of motion and to proceed to deal with Mr Hamade's summons.

1. The summons seeks leave to appeal from a decision of Associate Justice Harrison dismissing Mr Hamade's statement of claim, which purports to seek damages for defamation. The reason given by the Associate Judge was that the statement of claim did not disclose a cause of action. In circumstances where Mr Hamade had already had one statement of claim struck out for not disclosing a cause of action, the Associate Judge thought it appropriate that the whole proceedings be dismissed.

1. Mr Hamade before us has made submissions concerning the merits of his case, but has not really addressed the problem that was dealt with by the Associate Judge. In para 14 of the judgment of the Associate Judge, which is [2011] NSWSC 459, she sets out the pleading in Mr Hamade's statement of claim as follows:

[14] On 24 February 2011, Mr Hamade filed a further amended statement of claim. Mr Hamade claims that, "The State of NSW who is the Defendant Pay defamation Damages Under the Defamation Act 2005 Common law." Mr Hamade pleads that:

The plaintiff Can't get a job and is Defamed. The plaintiff has no tax returns from 2004 to 2010 Regarding employment not exceeding more than one months work. The plaintiff was in early negotiations with NSW legal services on 18 may 2010 advises that police record published from 18 Dec 2002 which is (E15864075) (E26615663) (E408086389) would be removed and a response would be forwarded shortly this response was Declined By the Crown solicitors office and NSW Police on the 28 th June 2010 and forwards 12 Documents to support this 1 to 12 Numbered.

1. It does seem to me that, for the reasons given by the Associate Judge, that pleading does not disclose a cause of action.

1. It is essential under our system of justice that defamation proceedings be commenced by a statement of claim that does set out a cause of action, which then enables a defendant to properly defend the matter. Unfortunately, Mr Hamade has not taken the opportunity to produce a document that does that. In my view, the chances of a successful appeal from the decision of the Associate Judge do not justify the grant of leave, and I would propose that the application for leave to appeal be dismissed with costs.

1. Unfortunately, it appears that Mr Hamade does not understand the necessity that proceedings be commenced by a document that sets out a cause of action; and the deficiencies of his document are properly dealt with in the judgment of the Associate Judge.

1. As I have said, the order that I propose is that the summons for leave to appeal be dismissed with costs, and also that the State's notice of motion be dismissed with no order as to costs.

1. HANDLEY AJA: I agree with Justice Hodgson.

1. HODGSON JA: So the orders of the Court are summons for leave to appeal dismissed with costs, the State's notice of motion dismissed with no order as to costs.

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