Hamod v New South Wales

[2011] NSWCA 375

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hamod v State of New South Wales and Anor [2011] NSWCA 375

Hearing dates:

18-20 July 2011

Decision date:

06 December 2011

Before:

Beazley JA at [1];
Giles JA at [829];
Whealy JA at [830]

Decision:

1. Appeal dismissed;

2. The appellant to pay the respondents' costs of the appeal.

[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:

TORTS - false arrest and false imprisonment - absence of reasonable suspicion to arrest - appellant arrested following investigation by police into allegations that he was attempting to sell a fake certificate of guarantee for platinum - evidence did not establish cause of action

TORTS - malicious prosecution - absence of reasonable and probable cause for prosecution - whether reasonable basis for prosecutor's belief - one charge withdrawn - one charge dismissed - acquitted on remaining charge - evidence did not establish cause of action

TORTS - injurious falsehood - evidence subject to immunity - cause of action not established

TORTS - conspiracy to injure by lawful means - conspiracy to injure by unlawful means - evidence did not establish causes of action

ADMINISTRATIVE LAW - procedural fairness - whether trial judge's descriptions of appellant's evidence and comments upon the magistrate's reasons breached procedural fairness - trial judge considered evidence having regard to its relevance, weight and sufficiency - trial judge's comments upon magistrate's reasons not integral to dismissal of appellant's causes of action - no denial of procedural fairness

COSTS - Civil Procedure Act 2005, s 98(4)(c) - specified gross sum costs order -where appellant impecunious and unlikely to satisfy any costs order - where costs of assessment unlikely to be recouped - whether trial judge's discretion miscarried as to costs - trial judge correctly exercised power to make an order for specified gross sum costs instead of assessed costs

COURTS AND JUDGES - disqualification - apprehended bias - conduct of trial judge in relation to unrepresented litigant - trial judge did not err in refusing to recuse on the ground of apprehended bias

COURTS AND JUDGES - duty to unrepresented litigant - obligation to ensure unrepresented litigant has information about the practice and procedure of the court - obligation to ensure a fair trial

EVIDENCE - admissibility - expert evidence - trial judge did not err in admitting expert evidence where expert not required for cross-examination

EVIDENCE - admissibility - transcript of Local Court proceedings - whether trial judge erred in rejecting the whole of the transcript of Local Court proceedings - trial judge did not err - basis of tender of the transcript was convenience - no identification of the relevant portions of the transcript

EVIDENCE - privilege - immunity given to statements made in court or in connection with court proceedings - statements upon which appellant based claims in injurious falsehood and conspiracy to injure protected by immunity

PRACTICE AND PROCEDURE - adjournment - where appellant did not have legal representation for balance of the hearing - whether trial judge's refusal to grant an adjournment constituted a miscarriage of discretion - trial judge did not err in refusing an adjournment

PRACTICE AND PROCEDURE - Uniform Civil Procedure Rules, r 51.36(2) - challenges to findings of fact - requirement for separate identification in written submissions of challenges made to primary facts found by trial judge

Legislation Cited:

Civil Procedure Act 2005
Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005

Cases Cited:

A v New South Wales [2007] HCA 10; 230 CLR 500
Abram v Bank of New Zealand (1996) ATPR 41-507
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175
Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1 at 5; [1999] FCA 673
Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006
Ballina Shire Council v Ringland (1994) 33 NSWLR 680
Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2005] NSWSC 1339
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; 135 ALR 160
Beale v The Government Insurance Office of NSW (1977) 48 NSWLR 430
Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406
Bi v Mourad [2010] NSWCA 17 at [47]
Bloch v Bloch [1981] HCA 56; 180 CLR 390
Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191
British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109
Bulstrade v Trimble [1970] VR 840 at 849
Cabassi v Vila [1940] HCA 41; 64 CLR 130
Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629
Christie v Leachinsky [1947] AC 573
Clark v State of New South Wales (No 2) [2006] NSWSC 914
Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370; [2007] 70 NSWLR 268
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 557
Conroy v Conroy (1917) 17 SR (NSW) 680
Coulton v Holcombe [1986] HCA 33; 162 CLR 1
Crowley v Glissan (No 2) [1905] HCA 31; 2 CLR 744
D'Orta-Ekenaike v Victoria Legal Aid & Anor [2005] HCA 12; 223 CLR 1
Dawkins v Lord Rokeby (1873) LR 8 QB 255
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Dietrich v R [1992] HCA 57; 177 CLR 292
Dougherty v Chandler (1946) 46 SR (NSW) 370
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Galea v Galea (1990) 19 NSWLR 263
George v Rockett [1990] HCA 26; 170 CLR 104
GG v Regina [2010] NSWCCA 230
Hadid v Lenfest Communications Inc [2000] FCA 628
Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
Hargreaves v Bretherton [1959] 1 QB 45 at 54
Harrison & Anor v Schipp [2002] NSWCA 213; 54 NSWLR 738
Henderson v Broomhead (1859) 4 H & N 569; 157 ER 964
Hicks v Faulkner (1878) 8 QBD 167
House v R [1936] HCA 40; 55 CLR 499
HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302
Idoport Pty Limited v National Australia Bank Limited, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23
Jae Kyung Lee v Bob Chai-Sang Cha [2008] NSWCA 13
Jamieson and Brugmans v R [1993] HCA 48; 177 CLR 574
Jardiniere v Commonwealth [1998] HCA 22; (1998) 195 CLR 337
Johnson v Johnson [2000] HCA 48; 201 CLR 488
Johnstone v State of New South Wales [2010] NSWCA 70; 202 A Crim R 422
Joyce v Motor Surveys [1948] Ch 252
Landini v State of New South Wales [2008] NSWSC 1280
Leary v Leary [1987] 1 WLR 72; [1987] 1 All ER 261
Leeder v Ellis (1952) 86 CLR 64
London Ferro-Concrete Co v Justice 1951 68 RPC 261
Lorenzato v Lorenzato & Anor (No 2) [2011] NSWSC 790
M & E M Holt Pty Ltd v Thompson [2001] NSWCA 359
MacPherson v The Queen [1981] HCA 46; 147 CLR 512
Malouf v Prince [2009] NSWCA 159
Maxwell v Keun [1928] 1 KB 645
McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308
Michael v Western Australia [2007] WASCA 100
Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54
Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438
Mitchell v John Heine (1938) 38 SR (NSW) 466
Mudginberri Station Pty Ltd v Australasian Meat Industry Employees' Union and Others (1986) 12 FCR 10
NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944
Nagy v Ryan [2003] SASC 37
Nominal Defendant v Saleh [2011] NSWCA 16
Ollis v New South Wales Crime Commission [2007] NSWCA 311; 177 A Crim R 306
Palmer-Bruyn and Parker Pty Ltd v Parsons [2001] HCA 69; 208 CLR 388
Pezos v Police (2005) 94 SASR 154
Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419
R v Beydoun (1990) 22 NSWLR 256
R v Gidley (1984) 3 NSWLR 168
R v Skinner (1772) Lofft 54 at 56; (1772) 98 ER 529
R v Zorad (1990) 19 NSWLR 91
Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported)
Ratcliffe v Evans [1982] 2 QB 524
Richards v Cornford (No 3) [2010] NSWCA 134
Savage v Australian Unity Funds Management Ltd [2011] NSWCA 270
Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275
Selwan Property Holdings Pty Ltd v Grocon Constructions Pty Ltd [2009] NSWCA 73
Seville v Constance [1954] 1 WLR 47 at 490
Seymour v ABC; Reid v Kerr (1974) 9 SASR 367
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
Smoothpool v Pickering [2001] SASC 131
Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788
Sony Entertainment (Aust) Ltd v Smith; Microsoft v Jiang (2003) 58 IPR 445; [2003] FCA 101
Sparnon v Apand Pty Ltd (FCA, 4 March 1998, unreported)
Squire v Rogers (1979) 39 FLR 106
State of New South Wales v Delly [2007] NSWCA 303; (2007) 70 NSWLR 125
The Will of Gilbert (1946) 46 SR (NSW) 318
Tomasevic v Travaglini [2007] VSC 337; 17 VR 100
Tripple Take Pty Ltd v Clark Rubber Franchising Pty Ltd [2005] NSWSC 1169
Vakauta v Kelly (1988) 13 NSWLR 502
Vasser v Taylor Black [2010] FamCAFC 36
Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402
Wentworth v Wentworth (Court of Appeal, 21 February 1996, unreported)

Texts Cited:

Bullen & Leake, Precedents of Pleading, 3rd ed (1868)
Carolyn Sappideen and Prue Vines, Fleming's The Law of Torts, 10th ed (2011)
Ritchie's Uniform Civil Procedure NSW, LexisNexis, Sydney 2005

Category:

Principal judgment

Parties:

Anthony Hamod (Appellant)
State of New South Wales (First Respondent)
UBS Australia Pty Limited (Second Respondent)

Representation:

D E Baran (Appellant)
J E Maconachie QC; M Hutchings (First Respondent)
R Speakman SC (Second Respondent)
John Stoneham & Co (Appellant)
Crown Solicitors Office (First Respondent)
Allens Arthur Robinson (Second Respondent)

File Number(s):

2009/298312

 Decision under appeal 

Citation:

Hamod v State of New South Wales (No 10) [2008] NSWSC 611;
Hamod v State of New South Wales (No 11) [2008] NSWSC 967;
Hamod v State of New South Wales (No 12) [2009] NSWSC 242;
Hamod v State of New South Wales (No 13) [2009] NSWSC 756

Before:

Harrison J

File Number(s):

SC 20147/2003

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Hamod (the appellant) was in possession of a document which he contended was a genuine bearer certificate issued by UBS AG for 4590 tonnes of Platinum (the Platinum Certificate) with a face value of approximately $66 billion. Mr Hamod attempted to sell the Platinum Certificate to a merchant bank, Utilis Australia Pty Ltd (Utilis). Utilis made inquiries of UBS as to the genuineness of the Platinum Certificate and was informed that it was a fake. UBS reported the matter to the NSW Fraud Enforcement Agency who set up a planned operation, with the cooperation of UBS and Mr Wall, an investment banker with Utilis. As part of the planned operation, Mr Wall was to engage in a transaction with Mr Hamod for the purchase of the Platinum Certificate.

Mr Hamod was arrested on 20 January 1995 in the course of the purported sale of the Platinum Certificate to Mr Wall. He was charged with two offences under the Crimes Act 1900, s 178BB - making a false statement with intent to obtain a financial advantage, and one offence under the Crimes Act 1900, s 300(2) - using a forged certificate to do an act to another person's prejudice. The first of the two s 178BB charges was withdrawn prior to the commencement of the committal proceeding. The s 300(2) charge was discharged by the Magistrate at the committal proceeding. The appellant was acquitted of the remaining s 178BB charge.

Mr Hamod brought proceedings against the State of New South Wales (first respondent) for false arrest and imprisonment, malicious prosecution and injurious falsehood. He also brought proceedings against UBS (second respondent) for conspiracy to injure by unlawful means or by lawful means and for injurious falsehood. The trial judge found verdicts for the State and for UBS on all causes of action and made a gross sum costs order against Mr Hamod.

Mr Hamod appealed against the dismissal of his causes of action and the costs order. Mr Hamod also appealed against two interlocutory judgments relating to his Honour's refusal to admit the transcript of the Local Court proceedings into evidence and his refusal to recuse on the ground of apprehended bias. In all, the appellant raised 25 grounds of appeal and challenged 10 purported findings of fact.

Held (dismissing the appeal):

(1)   His Honour did not err in refusing an adjournment, notwithstanding that Mr Hamod did not have legal representation for the balance of the hearing.

Conroy v Conroy (1917) 17 SR (NSW) 680; Squire v Rogers (1979) FLR 106; Vasser v Taylor Black [2010] FamCAFC 36; The Will of Gilbert (1946) 46 SR (NSW) 318; Civil Procedure Act , s 56(1); Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175; Bloch v Bloch [1981] HCA 56; 180 CLR 390; Maxwell Keun [1928] 1 KB 645; Mudginberri Station Pty Ltd v Australasian Meat Industry Employees' Union and Others (1986) 12 FCR 10; McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308.

(2)   His Honour was not obliged to admit the whole of the transcript of the Local Court proceedings in circumstances where the basis of the tender was for convenience, without any identification of the relevant portions of the transcript.

Evidence Act , ss 55 and 56.

(3)   His Honour did not err in refusing to recuse on the ground of apprehended bias.

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342; Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd [1996] FCA 1308; (1996) 65 FCR 215; Vakauta v Kelly (1988) 13 NSWLR 502; Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 557.

(4)   The court has a duty to ensure that an unrepresented litigant does not suffer disadvantage from exercising the right to be self-represented. A trial judge has an obligation to take appropriate steps to ensure that an unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The trial judge did not fail in that duty.

Dietrich v R [1992] HCA 57; 177 CLR 292; MacPherson v The Queen [1981] HCA 46; 147 CLR 512; R v Zorad (1990) 19 NSWLR 91; Tomasevic v Travaglini [2007] VSC 337; 17 VR 100; Barghouthi v Transfield Pty Ltd [2002] FCA 666; 122 FCR 19; NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 944; Nagy v Ryan [2003] SASC 37; Jae Kyung Lee v Bob Chai-Sang Cha [2008] NSWCA 13 ; Bhagwanani v Martin (1999) 204 LSJS 449; [1999] SASC 406; Clark v State of New South Wales (No 2) [ 2006] NSWSC 914; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438.

(5)   Contrary to Mr Hamod's submissions, his Honour did not find that Mr Hamod's failure to cross-examine witnesses meant that he had accepted the evidence of the respondents' witnesses as truthful. Rather, his Honour's finding was that Mr Hamod's own evidence did not establish the causes of action upon which he had sued.

Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219; Knight v Maclean [2002] NSWCA 314; Reid v Kerr (1974) 9 SASR 367; Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419; HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302; Ali v Nationwide News Pty Ltd [2008] NSWCA 183; N ominal Defendant v Saleh [2011] NSWCA 16.

(6)   The validity of the Platinum Certificate was in issue in the proceedings. The evidence that it was not genuine was overwhelming.

Coulton v Holcombe [1986] HCA 33; 162 CLR 1 (distinguished).

(7)   His Honour did not err in admitting and accepting the opinions and conclusions of Mr Westwood in circumstances where Mr Westwood had not been required for cross-examination.

(8)   Mr Hamod's circumstantial case that the Platinum Certificate was genuine failed.

(9)   Mr Hamod failed to establish his causes of action for false arrest and imprisonment and malicious prosecution.

George v Rockett [1990] HCA 26; 170 CLR 104; Christie v Leachinsky [1947] AC 573; State of New South Wales v Delly [2007] NSWCA 303; (2007) 70 NSWLR 125; Johnstone v State of New South Wales [2010] NSWCA 70; 202 A Crim R 422; State of NSW v Tyszyk [2008] NSWCA 107.

(10)   The statements upon which Mr Hamod based his claims in injurious falsehood and conspiracy to injure were protected by the immunity given to statements made in court or in connection with court proceedings.

R v Skinner (1772) Lofft 54; (1772) 98 ER 529; D'Orta-Ekenaike v Victoria Legal Aid & Anor [2005] HCA 12; (2005) 223 CLR 1; Ollis v New South Wales Crime Commission [2007] NSWCA 311; 177 A Crim R 306; Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370; [2007] 70 NSWLR 268; Jamieson and Brugmans v R [1993] HCA 48; 177 CLR 574; R v Beydoun (1990) 22 NSWLR 256; Dawkins v Lord Rokeby (1873) LR 8 QB 255; Hargreaves v Bretherton [1959] 1 QB 45; Cabassi v Vila [1940] HCA 41; 64 CLR 130.

(11)   His Honour should not have disregarded the evidence of Mr Jason Lymbery. Nonetheless, his Honour did not err in determining that the evidence of Mr Lymbery could be disregarded as regard to Mr Lymbery's evidence would not have brought a different conclusion from that at which his Honour arrived.

(12)   There was no denial of procedural fairness in giving particular descriptions such as " spy thriller " and the like to Mr Hamod's evidence. Evidence has to be considered having regard to its relevance, weight and sufficiency. His Honour attended to that task in making detailed evidentiary rulings, not challenged on the appeal, and in determining whether the evidence was sufficient to establish Mr Hamod's causes of action.

Beale v The Government Insurance Office of NSW (1977) 48 NSWLR 430; Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402.

(13)   His Honour's comments upon the Magistrate's reasons were not integral to his reasoning and his dismissal of Mr Hamod's claims. Accordingly, no question of procedural fairness arose.

(14) Uniform Civil Procedure Rules, r 51.36(2) requires the separate identification in the written submissions of substantial challenges made to primary facts found by the trial judge. It is not directed to conclusions drawn by the trial judge from primary facts; or to challenges based upon an argument that there was no evidence to support a conclusion; or to challenges made on the basis that the trial judge applied a wrong legal test.

(15)   His Honour's discretion did not miscarry as to costs. His Honour correctly exercised his power to make an order for specified gross sum costs.

Civil Procedure Act , s 98(4)(c); Idoport Pty Limited v National Australia Bank Limited, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23; Savage v Australian Unity Funds Management Ltd [ 2011] NSWCA 270; Harrison & Anor v Schipp [2002] NSWCA 213; 54 NSWLR 738; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; 135 ALR 160; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629; Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006; Leary v Leary [1987] 1 WLR 72; [1987] 1 All ER 261; Sony Entertainment (Aust) Ltd v Smith; Microsoft v Jiang (2003) 58 IPR 445; [2003] FCA 101; Smoothpool v Pickering [2001] SASC 131.

Judgment

INDEX
Section (1): Introduction	[1]
Issues on the appeal	[4]
Mr Hamod's arrest and imprisonment	[5]
The committal proceedings	[9]
Mr Hamod's pleaded case	[12]
General pleadings	[12]
Pleaded case against the State	[15]
False arrest and false imprisonment (sixth amended statement of claim paras (49)-(59))	[15]
Malicious prosecution (sixth amended statement of claim paras (60)-(76))	[16]
Injurious falsehood by members of the New South Wales Police (sixth amended statement of claim paras (77)-(83))	[21]
The State's defence	[23]
Pleaded case against UBS	[27]
Conspiracy to injure by unlawful means (sixth amended statement of claim paras (36)-(42))	[27]
Conspiracy to injure by lawful means (sixth amended statement of claim paras (43)-(48))	[30]
UBS' pleaded defence	[31]
Identity of persons referred to in the pleadings	[32]
Conduct of the proceedings	[33]
The background facts stated by Mr Hamod in his statement of evidence and summarised by Harrison J	[40]
Events pre-September 1994	[42]
Events in Australia	[57]
SECTION (2): THE ADJOURNMENT ISSUE: ground 22	[62]
20 August 2008	[66]
28 August 2008	[73]
Trial judge's reasons of 29 August 2008	[85]
Mr Hamod's submissions	[107]
The respondent's submissions	[113]
Mr Hamod's submissions in reply	[120]
An apparently odd turn in Mr Hamod's submissions	[122]
The medical evidence	[127]
Principles governing the Court's discretion on an adjournment application	[131]
Did his Honour err in refusing the adjournment?	[146]
Conclusion on the adjournment issue	[153]
Section (3): The transcript issue: Hamod v State of New South Wales (No 10) [2008] NSWSC 611	[154]
Mr Hamod's submissions	[162]
Mr Hamod's oral submissions	[168]
The respondent's submissions	[180]
Did his Honour err in not admitting the whole of the transcript?	[182]
The Crown opening	[191]
Detective Sergeant Eastham's evidence	[197]
Mr Muhlbauer	[206]
Detective Sergeant Riddle	[211]
Dr Frey	[216]
Detective Senior Constable Day	[221]
Mr Wall	[237]
Conclusion on the transcript issue	[243]
Section (4): The bias issue: Hamod v State of New South Wales (No 11 ) [2008] NSWSC 967	[254]
Legal principles	[258]
Trial judge's reasons	[260]
Mr Hamod's submissions	[270]
Consideration of the transcript of proceedings before Harrison J	[273]
Has the case of apprehended bias been made out?	[308]
Courts' duty to unrepresented litigants	[309]
Consideration of Mr Hamod's submissions	[317]
Conclusion on bias issue	[332]
SECTION (5): THE CROSS-EXAMINATION ISSUE: grounds 18 and 19	[334]
Mr Hamod's submissions	[334]
Legal principles	[336]
Trial judge's reasons	[341]
Mr Hamod's submissions	[347]
Conclusion on the cross-examination issue	[353]
SECTION (6): VALIDITY OF THE PLATINUM CERTIFICATE: grounds 3, 4, 7, 14 and 20	[354]
Was the Platinum Certificate genuine?	[355]
Mr Schicker's evidence	[359]
Mr Gauch's evidence	[374]
Mr Mueller-Lhotska's evidence	[382]
Ground 7: Mr Hamod's submissions	[384]
Conclusion on ground 7	[390]
Ground 14: Mr Hamod's submissions	[394]
Conclusion on ground 14	[395]
Ground 20: Mr Hamod's submissions	[398]
UBS' submission that Mr Westwood was not required for cross-examination	[406]
Conclusion on ground 20	[411]
Grounds 3 and 4: Mr Hamod's submissions	[413]
The respondents' submissions	[417]
Conclusion on grounds 3 and 4	[420]
SECTION (7): FALSE ARREST AND FALSE IMPRISONMENT: ground 15	[421]
The power of arrest: legal principles	[422]
The pleaded case	[427]
Additional facts relating to false arrest	[430]
Mr Damanik's involvement with the Platinum Certificate	[433]
Mr Ludowici's evidence	[439]
Mr Wall's interaction with Mr Hamod and Mr Balding	[451]
Mr Teh's evidence	[482]
The intercepted conversations of 20 January 1995	[488]
Detective Senior Constable Day's involvement in Mr Hamod's arrest	[499]
The Record of Interview	[502]
Detective Senior Constable Day's fact sheet	[525]
The trial judge's reasons	[527]
Mr Hamod's submissions	[535]
Was Mr Hamod's arrest lawful?	[545]
Conclusion as to false arrest and false imprisonment	[556]
SECTION (8): MALICIOUS PROSECUTION: grounds 9, 12 and 16	[564]
Legal principles	[564]
The pleaded case	[576]
Trial judge's findings	[580]
Submissions on the appeal	[585]
Material upon which Mr Hamod relied	[588]
Mr Hamod's written statement handed to Detective Sergeant Eastham	[588]
The Buy/Sell Agreement	[598]
Intercepted conversations and Record of Interview	[605]
Evidence as to validity of the Platinum Certificate	[606]
Other evidence in the possession of the police	[607]
Mr Balding's statement	[607]
Mr O'Dowd's statement	[624]
Other evidence	[634]
Detective Senior Constable Day's evidence	[635]
Was the prosecution initiated and maintained without reasonable and probable cause?	[636]
Conclusion on malicious prosecution	[656]
SECTION (9): INJURIOUS FALSEHOOD BY MEMBERS OF THE NEW SOUTH WALES POLICE: ground 17	[659]
The pleaded case	[659]
The newspaper publications	[666]
The trial judge's reasons	[678]
Submissions on the appeal	[682]
The State's submissions in respect of the claim for injurious falsehood	[687]
The nature of the cause of action in injurious falsehood	[689]
Was actual damage proved?	[693]
Where the statements also false and made with malice?	[694]

Conclusion on injurious falsehood: para 77(a)-(d)	[701]
Were the statements alleged in (77)(e)-(f) and (h) protected by the immunity of statements made in court or made in relation to court proceedings?	[702]
Conclusion on injurious falsehood: para (77)(e)-(f) and (h)	[712]
SECTION (10): THE CAUSES OF ACTION BASED IN CONSPIRACY BY UBS: ground 21	[716]
The pleaded case	[716]
Trial judge's reasons	[721]
Conclusion on the conspiracy claims	[722]
SECTION (11): EVIDENCE OF JASON LYMBERY: ground 13	[728]
Trial judge's reasons	[730]
Mr Hamod's submissions	[732]
Nature of Mr Lymbery's evidence	[735]
Conclusion on Mr Lymbery's evidence	[742]
Section (12): The natural justice issues: grounds 1, 2, 5, 6, 8, 10 and 11	[744]
Principles relating to an absence of reasons	[747]
Mr Hamod's submissions	[750]
Consideration of specific statements of which complaint is made	[757]
Additional complaints: bias (ground 6); erroneous finding (ground 8) and irrelevant consideration (ground 10)	[769]
Conclusion on natural justice issues	[772]
SECTION (13): CHALLENGES TO FINDINGS OF FACT	[773]
SECTION (14): THE COSTS ISSUE: HAMOD v STATE OF NEW SOUTH WALES (No 13) [2009] NSWSC 756	[777]
Evidence and arguments in the proceedings below	[780]
Mr Hamod and Hamock Investments Pty Ltd	[780]
The State	[784]
UBS	[788]
Trial judge's reasons	[793]
Submissions on appeal	[798]
Mr Hamod	[798]
The State	[803]
UBS	[804]
Mr Hamod's response to the State and UBS	[807]
Legal principles	[813]
Conclusion on the costs issue	[821]
CONCLUSION ON THE APPEAL	[828]

Section (1): Introduction

1. BEAZLEY JA : The appellant, Mr Hamod, brought proceedings against the first respondent, the State of New South Wales (the State), for false arrest, malicious prosecution and injurious falsehood, and against the second respondent, UBS Australia Limited (UBS), for conspiracy to injure and for injurious falsehood. The proceedings were commenced following the State's unsuccessful prosecution of Mr Hamod for charges under the Crimes Act 1900, s 178BB and s 300 of making a false statement to obtain a financial advantage. A second s 178BB charge was withdrawn prior to the commencement of committal proceedings. The charge under s 300 was dismissed at committal. The charges related to Mr Hamod's purported conduct in attempting to sell a bearer certificate for nearly 5 M tonnes of platinum (the Platinum Certificate) with a face value of approximately $66 B.

1. A company associated with Mr Hamod, Hamock Investments Pty Ltd (Hamock Investments), was a second plaintiff in the proceedings against each of the State and UBS. Hamock Investments' proceedings as against UBS were dismissed by consent on 14 November 2009. All remaining claims were dismissed by Harrison J after a contested hearing: Hamod v State of New South Wales (No 12) [2009] NSWSC 242 (the principal judgment).

1. Mr Hamod now appeals to this Court against the dismissal of his claims against the State and against the dismissal of the conspiracy claims against UBS. His appeal includes complaints as to interlocutory orders and rulings that were made against him in the course of the proceedings: see Hamod v State of New South Wales (No 10) [2008] NSWSC 611; Hamod v State of New South Wales (No 11) [2008] NSWSC 967. He also appeals against the costs order made by the trial judge: Hamod v State of New South Wales (No 13) [2009] NSWSC 756.

Issues on the appeal

1. Mr Hamod raised 25 grounds of appeal and challenged 10 purported findings of fact. Unless otherwise specified, the grounds relate to the principal judgment. Many of the grounds are overlapping, as were the submissions in support of them. However, in an attempt to deal in a coherent way with the issues raised by the grounds of appeal, I have put them in categories. The categories themselves overlap to some extent, as does the evidence in relation to the various categories. Accordingly, I have structured these reasons in sections so as to minimise the repetition that would otherwise have occurred. The sections of the judgments are as follows:

(1) Introduction.

(2) The refusal of Mr Hamod's adjournment application to vacate the hearing days appointed to commence on 8 September: ground 22 (the adjournment issue).

(3) The refusal of the trial judge to admit the whole of the transcript of the Local Court proceedings: ground 1: (No 10) [2008] NSWSC 611 (the transcript issue).

(4) His Honour's refusal to recuse himself on the ground of bias: ground 1: (No 11) [2008] NSWSC 967 (the bias issue).

(5) His Honour's treatment of evidence that was not subject to cross-examination by Mr Hamod: grounds 18 and 19 (the cross-examination issue).

(6) Issues relating to whether the Platinum Certificate was genuine: grounds 3, 4, 7, 14 and 20 (the validity of the Platinum Certificate issue).

(7) The false arrest issue: ground 15.

(8) The malicious prosecution issue: grounds 9, 12 and 16.

(9) The injurious falsehood issue: ground 17.

(10) The conspiracy to injure issue: ground 21.

(11) The failure to accord any weight to the evidence of Jason Lymbery: ground 13 (the Jason Lymbery issue).

(12) His Honour's failure to accord natural justice: grounds 1, 2, 5, 6, 8, 10 and 11 (the natural justice issue).

(13) Challenges to findings of fact.

(14) His Honour's making a lump sum costs order: (No 13) [2009] NSWSC 756 (the costs issue).

Mr Hamod's arrest and imprisonment

1. Commencing in late 1994, Mr Wall, an investment banker with Utilis Australia Pty Ltd (Utilis), entered into negotiations with Mr Hamod relating to the purchase of the Platinum Certificate. Mr Wall had agreed with Mr Hamod that he would seek out a potential buyer of the Certificate. Mr Wall became suspicious as to whether the Platinum Certificate was a valid document and sought advice from UBS. UBS' advice was that the Platinum Certificate was not genuine and it referred the matter to the police. Thereafter, Mr Wall and UBS cooperated with the Fraud Enforcement Agency, in an operation code named " Operation Cleggars ", which was put in place to investigate Mr Hamod's attempts to sell what appeared to be a false or fraudulent document.

1. Mr Hamod was arrested on 20 January 1995 at the National Australia Bank, whilst meeting with Mr Muhlbauer, Detective Biaggi (who was acting in the capacity of an intended buyer of the Platinum Certificate) and Mr Wall. Mr Balding, accountant, Mr Lees, solicitor and Mr Done, the bank manager of the Advance Bank branch at Nowra, were also present with Mr Hamod. Mr Hamod took part in an electronically recorded interview later the same day. The recorded interview extended to 110 pages and some 453 questions and answers. In his Record of Interview, Mr Hamod asserted that the Platinum Certificate was genuine and that he had authenticated the Certificate. He denied that he had asked for an up-front fee or had acted with an intention to defraud.

1. Following the Record of Interview, Mr Hamod was charged with three offences under the Crimes Act , one offence under s 300(2) and two offences under s 178BB. The particulars of the offences as contained in the charge sheet were as follows:

Section 300(2)

"That ANTHONY HAMOD between the 13th day of October 1994, and the 20th day of January 1995, at SYDNEY in the State of New South Wales, did use an instrument, to wit, a forged certificate of guarantee for 4,590 tonnes of platinum issued by the Union Bank of Switzerland which was, and which the said ANTHONY HAMOD knew to be false, with the intention of inducing another person to accept the instrument as genuine and because of that acceptance, to do or not to do some act to that other person's or to another person's prejudice."

Section 178BB

"That ANTHONY HAMOD between the 13th day of October 1994, and the 20th day of January 1995, between SYDNEY and NOWRA in the State of New South Wales, with intent to obtain for himself a financial advantage to wit, $60 Billion concurred in making a statement, to wit, the legitimate title of a certificate of guarantee for 4,590 tonnes of platinum issued by the Union, Bank of Switzerland, which he knew to be false or misleading in a material particular and was made with reckless disregard as to whether it was true or false or misleading in a material particular."

Section 178BB

"That ANTHONY HAMOD between the 13th day of October 1994, and the 20th day of January 1995, between SYDNEY and NOWRA in the State of New South Wales, with intent to obtain for himself a financial advantage to wit, $250 million dollars, concurred in making a statement, to wit, the legitimate title of a certificate of guarantee for 4,590 tonnes of platinum issued by The Union Bank of Switzerland which he knew to be false or misleading in a material particular and was made with reckless disregard as to whether it was true or false or misleading in a material particular."

1. Mr Hamod was taken into custody where he remained for over seven months until 24 August 1995, when he was released on bail.

The committal proceedings

1. On 17 March 1997, committal proceedings commenced before Magistrate Horler in the Local Court. On 5 March 1997, prior to the commencement of the committal hearing, the first of the two s 178BB charges was withdrawn. The remaining s 178BB charge was amended and further particularised on 24 March 1997. The s 178BB charge that was ultimately dealt with by Magistrate Horler was particularised as follows:

"That between the 13th October 1994 and 20th January 1995 the defendant with intent to obtain for himself and others a financial advantage ... made a statement to wit that a certificate of guarantee for 4590 tonnes of platinum issued by the Union Bank of Switzerland was genuine and that he had authenticated that certificate with UBS bank officers in Geneva, which statements he knew to be false or misleading in a material particular and which were made with reckless disregard as to whether they were true or false or misleading in a material particular."

1. Mr Hamod was discharged on the s 300(2) charge on 3 June 1997. On the same day, Magistrate Horler found a prima facie case on the remaining s 178BB charge. Mr Hamod accepted an offer of summary jurisdiction under the Crimes Act , s 476 and the matter proceeded before her Honour on that basis.

1. On 3 April 1998, Magistrate Horler acquitted Mr Hamod of the remaining s 178BB charge.

Mr Hamod ' s pleaded case

General pleadings

1. In order to give context to the issues raised on the appeal it is convenient at this point to refer briefly to the pleaded case. More detailed reference to the pleadings is made when dealing with specific grounds of appeal. As Mr Hamod is the sole appellant, there is no reference to the pleaded case of Hamock Investments.

1. Mr Hamod pleaded, by way of background facts, that PT Galaxy Indonesia Trust (Galaxy) was the true owner as the last holder of a certificate for 4590 tonnes of platinum (the Platinum Certificate), said to have been issued on or about 27 October 1978 by the Union Bank of Switzerland (UBS AG), the Swiss parent company of UBS. Mr Hamod pleaded that the Platinum Certificate in the hands of the bearer constituted evidence of the ownership of the commodity to which it related as against all but the true owner. He also pleaded that on or about 27 June 1994, he entered into an agreement with Galaxy to sell the Platinum Certificate and other bullion certificates in return for a commission. Mr Hamod alleged that in about July 1994, he began negotiations to sell the Platinum Certificate to third parties. He pleaded that in about November 1994, he entered into an agreement with Hamock Investments, a company which he had caused to be incorporated and in which he was a shareholder, to negotiate the sale of the Platinum Certificate " subject to the approval of " Mr Hamod (at [2]). Mr Hamod pleaded that the Platinum Certificate was authentic and genuine.

1. Mr Hamod further pleaded that between July 1994 and about January 1995, he negotiated the sale of the Platinum Certificate with various purchasers. Mr Hamod pleaded that in about mid-October 1994, UBS offered the appellant " the right to deposit the Platinum Certificate with its organisation and withdraw funds against it ". Mr Hamod alleged that he declined that offer. Mr Hamod next pleaded that on or about 17 October 1994, UBS negotiated with him to purchase the Platinum Certificate. Mr Hamod alleged that by 2 January 1995, UBS was ready to purchase the Platinum Certificate for $66 B.

Pleaded case against the State

False arrest and false imprisonment (sixth amended statement of claim paras (49)-(59))

1. Mr Hamod alleged that members of the police force had been made aware, prior to 20 January 1995, of false allegations made by Galaxy that he had stolen the Platinum Certificate. He alleged that the police knew the Platinum Certificate was genuine and had no reasonable or probable cause to believe that it was not authentic. Notwithstanding that the police had knowledge of or were aware of these matters, Mr Hamod was arrested at premises of the National Australia Bank in Sydney, detained at Strawberry Hills Police Station and then gaoled at Parramatta, Goulburn and Long Bay gaols until 24 August 1995 in circumstances where Detective Peter Biaggi, an undercover police officer posing as a buyer, knew from conversations with a representative from UBS, Mr Muhlbauer, that the Platinum Certificate was genuine. Mr Hamod pleaded that he suffered loss and damage as a result.

Malicious prosecution (sixth amended statement of claim paras (60)-(76))

1. Mr Hamod pleaded that from about 20 January 1995 until 2 April 1998, the Commissioner of Police and New South Wales Director of Public Prosecutions initiated and maintained a prosecution against him for offences under the Crimes Act , ss 300 and 178BB in circumstances where by October/November 1994, the police knew, as a result of threats made by Galaxy, that he was in possession of a valid Platinum Certificate and that Galaxy was trying to retrieve the Certificate by making a false allegation that he had stolen it. Mr Hamod also pleaded that the police knew that UBS had negotiated the purchase of the Platinum Certificate for $66 B.

1. The pleading alleged that as at 20 January 1995 the police were in possession of and knew that the Platinum Certificate was valid, being " a legitimate title " of a Certificate of Guarantee to 4590 tonnes of platinum issued by UBS AG. Mr Hamod pleaded that notwithstanding this knowledge, the police charged and prosecuted him with an offence under s 178BB when there was an absence of reasonable or probable cause as to his guilt: para (72).

1. Mr Hamod particularised four sources of the police's knowledge that the Platinum Certificate was valid: discussions with Detective Sergeant Eastham of Nowra police; knowledge of the relationship between Galaxy and Mr Hamod and Galaxy's false allegation of theft of the Platinum Certificate; possession of evidence from a business associate, Mr Geoff Adelman in Canada, who had verified the authenticity of the Certificate; and an admission by Mr Muhlbauer, of UBS, to police on 20 January 1995 that the Platinum Certificate was genuine.

1. Mr Hamod pleaded, alternatively, that there were significant doubts as to the validity of the prosecution, in that it had no possibility of success and was groundless. In the circumstances, it was alleged that the prosecution was malicious. Mr Hamod alleged loss and damage as a result.

1. It is important to note that although the three offences with which Mr Hamod was initially charged were referred to in the pleading at para (60), the pleaded case of malicious prosecution was based only on the bringing and maintenance of the charge under s 178BB of which he was acquitted: see para (72).

Injurious falsehood by members of the New South Wales Police (sixth amended statement of claim paras (77)-(83))

1. Mr Hamod pleaded that on or about 20 January 1995, members of the New South Wales Police force made a series of statements to the media that they believed Mr Hamod was alleged to have committed the world's largest fraud attempt, or at least the biggest in Australia. Police also allegedly stated that they believed the Platinum Certificate to have been forged, that Mr Hamod had been the managing director of a small south coast engineering company that had gone bankrupt and that he had " slashed the $78 billion price of the certificate to just $250 M ".

1. Mr Hamod alleged that at the time of making these statements, the officers in question knew that the matters were false and that their publication was likely to damage him. The publications were alleged to have been " actuated by malice in law ". Mr Hamod alleged that he sustained loss and damage, as the natural and probable result of the publications was that he lost the ability to trade either internationally or at all in order to sell the Platinum Certificate.

The State's defence

1. The State's defence was predicated on the Platinum Certificate being false or fake or a forgery; the New South Wales Police having been so informed by UBS; and also having been informed by UBS that Mr Hamod was passing the Platinum Certificate off as a genuine document issued by it. The State denied that the Platinum Certificate was genuine or evidence of the ownership of any commodity. The State also denied that the New South Wales Police knew or were in possession of information sufficient for them to have known that the Platinum Certificate was genuine.

1. The State denied that Mr Hamod was falsely arrested or imprisoned. It pleaded that at the time of the arrest the police officers effecting the arrest suspected Mr Hamod of having committed an offence and had reasonable cause to have that suspicion and were accordingly legally justified in arresting Mr Hamod.

1. The State also denied that any prosecution of Mr Hamod was instituted maliciously or without reasonable or probable cause.

1. The State did not admit the allegations that the Police had made certain statements to the media, or that they knew such statements were false, or were likely to injure Mr Hamod. It denied it had sufficient information to know the Platinum Certificate was genuine and denied that it was liable to Mr Hamod for injurious falsehood.

Pleaded case against UBS

Conspiracy to injure by unlawful means (sixth amended statement of claim paras (36)-(42))

1. Mr Hamod alleged that UBS knowingly entered into an agreement, arrangement or understanding with its parent company, UBS AG, to make false statements to the New South Wales Police that the Platinum Certificate was a forgery, in order to prevent Mr Hamod from selling it to a third party. Mr Hamod alleged that UBS and UBS AG made statements to the New South Wales Police and to the Local Court alleging that Mr Hamod was in possession of the Platinum Certificate, which he was passing off as genuine when it was a fake. He alleged that the makers of the statements knew that the statements that the Platinum Certificate was a fake were false.

1. Mr Hamod pleaded by way of overt acts of the arrangement that UBS laid an information with the New South Wales police alleging that Mr Hamod was in possession of the Platinum Certificate and was passing it off as genuine, when in fact it was a fake or a forgery.

1. Mr Hamod alleged that the intention of UBS was to injure him by causing him to suffer financial harm by preventing him from negotiating, selling or otherwise dealing with the Platinum Certificate. Mr Hamod alleged that he in fact suffered such loss.

Conspiracy to injure by lawful means (sixth amended statement of claim paras (43)-(48))

1. Mr Hamod pleaded in the alternative, that in making the statements, UBS had no basis for asserting that the Platinum Certificate was a fake or a forgery, but did so for the sole purpose of stopping him from selling the Certificate on the open market. Mr Hamod alleged that he suffered loss and damage in that he was charged with offences under s 178BB and was thereby unable to trade the Platinum Certificate.

UBS' pleaded defence

1. UBS denied that the Platinum Certificate was issued by UBS AG and pleaded that it was a forged and invalid document. It pleaded that on 12 December 1994, after having become aware of the existence of the Platinum Certificate and verifying that it was a forgery, UBS, through Mr Ludowici, UBS' Executive Director, Logistics, sent a facsimile to Mark Henderson of the Fraud Enforcement Agency in which he informed Mr Henderson that the Platinum Certificate was bogus.

Identity of persons referred to in the pleadings

1. This is a convenient place to identify the persons referred to in the pleadings. Other persons relevant to the issues in the appeal will be identified as required in the course of these reasons.

• Detective Sergeant Russell Eastham of Nowra Police. Detective Sergeant Eastham was a pivotal character in Mr Hamod's case. In October 1994, Mr Hamod had attended Nowra Police Station and reported to Detective Sergeant Eastham that he allegedly had been threatened over his possession of the Platinum Certificate.
• Mr Geoff Adelman, a business associate of Mr Hamod in Canada.
• Mr John McMurtrie, Managing Director, UBS.
• Mr Phillip Muhlbauer, Chief of Staff, UBS.
• Mr Nicholas Wall, Investment Banker, Utilis. Mr Wall was the person with whom Mr Hamod negotiated the sale of the Platinum Certificate.
• Mr Phillip Ludowici, Executive Director, Logistics, UBS. Mr Ludowici was the person to whom Mr Wall spoke about the authenticity of the Platinum Certificate.
• Mr Michael Teh, Associate, Utilis.
• Mr Rene Schicker, Investigations Officer, UBS AG. Mr Schicker provided the initial advice that the Platinum Certificate was not genuine.
• Detective Constable First Class Mark Henderson, Fraud Enforcement Agency, New South Wales Police Force. Detective Constable Henderson was the person to whom Mr Ludowici first made the complaint about Mr Hamod and the Platinum Certificate.
• It is also convenient at this point to identify the arresting officers, Detective Senior Constable Andrew Day (now deceased) and Detective Sergeant Craig Riddle.
• Detective Senior Constable Day was identified by his Honour as the relevant prosecutor for the purposes of the claims in false arrest and malicious prosecution. There was no challenge to this finding.

Conduct of the proceedings

1. Pursuant to directions made by the Court, the evidence-in-chief of the parties was presented by way of statements of evidence of witnesses. Mr Hamod filed a statement of evidence dated 26 July 2007, comprising 342 pages and 1256 paragraphs. Significant portions of the statement were rejected or admitted on a limited basis. In addition, the police brief served on Mr Hamod for the purposes of the Local Court proceedings was tendered in Mr Hamod's case. The police brief was admitted as evidence of the fact and its content only.

1. The State filed statements of evidence by police officers and others involved in Mr Hamod's arrest and prosecution. It also filed statements of evidence relating to the authenticity of the Platinum Certificate.

1. UBS filed statements by officers and employees of UBS AG and UBS, relating to the authenticity of the Platinum Certificate.

1. The hearing of the proceedings commenced before Harrison J on 2 June and concluded on 17 September 2008 (save for final submissions which were made on 21 October 2008). Apart from the hearing of an adjournment application on 20, 27 and 28 August, there was a break in the proceedings from 20 June until 8 September 2008. In total, there were 15 days of hearing.

1. During the proceedings, Mr Hamod sometimes appeared for himself and at other times was represented by senior or junior counsel. The details of the representation are set out below at [38]. Mr Hamod was represented by counsel on the appeal, including for the preparation of the written submissions. The detail of this is important, as a significant theme of Mr Hamod's submissions, both at first instance and on the appeal, focused on his position as a self-represented litigant.

1. At the time of the commencement of the hearing on 2 June 2008, Mr Hamod was unrepresented and remained unrepresented for the first week of the trial, that is, from 2-6 June 2008 inclusive. Thereafter the position as to his legal representation was as follows:

On the substantive proceedings
10 June 2008 (morning):	Mr Hamod in person
10 June 2008 (afternoon):	R McKeand SC
11-20 June 2008:	R McKeand SC
On various notices of motion (including the adjournment application)
14, 20, 27 and 28 August 2008:	Mr Hamod in person
Further on the substantive proceedings
8 September 2008:	D Baran of counsel (on a limited basis seeking a stay of proceedings; application refused) Mr Hamod absent for the rest of the day
9 September 2008:	Mr Hamod absent and no legal representation
15-16 September 2008:	Mr Hamod in person
17 September 2008:	Mr Hamod absent and no legal representation

1. At all times, the State and UBS were represented by senior and junior counsel.

The background facts stated by Mr Hamod in his statement of evidence and summarised by Harrison J

1. Harrison J, at [23]-[76] of the principal judgment, summarised, in a " severely truncated " form, Mr Hamod's evidence so as to provide some background to Mr Hamod's claims. His Honour did not make any findings of fact in respect of this evidence.

1. The following section of these reasons is derived from that summary so as to set the background to the issues raised on the appeal. The material is referred to solely for the purpose of understanding Mr Hamod's version of the matters leading to his arrest and prosecution. There is some overlap with the information set out from the pleadings.

Events pre-September 1994

1. Mr Hamod 's involvement with bullion certificates commenced in January 1994 when he was in Jordan. Some months earlier Hamock Constructions had commenced conducting business in the Middle East and had entered into a joint venture agreement for the export of agricultural products from Australia to Iran and for the importation of food from Iran to Australia, Japan and South East Asia. In the ensuing months, the business of Hamock Constructions diversified and grew such that between November 1994 and January 1995, the company and Mr Hamod had joint venture contracts with an Iranian company involving approximately $900 M in trade annually.

1. In early 1994 whilst in Jordan, Mr Hamod was told by a Mr Mohamed Abdul Aziz, the general manager of Haya Trading, that the Indonesian authorities were selling their bullion at a large discount. Mr Hamod was asked if he could assist in locating the representative of the seller, who was said to be in Melbourne, to express Mr Aziz' interest in purchasing 500 tonnes of gold. Mr Hamod agreed and also agreed to act as an agent for Haya Trading for the purchase of bullion.

1. In February 1994, Mr Hamod had discussions with a Mr Ivan Clarke who told him that Mr Michael O'Dowd was the " sellers' signatory " for the sale of several bullion certificates for gold and platinum. Mr Abdul Aziz expressed an interest in the purchase of a bullion certificate for 2980 tonnes of gold and directed Mr Hamod to obtain the offer from the seller and forward it directly to a Mr Antonio Enini who was " the mandate of a trust in Switzerland ".

1. On 8 March 1994, Mr Hamod met Mr O'Dowd at Melbourne's Tullamarine International Airport. Mr O'Dowd said that he was " the seller's signatory " for the sale of " the bullion certificates ". Mr O'Dowd issued a letter of offer for the sale of 2980 tonnes of gold issued by UBS AG. On the following day, Mr O'Dowd issued a second letter for payment of a one per cent commission to Mr Hamod on successful completion of a sale. Mr Hamod sent the offer from Mr O'Dowd by facsimile to Mr Enini in Italy. He was subsequently instructed by Mr O'Dowd to forward the offer to a Mr Mukhaimer, who was described as " the mandate for the Khater Group ", as well as to other potential buyers.

1. On or about 11 March 1994, Mr Enini telephoned Mr Hamod and confirmed that he had received the letter. Mr Hamod described Mr O'Dowd to Mr Enini, who then said words to the following effect:

"You are dealing with the right person. I am the mandate for Alfima Trust from Switzerland. Alfima Trust is a buyer of bullions Gold for the Union Bank of Switzerland. This is a real deal. There are number of bullion certificates for sale. We are interested in the purchase of all of the bullion certificates for Gold. Stay in contact with O'Dowd and see if you can obtain the mandate for the sale of the bullions [sic] certificates...You do not have to know anything about bullion trading, just follow our directions and you could make millions in commissions. This is a real deal. Just follow our directions."

1. Mr Hamod detailed a series of meetings and dealings relating to the bullion certificates in the months that followed. This included dealings with certificates said to relate to as much as 9270 tonnes of platinum and 6200 tonnes of gold. These dealings took Mr Hamod to many countries including Switzerland, Italy and Germany and involved meetings with a number of individuals, two of whom, Dr Hagan and Dr Frey, were said to be signatories to the Platinum Certificate.

1. On 5 June 1994, Mr Hamod met Mr O'Dowd in Germany. Mr Hamod said that he accepted an offer by Mr O'Dowd to deposit with him the original Platinum Certificate. At the same time, Mr O'Dowd gave Mr Hamod a letter authorising Mr Hamod to hold and negotiate the sale of the Platinum Certificate.

1. Mr Hamod made many references to receiving advice to the effect that the Platinum Certificate was valid or genuine. For example, on 6 June 1994, Mr Hamod said he travelled to Geneva where a Dr Khater, expert in the trading of bullion certificates, examined the certificate and informed Mr Hamod that it was " authentic and valid and issued by the Swiss Authority through [UBS AG] ".

1. On or about 8 June 1994, Mr O'Dowd and Dr Khater met with Mr Hamod. Mr O'Dowd, on behalf of Tone Chi Investments and Dr Khater, on behalf of the Khater Group, signed a Buy/Sell agreement for the sale of 3 bullion certificates, including the Platinum Certificate, to the Khater Group. However, the banks refused to fund the Khater Group for the transaction because the records:

"... inside [UBS AG] and inside the issuing Banks show that the owner of the bullion certificates was [Galaxy] and not Tone Chi Investments as alleged by Mr O'Dowd."

1. In June 1994, Mr Hamod engaged a Mr Gary Calhoun to conduct due diligence on the Platinum Certificate. Mr Hamod said that Mr Calhoun advised him that the Platinum Certificate was authentic and valid and issued by the Swiss Authority through UBS AG. Mr Calhoun also advised that the owners of the Platinum Certificate were the Army and security forces of Indonesia.

1. Mr Hamod also referred to dealings with the Treasurer of Morocco.

1. Mr Hamod described how he and Mr O'Dowd were kidnapped, although he said that he and Mr O'Dowd were not aware that they had been kidnapped until they arrived at a hotel in Milan and found that they were the only guests of the hotel apart from Mr Enini " and his people ". The reason for the kidnapping, according to Mr Hamod's statement, was because an entity, Alfima Trust, placed an embargo upon the sale of Mr Hamod's bullion certificates.

1. In early July 1994, Mr Enini " and his people " confiscated Mr Hamod's bag containing the Platinum Certificate and his files on the sale of bullion certificates. They were taken to a meeting in Zurich with a Mr Aleman who photocopied the Platinum Certificate, apparently to conduct some due diligence on it. Mr Hamod and Mr O'Dowd were next introduced to a Mr George Kurian, the son of an Indonesian sultan, who was the chairman of the Manix Group in London and who expressed interest in the Platinum Certificate. Apparently Mr Kurian's family had escaped to Switzerland when President Suharto came to power in Indonesia. Mr Hamod said that Mr Kurian inspected the Platinum Certificate and advised that it appeared genuine and that it would take a couple of days to conduct due diligence on the validity of the Certificate.

1. In his statement, Mr Hamod set out the detail of how, in mid-July 1994, he agreed to assist Mr O'Dowd to escape from the hotel in Milan. Mr Hamod or Mr O'Dowd started an argument with the manager of the hotel in the hope of having the manager call the police. This is exactly what happened. Mr Hamod was locked up and interrogated by senior police officers in Zurich. It took two hours to convince the police officers that he and Mr O'Dowd had been kidnapped from the Manotel Hotel four weeks earlier.

1. According to Mr Hamod, the police officers in Zurich inspected the Platinum Certificate in Mr Hamod's possession and took a copy of it. A senior police officer advised Mr Hamod that the Platinum Certificate and the papers for his mandate were genuine. Mr Hamod, apparently at the request of the Geneva police, was then taken to Geneva for questioning over the disappearance of Mr O'Dowd. The police in Geneva attempted to have Mr Hamod admit that he had murdered Mr O'Dowd and that he had stolen the Platinum Certificate from him. However, Mr O'Dowd reappeared on 21 August 1994 and Mr Hamod was advised that he was free to go. In late August 1994, Mr Hamod was escorted to Zurich airport by a unit from the Swiss Armed Forces to the door of the plane. Mr Hamod arrived back in Australia with the Platinum Certificate on or about 22 August 1994.

Events in Australia

1. According to Mr Hamod, in late September 1994, Galaxy, the supposed true owner of the bullion certificates including the Platinum Certificate, and Mr O'Dowd, defaulted on an agreement with him, made in June of that year, to pay him 2.5 per cent of the face value of the Platinum Certificate as compensation for his " costs, expenses, commissions and damages payable from the sale of the bullions [sic] certificates ". By late 1994, Galaxy was said to have owed Hamock Investments approximately US$770 M and Mr Hamod US$12 B.

1. In September 1994, Mr Hamod said he received unspecified threats and demands from Mr O'Dowd and Mr Clarke if he did not return the Platinum Certificate to them.

1. Mr Hamod's statement next referred to events from August 1994 until 20 January 1995, which his Honour found impossible to summarise in a helpful way. There is no purpose in attempting to do so in these reasons. The supposed background facts referred to so far are sufficient to set the scene leading to Mr Hamod's arrest.

1. The above summary provides a somewhat lengthy background of the matter as alleged by Mr Hamod, including his assertions in the Record of Interview. It will be necessary to examine certain aspects of the evidence in more detail when dealing with the issues raised by specific grounds of appeal. I pause to state that the broad range of issues raised on the appeal and some wide-ranging submissions have made this task a lengthy one, given that there were some volumes of appeal books in the matter.

1. The first three issues identified in section (1) at [4], that is, the adjournment application, the transcript issue, and the bias issue, are matters which, if decided in Mr Hamod's favour, are likely to determine the outcome of the appeal. For that reason, they are dealt with first. Although there is a statement in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 557 that a bias allegation should be dealt with first on an appeal. I have found it of more assistance in understanding the way matters unfolded in the trial to deal with the bias issue after considering the adjournment issue and the transcript issue.

Section (2): The adjournment issue

Ground 22: his Honour erred and miscarried his discretion by failing to grant the appellant an adjournment between the first and second groups of hearing dates in order for the appellant to obtain legal representation

1. On 29 August 2008, the trial judge refused Mr Hamod's application for an adjournment of the proceedings: see Judgment 29 August 2008.

1. The adjournment application was made by notice of motion dated 13 August 2008. The application had been foreshadowed on 11 August 2008, in an email to the trial judge's associate and in a series of similar but not identical letters sent to each of the respondents. I will refer to this correspondence compendiously as the 11 August correspondence.

1. The notice of motion was supported by an affidavit of Mr Hamod dated 13 August 2008. It would seem that none of the 11 August correspondence was annexed to the affidavit.

1. UBS also filed a notice of motion at this time seeking an order that specified dates be allocated for the evidence of three of its witnesses so as to suit the convenience of Mr Hamod. This motion was eventually consented to by Mr Hamod.

20 August 2008

1. The hearing of the notice of motion for adjournment commenced before his Honour on 20 August 2008 but was adjourned part heard to permit Mr Hamod to adduce further evidence to 28 August 2008. His Honour directed Mr Hamod to file and serve any further evidence concerning the issue, which had arisen in Mr Hamod's argument, as to whether or not he had paid the costs of his legal representatives relating to the discovery proceedings. Leave was also granted to the respondents to issue a subpoena to Mr Diab, Mr Hamod's former solicitor, to attend on the adjourned hearing date to give evidence and to produce documents.

1. The issue as to Mr Hamod's legal costs relating to the discovery process related to a costs order made by Simpson J in Mr Hamod's favour on an application in respect of discovery (the discovery costs). Her Honour had ordered that those costs be assessed and paid forthwith. During the hearing on 20 August 2008, Mr Hamod informed Harrison J that he had paid his solicitor the costs referable to those proceedings. He contended, therefore, that he was entitled to have the discovery costs paid directly to him. He said those monies would then provide him with funds to obtain further legal representation. He argued that as the State had not paid the discovery costs, he was deprived of the financial capacity to retain further legal representation.

1. Certain matters that arose during the course of the hearing on 20 August 2008 need to be noted, as they form a background to the further hearing of the notice of motion on 28 August 2008.

1. First, Mr Hamod did not oppose UBS' notice of motion to call the three witnesses on the days which had been specified to suit Mr Hamod's convenience. In that regard, Mr Hamod informed his Honour that he could hire a barrister to cross-examine these three witnesses.

1. Secondly, his Honour reminded Mr Hamod that in late 2007 and early 2008, Mr Hamod had sought expedition of the matter because of the state of his health, Mr Hamod having told his Honour, at that time, that if the matter was not heard soon, he might die before it concluded. Mr Hamod responded that he still might die before the case was finalised. His Honour then commented that the adjournment application seemed to be contradictory to his earlier position, when he had sought expedition. Mr Hamod responded:

"First, let's speak about health. I may have cancer in the lung and even if I have only one day or two days, or one week or two weeks or whatever time I have, I am entitled to feel justice has been done."

1. Mr Hamod then complained that he had only been provided with the respondents' discovered documents in late May and early June 2008. He said those documents would shorten the whole hearing to a couple of days.

1. Next, Mr Hamod asserted that he was entitled to the discovery costs personally because he had already paid Mr Diab and Mr McKeand SC amounts which he first asserted to be $450,000. He made other statements as to how much he had paid. For example, he said he had paid Mr McKeand fully and had paid Mr Diab $100,000 for which Mr Diab had not accounted.

28 August 2008

1. The adjournment application resumed on 28 August 2008. On that occasion, Mr Hamod relied upon a further affidavit dated 26 August 2008 comprising 167 pages. His Honour considered that para (63) of that affidavit was the only paragraph that fell within the terms of his direction given on 20 August 2008. In para (63), Mr Hamod said he had paid to his solicitor, Mr Diab, $155,588.

1. Mr Diab was present in court in response to the subpoena. Mr Hamod was cross-examined by senior counsel for the State and UBS respectively. Mr Diab was examined by senior counsel for the State and cross-examined by Mr Hamod and senior counsel for UBS. The State tendered a Certificate of Determination of the assessment of the discovery costs dated 19 August 2008 issued by the Costs Review Panel, together with the Review Panel's reasons. The Certificate of Determination specified that the discovery costs had been assessed in the sum of $273,000.

1. The parties made oral submissions to his Honour. During the course of Mr Hamod's submissions, his Honour remarked that there had been a shift in the basis upon which he had brought the adjournment application when compared to the assertions made in the 11 August correspondence. On the adjournment application, Mr Hamod contended that he had paid his legal fees relating to the discovery proceedings. He said he required the payment of the discovery costs to him so he could pay for further legal representation. Mr Hamod submitted that:

"... they are the funds we were going to use for the continuation of the hearing."

1. At several points in his submissions, Mr Hamod reiterated his need to have access to the costs monies to which he considered he was directly entitled. Mr Hamod submitted that his solicitor, Mr Diab, had been negligent; that he, Mr Hamod, had previously obtained funds from third parties but, " they don't have money to lend me "; and referred to the difficulty he had in representing himself. He encapsulated the order he sought and the reason for it in these terms:

"I ask for an adjournment to go and get legal representative to advise me if I have a case. If I don't have a case, I don't have a case."

1. Senior counsel for the State addressed his Honour. Amongst other things, senior counsel directed attention to the likelihood that Mr Diab would have a lien over the discovery costs payable by the State, as would Mr Hamod's earlier solicitors. The detail of the submissions is not presently relevant.

1. His Honour, in the course of the State's submissions, adverted to an issue which became central to his reasoning on the adjournment application. He said:

"... there ... seems to be, doesn't there, a fundamental issue, someone will tell me about it I suppose, but in the back of my mind at the moment [the State's] obligation to make a payment pursuant to a costs determination is one thing, the plaintiffs by agreement [sic] in one form or another for the money in their hand or payment of disbursements is another thing. But Mr Hamod, on your case, would have to demonstrate in order to use non payment of the money to get an adjournment [the State has] become either liable to pay the money pursuant to a determination, failed to do it or somehow delayed the assessment process, in either way ascribing fault to them which could found an allegation he was kept out of funds in the relevant way ." (emphasis added)

1. Senior counsel agreed that that was the relevant consideration and submitted that there was no evidence that the State had delayed in any way.

1. Senior counsel for UBS addressed his Honour next, advancing the following submissions:

(1) Mr Hamod's evidence was that he did not want to borrow any more money, not that he could not borrow any more money.

(2) In the 11 August correspondence, Mr Hamod had stated " I expect to have counsel and an amended statement of claim in ten days "; and "I expect to be in a position in ten days to have counsel briefed".

(3) Mr Hamod's statements were inconsistent with his now claimed inability to fund legal representation, as he could not realistically have expected to receive the monies from the discovery costs in 10 days.

(4) There was no evidence of any inability to pay for lawyers when Mr Hamod chose to retain legal representation.

1. Mr Hamod made submissions in reply. In summary, they were as follows:

(1) He had initially tried to represent himself when the hearing commenced in June, but had underestimated his illness and his anxiety attacks, which caused him to get sidetracked from the issues in his case. He decided at that point to obtain legal representation.

(2) At that time, his brothers, who saw his health deteriorating, provided him with financial assistance.

(3) Those funds had been used up and he felt incapable of continuing with a further hearing set down for 8 September 2008. He submitted to the Court that if he did continue with the hearing, " it will only be a mess ", with the consequence that " justice will not prevail ".

(4) The preparations for the resumption of the hearing on 8 September 2008 had run smoothly until 8 August 2008, when he learned that the State had lodged an appeal from the Review Panel's determination of costs.

(5) He had various appointments with the Legal Aid Commission and with certain business people with a view to obtaining finance for the purposes of legal representation.

(6) He had made contact with a solicitor and a Melbourne barrister. However, the barrister was not available in September (the hearing being set down to resume on 8 September).

(7) He had concluded he was not fit to represent himself because of his illness. He stated that the court would not need a medical certificate to determine that was so, as it had been obvious from occasions when he suffered anxiety attacks in court while acting for himself.

(8) He was not going to represent himself because of his ill health. He stated he was going to have legal representation.

(9) He reiterated he was entitled to be paid monies by Mr Diab out of the discovery costs. He disputed that there was any evidence of a lien in favour of Mr Diab.

1. Mr Hamod reiterated his position that there was a lot of evidence that he was going to be disadvantaged and that the court was going to be disadvantaged if he did not have legal representation. He again asserted that altogether he was owed " about $400 or $528,000 in court orders ". He complained that as he could not get itemised bills from his solicitors (by which I understand him to include previous solicitors as well as Mr Diab), he was not able to enforce these court orders. He again asserted that out of the $273,000, being the amount of the assessed discovery costs, he was to be repaid a sum of $105,000 or $120,000 in accordance with a letter from Mr Diab dated 14 December 2007.

1. The letter of 14 December 2007 was an annexure to an affidavit of Mr Hamod dated 7 April 2009 (Annexure AH 6). The affidavit had been filed in proceedings brought by Mr Diab for a declaration that he was entitled to a lien over the discovery costs (the lien proceedings). The trial judge had ruled that the letter was inadmissible in that application, as it was irrelevant to Mr Diab's claim that he had a lien. His Honour made the declaration sought by Mr Diab in the lien proceedings. Leave to appeal from that decision was refused. In refusing leave, this Court also ruled that the letter was not relevant to the lien application: Hamod v Diab [2011] NSWCA 205.

1. Although the letter was not in evidence in the lien proceedings, Mr Hamod referred to it in the course of his submissions to the trial judge on the adjournment application and no objection to that reference was taken by the respondents. The letter stated, relevantly:

"As discussed earlier today, I enclose herewith authority to attend to assessment of the costs orders. Please sign and return same to me.

I confirm that you will get back the money you paid to Mr. McKeand in relation to the work on discovery out of the costs assessed for his invoices on discovery which form part of the costs application. I will get the balance of the costs for my costs and disbursements.

I also confirm that I will not press you for payment of the balance of the discovery invoice and I will not press you for payment of my second bill until you receive a determination from the Supreme Court in [the present case]."

Trial judge's reasons of 29 August 2008

1. On 29 August 2008, the trial judge refused Mr Hamod's application for adjournment. The matters which he took into account and his reasons for so doing may be summarised as follows.

1. His Honour first referred to the 11 August correspondence, in which the application for an adjournment was foreshadowed. Mr Hamod's opening paragraph in that correspondence as recorded in his Honour's judgment, was:

"I refer to the above matter and I confirm that due to late discovery of documents from both defendants and due to late filing of the statements of witnesses from the defendants and due to non discovery by both defendants of documents that existed and not included in the list of discovery by both defendants, I shall seek to vacate the hearing that is scheduled to commence on 8 September 2008."

1. The correspondence continued that Mr Hamod proposed to instigate or engage in a number of further processes and/or seek further orders in the matter. These included amending the sixth amended statement of claim and adding additional parties; seeking further discovery, both from the added parties and from the State and UBS; seeking to enforce existing discovery orders; interrogating UBS about the transfer of business and assets to another corporation whilst the proceedings were on foot; seeking an order for costs resulting from a breach of undertaking given by the State and UBS before Conti J in about April 2002; seeking the enforcement of the court order for the payment of the discovery costs that had been assessed but not paid by the State; and enforcing the costs order made by Conti J in the Federal Court of Australia against UBS in favour of Mr Hamod in respect of the period 6 December 2002 to 30 May 2003. Other orders were sought but need not be set out here. The correspondence was, as I have said, contained in his Honour's judgment of 29 August 2008 at pp 1 and 2.

1. His Honour next referred to the contents of Mr Hamod's affidavit of 13 August 2008 filed in support of the adjournment application.

1. His Honour noted that Mr Hamod was 58 years of age and living on a disability pension. His Honour next observed that the affidavit set out a history of the assessment of the discovery costs. As the manner in which the costs assessment proceeded was relevant to his Honour's determination, some further detail on that is necessary.

1. Mr Hamod had deposed that in about December 2007, his former solicitors, Simon Diab & Associates, had filed an application for assessment of the discovery costs; that the State had filed objections to the claimed costs on 16 January 2008; that the Costs Assessor's Certificate was issued on 6 June 2008, the costs being determined in the sum of $273,660; and on 15 July 2008, the State filed an application for review of the costs determination. His Honour noted that subsequent to the date of the affidavit, the costs review had been determined and the Costs Assessor's determination in the sum of $273,660 had been confirmed. His Honour stated that he would proceed upon the basis that that sum was thereby payable by the first defendant within 28 days of 15 July 2008.

1. Next, his Honour referred to Mr Hamod's evidence of attempts to secure funding to finance the cost of legal representation, noting that such attempts had been unsuccessful. His Honour noted an absence of detail about such attempts, save for two exceptions. The first was the assistance provided by Mr Hamod's two brothers. The second was Mr Hamod's evidence that he had approached a solicitor, Mr Chris Ford, who might be prepared to appear for him on terms or conditions not specified and that a Mr Gary Moffatt, barrister, might be prepared to appear, again on terms and conditions which were not clear, but that it was doubtful that Mr Moffatt would be able to appear should the matter resume on 8 September 2008.

1. His Honour observed that there had been an evolution of the basis upon which Mr Hamod sought the adjournment from that indicated in the 11 August correspondence, in which there was only a faint indication that the discovery costs had anything to do with the application.

1. His Honour then encapsulated Mr Hamod's application as being based on two factors. First, his financial position was such that he was not in a position to retain legal representation, but his position would have been alleviated had the State paid the discovery costs. His Honour noted that Mr Hamod's submissions suggested that it may not, in any event, be possible to have such legal representation in place or in the state of necessary preparedness for when the matter was due to resume on 8 September. Secondly, his medical condition was such that he could not attend to the proper presentation of his case.

1. His Honour summarised the principal opposition to the application as being the absence of any real detriment to Mr Hamod by the State's failure to pay the discovery costs because such costs would only indemnify him to the extent that the legal costs had already been paid. His Honour noted that this appeared to be a sum of $60,500, being the fees of Mr McKeand SC, although his Honour also noted that Mr Hamod contended that he had paid something in excess of $100,000. His Honour noted that the respondents also relied upon the fact that other solicitors were owed costs, making it unlikely that there would be sufficient funds available to Mr Hamod to pay for legal representation out of the discovery costs.

1. His Honour also noted that whatever the correct legal analysis of Mr Hamod's entitlement to the discovery costs, the State and UBS had argued that he had not made out a case that he was, or ever had been, without funds to retain legal advisors or to engage lawyers on terms not requiring immediate payment of their fees. In this regard, his Honour noted that Mr Hamod had been legally represented from time to time and the evidence did not suggest that he had ever been financially unable to retain lawyers whenever that was required.

1. His Honour referred to UBS' submission that on Mr Hamod's own evidence, the position was not that he could not borrow further monies for the purposes of obtaining legal representation, but that he did not want to do so. An examination of Mr Hamod's bank accounts showed an influx of funds from time to time, apparently on loan from Mr Hamod's brothers for the purposes of funding the proceedings. His Honour also referred to Mr Hamod's proposals for the future conduct of the matter, namely, to borrow funds to retain lawyers if some alternative funding basis could not be arranged (at p 7).

1. His Honour next considered the 11 August correspondence, which (except perhaps marginally) had not referred to any question of impecuniosity and the respondents' argument that Mr Hamod's evidence, as to any attempt to obtain legal representation, had been unsatisfactory.

1. Ms Koch's affidavit set out matters in support of the State's application for a specified gross sum costs order, including an historical review of the matter, details of the costs and disbursements incurred during specific periods since August 2000 and details of the solicitors and counsel involved and the amounts of the fees billed or charged. She gave details of the bills of costs rendered to the State with a documentary trail cross-referenced to the exhibits to her affidavit. The affidavit contained 66 paragraphs over 14 pages. Mr Hamod and Hamock Investments did not challenge the State's summary, nor did they cross-examine Ms Koch (at judgment [13]).

1. Ms Koch stated that the total amount of the State's costs billed to it was $1,594,575, less $87,720, which were the costs incurred by the State on applications upon which Mr Hamod and Hamock Investments ultimately succeeded and $31,090 being the costs incurred by the State in the costs appeal proceedings commenced in the District Court. The total of the resulting costs was thus said to be $1,475,765 (at judgment [14]). The State sought an order for the payment of 80 per cent of that sum. The reduction of 20 per cent was attributed to the " relatively modest fees " charged by the State's solicitors and counsel. The State sought a costs order under the Civil Procedure Act , s 98(4)(c), " in order to avoid the significant expense and delay associated with costs assessment ". It also submitted that, given Mr Hamod's personal circumstances, it would not be unreasonable to assume that such expense (estimated to be in the order of $150,000) could never be recovered (at judgment [15]).

1. The affidavit of Ms Caffrey, Acting Manager, Costs Assessment in the Supreme Court, included evidence that the State would be likely to recover 80 per cent of its incurred costs on an assessment. Ms Caffrey offered her expert opinion that the costs of undertaking the assessment process in a matter of this size would be in the order of $150,000 (at judgment [17]). The State submitted that the making of a specified gross sum costs order in all of the circumstances would be in accordance with the overriding purpose expressed in the Civil Procedure Act , s 56 (at judgment [18]).

UBS

1. UBS relied upon two affidavits of Patrick Holmes sworn respectively on 4 May 2009 and 5 May 2009 and an affidavit of Paul Nicols sworn on 18 May 2009. There were four exhibits to Mr Holmes' first affidavit containing detailed information. The trial judge, at [20] and [21], described all three affidavits as very " detailed ". There was no challenge to either of Mr Holmes' affidavits or to the tender of the four detailed exhibits to it. Mr Nicols' affidavit included a detailed analysis of the costs and a comparison between the costs of an assessment, were it to occur, and the costs that might be avoided, if the application before Harrison J were to succeed. He stated that the assessment in the normal course of events would be likely to take at least a year at a cost of several hundred thousand dollars (at judgment [21]).

1. UBS also submitted that there was little likelihood that any costs incurred in the assessment process would be recovered from Mr Hamod, as he was a man of limited means and had no substantial assets. It also submitted that the proposition that assessed costs would be any more likely to be paid by Mr Hamod and Hamock Investments was doubtful. In that sense, the argument about whether or not to assess the costs or make a specified gross sum costs order would appear to have little significance beyond the theoretical, except to the extent of the possible need to establish an entitlement to costs against which to set off any smaller costs entitlement that the appellants may have had (at judgment [22]).

1. Mr Holmes calculated that UBS' claimable costs totalled $2,690,620. This calculation did not include costs or disbursements incurred prior to 31 May 2003 (at judgment [23]).

1. UBS sought an order that Mr Hamod pay 60 per cent of its costs, or approximately $1,614,000. This amount was based upon Mr Nicols' evidence that, in cases where a claimant for costs was represented by a large law firm, the most common result of an assessment is that the costs as assessed fall somewhere between 60 per cent and 75 per cent of the actual costs. Mr Hamod and Hamock Investments did not challenge Mr Nichols' analysis (at judgment [24]).

1. UBS made additional submissions to the general effect that, by applying for a specified gross sum costs order under s 98(4)(c) and by offering to accept 60 per cent of its actual costs, it was forgoing arguments about its possible entitlements to interest and indemnity costs. It also submitted that Mr Hamod would be better off if a specified gross sum costs order was made than if the matter proceeded to an assessment in the normal way (at (judgment [26]).

Trial judge's reasons

1. Harrison J, at [3], referred to the relevant principles informing the exercise of the discretion in s 98 set out by Einstein J in Idoport Pty Limited v National Australia Bank Limited, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23 at [9]. Einstein J stated at [9]:

"For present purposes it seems convenient to commence with a recitation of the principles which inform the exercise of the discretion:

i. the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum NL v Johnson (1995) 57 FCR 119, Von Doussa J page 265: [following Purchase J in Leary v Leary [1987] 1 All ER 261 who described the purpose of the rule allowing the fixing of a gross sum as ' the avoidance of expense, delay and aggravation involved in protracted litigation arising out of taxation ' (All ER page 265)];

ii. the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable: Beach Petroleum at [16];

iii. the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available: Harrison v Schipp (2002) 54 NSWLR 738, per Giles JA at para [22]; [following ( Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA) and adopted in Sony Entertainment v Smith (2005) 215 ALR 788; [2005] FCA 228; BC200500963 at para [199];

iv. a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place: Harrison v Schipp at para [22];

v. the gross sum 'can only be fixed broadly having regard to the information before the Court': Beach Petroleum at 124;

[In Hadid v Lenfest Communications Inc [2000] FCA 628 at [35] it was said that the evidence enabled fixing a gross sum 'only if I apply a much broader brush than would be applied on taxation, but that ... is what the rule contemplates'.]

vi. nevertheless the power to award a gross sum must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter: Leary v Leary [1987] 1 WLR 72 at 76, and Beach Petroleum NL v Johnson (No.2) (1995) 57 FCR 119 at 120;

vii. In terms of the necessity for the approach taken to be logical, fair and reasonable, Von Doussa J in Beach Petroleum NL & Anor v Johnson & Ors (No 2) (1995) 57 FCR 119, put the matter as follows, at paras [16]:

'On the one hand the Court must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary 'fail safe' discount on the cost estimates submitted to the Court: Leary v Leary at 265'"

1. The appellants did not contest the accuracy of these statements of the relevant principles (at judgment [5]). These principles, summarised by Einstein J, have been referred to with approval in subsequent Supreme Court cases, and were recently cited by this Court in Savage v Australian Unity Funds Management Ltd [ 2011] NSWCA 270 per Young JA at [32]. They are further discussed below.

1. In his reasons, Harrison J highlighted the fact that Mr Hamod had no money and no assets within his control and stated, at [27]:

"... In that sense the award of costs in favour of [the State and UBS] appears to be no more than a completely theoretical exercise. The same is not true of the costs that might be incurred if the ordinary assessment process were to proceed for the obvious reason that those costs have not yet been incurred and could still actually be saved."

1. Harrison J proceeded to explain that the determinative issue was one of " fairness ":

"[30] As the plaintiffs' opposition to [the State and UBS'] applications reveals, however, the determinative issue is no more and no less than one of fairness . The plaintiffs should be ordered to pay [the State and UBS'] costs of the proceedings and the plaintiffs do not at this stage contest the inevitability of that outcome. [The State and UBS] are entitled to recover costs from the unsuccessful [appellants] at rates that are either produced by the operation of the costs assessment procedure if it takes place, as the plaintiffs contend, or in an amount that this Court can confidently be satisfied is no greater than the amount that such a process would produce if a specified gross sum costs order is made instead, as [the State and UBS] contend. As the cases emphasise, the touchstone is one of confidence that the approach taken to estimate costs is logical, fair and reasonable . The fairness aspect of the inquiry includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available. In the present case, all of the material derives from [the State and UBS] themselves and none of that material has been challenged or cast in doubt by the plaintiffs except in the most cursory of ways. I have already observed that Ms Koch, Ms Caffrey, Mr Holmes and Mr Nicols have not been challenged upon anything that they have said or done in preparing the evidence upon which [the State and UBS] rely and that the attention to detail exhibited by all of them is most impressive. I have taken this into account in forming a view about whether or not I can confidently rely upon the material that they have presented." (emphasis added)

1. Harrison J, at [33]-[35], continued:

"[33] ... I am somewhat troubled by the tension between the essential requirement for a judicial decision on the one hand and the need for reasons of efficiency and speed to make some form of 'next best guess' about what the outcome of an assessment might be on the other hand ...

[34] However, in my opinion, the material with which I have been provided permits the making of a decision at a level far removed from mere suspicion. The evidence in favour of making specified gross sum costs orders is strong, if not overwhelming, and there is no competing evidence beyond assertion to the contrary. It would be churlish to treat the careful and detailed evidence and opinions of the [the State and UBS'] deponents as unreliable or unhelpful or possibly infected with inaccuracies when the opposite is so clearly the case. There is also the real and tangible, as opposed to the hypothetical or theoretical, prospect that something in the order of a total of $350,000 may be saved by the avoidance of a costs assessment process that would in practical terms (having regard to the plaintiffs' impecuniosity) produce no different result for them, even if it were a less favourable result, but which would by way of important contrast leave [the State and UBS] actually out of pocket for that amount. The overriding purpose again comes to mind.

[35] I am satisfied in all of the circumstances that on balance, the contest between depriving the plaintiffs of an opportunity to subject [the State and UBS] to the rigours of the costs assessment process on the one hand, and the avoidance of undue and unnecessary as well as unrecoverable costs on the other hand, favours the making of specified gross sum costs orders in favour of each of the defendants in the terms that they seek. I am satisfied that it is both just and fair to [the appellants] to do so. That is so, among other reasons, because [tthe State and UBS'] costs appear to have been accurately calculated and do not appear to have been inflated or unreasonably incurred, so that no injustice is caused to the plaintiffs. The discounts of one fifth and two fifths respectively, which [the State and UBS] contend should apply to their actual costs, also seem to me to be appropriate and based on reliable evidence, so that no injustice is caused to them either." (emphasis added)

Submissions on appeal

Mr Hamod

1. Mr Hamod submitted that his Honour applied the wrong principle in making a gross sum order under the Civil Procedure Act , s 98(4). He contended that his Honour should have made the standard order that costs be paid by the appellant as agreed or assessed, there being inadequate or insufficient grounds to have departed from the usual order. Mr Hamod submitted that his Honour's discretion thereby miscarried.

1. In his written submissions on the appeal, Mr Hamod said that the trial judge was critical of his failure to adduce the evidence of a costs assessor's opinion or commentary regarding any of the extensive affidavit materials read by the State and UBS explaining how they came to their assessment of costs. (In fact his Honour was not critical, but did advert to the fact that there was no competing evidence.) Mr Hamod submitted that having regard to his impecuniosity, he would not have been in a position to afford such an opinion; and that obtaining such an opinion from a costs assessor would have taken months, given all the available material.

1. Mr Hamod further submitted that the awarding of a lump sum costs order deprived him of a " fundamental right of assessment " to consider the issue of the quantum of costs. He submitted that such an order divested him of his right to consider whether or not " the work " was performed in circumstances that were " just and reasonable to have incurred the costs so charged ". He was not given the opportunity to have the costs assessed at an amount that would permit him to minimise his exposure to a costs order exceeding $3 M in total.

1. In addition, Mr Hamod submitted that, although the trial judge gave him the benefit of a discount, it was unclear whether a greater discount would be available to him had he had the benefit of an assessment process. Mr Hamod stated that:

"... it was arbitrary and a miscarriage of discretion to have invoked the Section 98 power when the appellant only recently obtained legal representation and a thorough and comprehensive assessment of a file going back to at least 2000 ... could not possibly have been assessed by a competent legal practitioner in the time allotted between the final disposition of the proceedings and the costs argument."

1. According to Mr Hamod, the trial judge's discretion miscarried, the lump sum costs procedure was erroneously invoked and an assessment should have been permitted in the circumstances.

The State

1. In its written submissions, the State adopted the submissions of UBS on the issue of costs, with the exception of the percentage allocated to the State. The State submitted that the hourly rate of its solicitors and counsel was below commercial rates and accordingly it was entitled to recover a greater percentage of its costs.

UBS

1. UBS submitted that the trial judge's discretion under s 98 had not miscarried and that it was appropriate for his Honour to make a specified gross sum costs order given that:

"(1) The respondents' costs estimates were detailed and unchallenged.

(2) There was no contrary evidence or contrary submissions of any specificity.

(3) In the case of UBS, the estimate was conservative.

(4) There was a real and tangible prospect that something in the order of $350,000 could be saved by the avoidance of a costs assessment process.

(5) [Mr Hamod] was a man of limited means and no substantial assets."

1. UBS further submitted that the fact that the gross sum costs order deprived Mr Hamod of an opportunity to have the respondents' costs assessed did not mean that the discretion miscarried. UBS relied on three main arguments to support this submission. First, the deprivation of the opportunity to assess costs must have been contemplated by the legislature in enacting s 98(4)(c). Secondly, the trial judge explicitly took account of the deprivation of this opportunity in his balancing process. Reference was made to [35] of Harrison J's judgment. Thirdly, there was no evidence that on an assessment there would be any significant chance that UBS' costs would be less than the specified gross sum ordered.

1. UBS also argued that it did not follow from Mr Hamod's " general impecuniosity " that he had no opportunity to proffer specific evidence about costs or to challenge the respondents' evidence. To support this submission, UBS relied on the following: Mr Hamod apparently could afford a lawyer to represent him on the application as to costs; he had legal representation previously; there was no evidence that when Mr Hamod was without legal representation from time to time it was because of impecuniosity; there was no application on behalf of Mr Hamod for further time to adduce evidence or to make submissions on the costs question, beyond that given by the trial judge.

Mr Hamod's response to the State and UBS

1. In response to the submissions of the State and UBS on the costs issue, Mr Hamod submitted that, inconsistently with Idoport Pty Ltd v National Australia Bank Limited per Einstein J, the " fairness parameter " was not satisfied. Mr Hamod stated that the unfairness in his case arose out of the fifth principle recorded by Einstein J, at [9], namely, that the gross sum " can only be fixed having regard to the information before the court ".

1. Mr Hamod submitted that, due to his impecuniosity, it was not possible for him to put information before the court similar to the complex costs evidence that the respondents tendered in Idoport. Mr Hamod stated that he did not have the appropriate time or resources to obtain his own opinions regarding the likely assessments of costs in order to be in a position to make informed submissions as to the likely assessment of costs in terms of a potential outcome.

1. According to Mr Hamod, due to his impecuniosity, he was effectively shut out of the assessment process and the trial judge speculated as to the utility of undertaking that process at some time in the future. Mr Hamod submitted that this constituted an error of principle: " whether or not the appellant is in impoverished circumstances or not, he still has a right to have costs assessed conferred by statute ".

1. Mr Hamod also contended that there was a " clear unfairness in the entire exercise " such that he was unable properly to put submissions to the court based on the quantum of likely costs to be assessed by a costs assessor. Rather, the only submission he effectively was able to make related to the discretion the trial judge should exercise in the circumstances. As Mr Hamod could not marshal expert evidence regarding the likely costs to be recovered, he was likewise unable to put to the court submissions regarding appropriate discounts.

1. Mr Hamod drew a distinction between this case and Idoport. In Idoport, the evidence accepted by Einstein J originated from two independent legal costs assessors. This was not the position regarding costs in the application before the trial judge, as part of the evidence on costs was provided by solicitors employed by the State and UBS.

1. Mr Hamod reiterated that the costs ordered by the trial judge were " not anywhere near the quantum of costs that were relied upon " by the State and UBS.

Legal principles

1. I have already set out the relevant provisions of s 98. The discretion thereby conferred upon the court is not confined and may be exercised whenever the circumstances warrant its exercise, having regard to the scope and purpose of the provision: Harrison & Anor v Schipp [2002] NSWCA 213; 54 NSWLR 738 per Giles JA at [21]-[22]. In Harrison v Schipp, Giles JA considered that the discretion in s 98(4) may be exercised where the assessment of costs would be protracted and expensive and, in particular, if it appeared that a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment. However, his Honour stated, at [22]:

"The power should only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available."

1. See also Wentworth v Wentworth (Court of Appeal, 21 February 1996, unreported). The courts have typically applied a discount in assessing costs on a gross sum basis: Ritchie's Uniform Civil Procedure NSW , LexisNexis, Sydney, 2005 to date, " Civil Procedure Act ", at [s 98.65]; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629; Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788; Idoport Pty Ltd v National Australia Bank Ltd ; Lorenzato v Lorenzato & Anor (No 2) [ 2011] NSWSC 790 per Black J.

1. In Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; 135 ALR 160, von Doussa J noted that the specified gross sum costs procedure was particularly useful in complex cases, that the power must be exercised judicially and only after giving the parties an adequate opportunity to make submissions, and that before exercising the power the court should be confident that the approach taken to estimate costs is fair, logical and reasonable.

1. The terms of s 98(4), together with the more general considerations reflected in the Civil Procedure Act , ss 56(1), 57(1)(d) and 60, suggest the factors that merit particular consideration include: the relative responsibility of the parties for the costs incurred (for example, Harrison v Schipp ); the degree of any disproportion between the issue litigated and the costs claimed; the complexity of proceedings in relation to their cost; and the capacity of the unsuccessful party to satisfy any costs liability: Ritchie's Uniform Civil Procedure NSW at [s 98.45].

1. The exercise of the power conferred by s 98(4) is particularly appropriate where the costs have been incurred in lengthy or complex cases and it is desirable to avoid the expense, delay and aggravation likely to be involved in contested costs assessment. This may arise either from the likely length and complexity of the assessment process: Beach Petroleum NL v Johnson (No 2) at 120; Charlick Trading Pty Ltd v Australian National Railways Commission ; Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006; or from the likelihood that the additional costs of formal assessment would disadvantage the successful party because of the likely inability of the unsuccessful party to discharge the costs liability in any event: Harrison v Schipp ; Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788 at [90], [194]-[195]; Hadid v Lenfest Communications Inc [2000] FCA 628.

1. The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Leary v Leary [1987] 1 WLR 72; [1987] 1 All ER 261; Sony Entertainment (Aust) Ltd v Smith; Microsoft v Jiang (2003) 58 IPR 445; [2003] FCA 101; Ritchie's Uniform Civil Procedure NSW at [s 98.60]).

1. The assessment of any lump sum to be awarded must represent a review of the successful party's costs by reference to the pleadings and complexity of the issues raised on the pleadings; the interlocutory processes; the preparation for final hearing and the final hearing: Smoothpool v Pickering [2001] SASC 131. In the exercise of its discretion the court is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment: Harrison v Schipp at 743; Hadid v Lenfest Communications Inc at [35]; Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1 at 5; [1999] FCA 673.

1. The costs ordered should be based on an informed assessment of the actual costs having regard to the information before the court (for example, by relying on costs estimates or bills): Beach Petroleum NL v Johnson (No 2) ; Leary v Leary ; Harrison v Schipp at 743 ; Sparnon v Apand Pty Ltd (FCA, 4 March 1998, unreported) . The approach taken to estimate the costs to be ordered must be logical, fair and reasonable: Beach Petroleum NL v Johnson at 164-165 ; Hadid v Lenfest Communications Inc at [27]; Harrison v Schipp at 743 . This may involve an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in any formal costs assessment: Leary v Leary at WLR 76 per Purchas LJ; Beach Petroleum NL v Johnson (No 2) at 123; Auspine Ltd v Australian Newsprint Mills Ltd at 164-165.

Conclusion on the costs issue

1. Mr Hamod's principal complaint, that he was denied his fundamental right to have the costs of the respondents assessed in a formal costs assessment process, is, with respect to the author of the submissions, misconceived. There is no such fundamental right. The award of costs in proceedings before the Court is governed by the Civil Procedure Act , s 98 and the UCPR, in particular, Pt 42, Div 1. Section 98(4) gives express power to the court to make an order for specified gross sum costs. Having regard to the express power conferred by s 98(4), Mr Hamod's principal submission must be dismissed outright.

1. The real question for consideration is whether, in making the gross costs orders, his Honour's discretion miscarried. Mr Hamod contended that the discretion miscarried because he was divested of his right to consider whether the costs incurred were just and reasonable, as he would have been able to do if the costs were formally assessed through the costs assessment process. He said that the costs assessment process would provide him with the opportunity to limit his exposure to a costs order exceeding $3 M. Again, it must be emphasised that the bald assertion that he had a right to an assessment is incorrect in the face of the court's statutory power to make such an order.

1. The fact that Mr Hamod would not be able to formally assess the costs was, of course, a consideration to which his Honour was required to have regard. However, there were other considerations in this case. In particular, Mr Hamod appeared before the court as a person of limited means. The likelihood of the State and UBS recovering their costs and, in particular, the costs incurred in the assessment process, must be negligible. That was a factor that his Honour considered to be relevant to the making of the order.

1. The State and UBS had adduced detailed evidence of the costs each had incurred. That evidence was contestable, although given the principles that govern the making of an order under s 98(4), the costs would not be challenged to the same extent as may occur on a formal assessment. However, Mr Hamod chose not to contest the evidence. He may not have had the resources to do so, but Mr Hamod's lack of resources was one of the factors that led his Honour to make the order. Mr Hamod was protected by the principles which required his Honour to be satisfied that the costs claimed were fair and reasonable.

1. Mr Hamod also challenged the discount his Honour applied to the assessments of the costs that the parties claimed. However, Mr Hamod did not challenge these matters in cross-examination or by the calling of evidence. He could have cross-examined, at the least. In any event, the authorities state that the court's determination of any such discount may involve an impressionistic process. In this case, there was evidence from experienced legal practitioners and a costs assessor of the likely discount as compared to the actual costs incurred. There was no error in his Honour acting on this evidence.

1. In my opinion, Mr Hamod's complaints fail to expose any error in his Honour's exercise of his discretion. As I have said, there was detailed evidence before his Honour as to the costs incurred, to the usual " discount " from total costs that usually applied in commercial disputes; and the lower costs the State usually incurs in matters. His Honour had regard to all of those matters, as well as to the relatively significant costs that would have been involved if the matter was to proceed to an assessment. On the evidence, those matters were all relevant considerations and his Honour's determination could not be badged as 'arbitrary', as Mr Hamod contended.

1. In my opinion, this ground of appeal should be dismissed.

Conclusion on the appeal

1. In my opinion, the appeal should be dismissed. Accordingly, I propose the following orders:

1. Appeal dismissed;

2. The appellant to pay the respondents' costs of the appeal.

1. GILES JA : The reasons of Beazley JA comprehensively explain why the appeal should not succeed. I agree with the orders proposed by her Honour.

1. WHEALY JA : I agree with the reasons of Beazley JA and with the orders proposed by her Honour.

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Decision last updated: 06 December 2011