Hamod v State of New South Wales (No 5)

[2007] NSWSC 1394

CITATION:	Hamod v State of New South Wales (No 5) [2007] NSWSC 1394
HEARING DATE(S):	9 August 2007
JUDGMENT DATE :	9 August 2007
JUDGMENT OF:	Harrison J
DECISION:	Extension of time granted to the first defendant for compliance with orders for discovery.
CATCHWORDS:	CIVIL PROCEDURE – discovery – application for extension of time to comply with order for discovery
LEGISLATION CITED:	Uniform Civil Procedure Rules
PARTIES:	Anthony Hamod (First Plaintiff) Hamock Investments Pty Limited (Second Plaintiff) State of New South Wales (First Defendant) UBS Australia Limited (Second Defendant)
FILE NUMBER(S):	SC 20147 of 2003
COUNSEL:	D E Baran (Plaintiffs) M T Hutchings (First Defendant)
SOLICITORS:	Simon Diab & Associates (Plaintiffs) I V Knight, Crown Solicitor (First Defendant) Allens Arthur Robinson (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

9 August 2007

20147 of 2003 Anthony Hamod v State of New South Wales & Anor

JUDGMENT

1 HARRISON J: This matter came before me today on the application of the first defendant to extend the time for compliance by it with an order that it provide discovery. This matter was the subject of comment by me in paragraph 12 of the judgment I delivered on 19 July 2007.

2 The first defendant's position can be summarised as follows. First, although it is not in a position to provide a verified list of documents today, it will be in a position to do so by no later than 4.00pm on Thursday 23 August 2007. Secondly, it will be in a position to provide a draft list of documents to the plaintiff by no later than 4.00pm today.

3 The plaintiffs' position is as follows. First, the plaintiffs filed in court a notice of motion seeking an order that the defence of the first defendant be struck out for want of due dispatch pursuant to Rule 12.7(2) of the Uniform Civil Procedure Rules. Although this application is as yet unsupported by evidence, it is directed to the first defendant's failure to comply with the outstanding order for discovery. Secondly, in response to the first defendant's application, the plaintiffs indicated that they required the first defendant's list of documents by no later than 13 August 2007 and were, for their part, unable to see any good reason why the first defendant should not be required to meet this deadline. Thirdly, the plaintiffs indicated that they were proposing to seek leave to appeal to the Court of Appeal against the order made by me on 19 July 2007 vacating the hearing of this matter which had been listed to commence on 29 October 2007.

4 Mr Baran of counsel, who appeared for the plaintiffs, quite properly conceded that the plaintiffs' proposed application to the Court of Appeal to reinstate the hearing date would not be adversely affected if the plaintiffs did not receive a verified list of documents by 23 August 2007. In other words, even though the plaintiffs' preferred position would be to have that list by 13 August 2007, the plaintiffs would continue to agitate for the resurrection of the original hearing date even if, by the time the matter came before the Court of Appeal for determination, they had not received that verified list until the later date.

5 As I have said before, and on more than one occasion, this matter has a long history. Although the plaintiffs' case would appear, at one level, to be within a fairly narrow compass, it would appear to have expanded considerably over time. For example, I was informed on the last occasion that exhibits to Mr Hamod's principal affidavit will exceed 15,000 pages and 100 lever arch folders. Correspondingly, the width of discovery which the first defendant has been required to embark upon is also significant.

6 It is not possible for me to predict the outcome of the plaintiffs' foreshadowed application to reinstate the hearing date. If, however, as the plaintiffs by their counsel have indicated, they anticipate that they will be able to prepare for a hearing on 29 October 2007 if the Court of Appeal is able, and chooses, to reinstate that date, I am inclined to accede to the first defendant's application for an extension of time to comply to 23 August 2007. I am fortified in this view given the first defendant's indication that it can provide a draft list of documents later today.

7 This decision does not of course foreclose upon the fate of the plaintiffs' application pursuant to Rule 12.7(2). In those circumstances it remains open to the plaintiffs to list that motion for hearing before me at some date convenient to all of the parties. Having regard to the fact that the matter is listed before me on 31 August 2007 for the hearing of the second defendant's application for an order to inspect the "Platinum Certificate", it may be appropriate to deal with this matter on that day as well. In this last respect I note that order 2 made by me on 19 July 2007 was vacated today by consent of the plaintiffs and the second defendant.

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