Hamod v State of New South Wales (No 7)

[2007] NSWSC 1395

CITATION:	Hamod v State of New South Wales (No 7) [2007] NSWSC 1395
HEARING DATE(S):	8 October 2007
JUDGMENT DATE :	8 October 2007
JUDGMENT OF:	Harrison J
DECISION:	See paragraph [10] for details of orders made.
CATCHWORDS:	CIVIL PROCEDURE – interlocutory application for access to documents for forensic examination – costs of security arrangements
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:	R T McKeand SC and D E Baran (Plaintiffs) M T Hutchings (First Defendant) M R Speakman SC (Second 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

8 October 2007

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

JUDGMENT

1 HARRISON J: On 5 October 2007 I published my reasons for judgment on the question of access by the second defendant to the Platinum Certificate for the purposes of expert forensic examination. I invited the parties to bring in draft minutes of an order giving effect to what I proposed.

2 The matter came before me this morning on a number of issues including the proposed form of orders for that purpose. Subject to two matters, the parties are effectively in agreement as to what should occur.

3 The first of those matters is the question of the cost of security arrangements that Mr Hamod considers necessary to put in place for the transport of the Platinum Certificate to and from Mr Westwood's premises at Manly. The plaintiff contends that the second defendant should bare such costs. The second defendant contends that the plaintiff should pay for these costs himself.

4 At present I do not have evidence before me of what the cost might be to secure the safe passage of the Platinum Certificate on its proposed journeys to and from Manly. As my judgment has suggested, the document is wholly uninsurable. Furthermore, no specific security proposal has been formulated.

5 The evidence reveals that Mr Hamod has from time to time travelled to various Australian and international locations with the Platinum Certificate, apparently quite safely. Despite having been involved in some quite extraordinary adventures since coming into possession of the certificate, including the fact of possession of it having been taken from him by third parties for some time, the document has always been returned to Mr Hamod and remains in his possession now.

6 The success which Mr Hamod has so far had in conveying the certificate to and from various destinations leads me to conclude that it is highly likely that he will be able to do so again for the limited purposes of the proposed inspection. Significantly, apart from general concerns for the document's safety, the evidence does not reveal a specific threat of any sort which I could meaningfully consider in forming my views on this issue.

7 In my opinion Mr Hamod should make, and should bear the cost of, his own security arrangements.

8 Secondly, the costs of the application are sought by each of the parties to it. In addition, the second defendant seeks an order that the plaintiff pay its costs of the notice of motion filed on 12 July 2007 and that those costs be assessable and payable forthwith.

9 The second defendant was successful in its application for an order that the Platinum Certificate be examined by its forensic document examiner. I am not satisfied that there are any circumstances which would displace an order that the plaintiff pay the second defendant's costs of the motion in those circumstances. However, the ultimate allocation of costs as between and among the parties in these proceedings is potentially complicated. In my opinion it is appropriate that assessment and recovery of such costs should await the making of final costs orders when the proceedings are concluded.

10 Accordingly, the following orders should be made:-

1. Order that, subject to order 5, the first plaintiff deliver to Paul Westwood on 22 October 2007, and on each of the three succeeding days, at the Manly premises of Forensic Document Services Pty Ltd the Platinum Certificate which is the subject of these proceedings.

2. Order that, subject to order 5, Paul Westwood be permitted to conduct non-invasive examinations of the certificate at those premises between 9.00am and 6.00pm on each day, or between such earlier and later times as the first plaintiff and the second defendant may agree.

3. Order that the first plaintiff shall be entitled to remain with, or in close proximity to, the Platinum Certificate at all times while it is at the premises pursuant to orders 1 and 2, including being in any room at the premises in which examinations are taking place.

4. Order that, subject to order 5, Paul Westwood return the Platinum Certificate to the first plaintiff by no later than 6.00pm on each day, or such later or earlier time as may have been agreed.

5. Order that, if earlier than 6.00pm on the last examination day Paul Westwood informs the first plaintiff that he has concluded his examinations pursuant to order 2, Mr Westwood should give the certificate to the first plaintiff at that time and the first plaintiff will not thereafter be required to give it to Mr Westwood again on any remaining days.

6. Note that the first plaintiff should make at his own cost such arrangements as he is advised to make or considers necessary for the security of the Certificate while it is being transported to and from the premises and that the second defendant will not be responsible for maintaining the security of the Certificate at those times.

7. Grant liberty to the parties to apply on three days' notice.

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