CITATION: Hamod & Anor v State of NSW & Anor [2007] NSWSC 600 HEARING DATE(S): 31 May 2007
JUDGMENT DATE :
13 June 2007JURISDICTION: Common Law Division JUDGMENT OF: Simpson J DECISION: Appeal dismissed with costs. CATCHWORDS: DISCOVERY – appeal from decision of Associate Judge – order for discovery – proceedings for false arrest and imprisonment, malicious prosecution, injurious falsehood – trial fixed for hearing – factual error in reasons of Associate Judge – elements of claim for malicious prosecution – need to prove prosecutor acted without reasonable and probable cause – proof of state of mind of prosecutor – particularisation of claim – alternative proposal for limited discovery – delay in application LEGISLATION CITED: Crimes Act 1900, s 352
Uniform Civil Procedure Rules 2005, 21.2CASES CITED: A v New South Wales [2007] HCA 10; 81 ALJR 763 PARTIES: Anthony Hamod (First Plaintiff)
Hamock Investments Pty Ltd (Second Plaintiff)
State of NSW (First Defendant)
UBS Australia Ltd (Second Defendant)FILE NUMBER(S): SC 20147 of 2003 COUNSEL: R McKeand SC (Plaintiffs)
J Maconachie QC/M Hutchings (First Defendant)
P Holmes (Second Defendant)SOLICITORS: Simon Diab & Associates (Plaintiffs)
I V Knight Crown Solicitor (First Defendant)
Allens Arthur Robinson (Second Defendant)
LOWER COURT JURISDICTION: Supreme Court (Associate Judge) LOWER COURT FILE NUMBER(S): SC 20147 of 2003 LOWER COURT JUDICIAL OFFICER : Associate Justice Harrison LOWER COURT DATE OF DECISION: 2 May 2007 LOWER COURT MEDIUM NEUTRAL CITATION: [2007] NSWSC 425
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONSimpson J
13 June 2007
20147/03 Anthony Hamod & Anor v State of NSW & Anor
JUDGMENT
1 HER HONOUR: This is an appeal against a decision of Harrison AssJ of 2 May 2007 (Hamod v State of NSW [2007] NSWSC 425), ordering that the (first) defendant give discovery of certain documents identified in a list headed “Amended Categories of Documents for Discovery by First Defendant”.
2 The substantive proceedings were commenced by application in the Federal Court of Australia on 19 June 2000. On or about 22 May 2003 the proceedings were transferred to this Court. The current operative initiating process is a Sixth Amended Statement of Claim (which runs to 30 substantive pages) filed on 1 June 2004. Two plaintiffs are named, Anthony Hamod, and Hamock Investments Pty Ltd. Two defendants are named, the State of NSW and UBS Australia Ltd (the Australian arm of the Union Bank of Switzerland (“UBS”)). The plaintiffs plead a variety of causes of action. The present proceedings concern only the first plaintiff, Mr Hamod, and the first defendant, the State of NSW. Relevantly, for present purposes, the causes of action pleaded by Mr Hamod are said to be “false arrest and false imprisonment”, malicious prosecution, and “injurious falsehood by members of the NSW Police”. The trial is fixed for hearing, with a 7 week estimate, commencing on 29 October 2007.
3 The following is a general account of what Mr Hamod (so far as is relevant for the…
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- Case
- [2007] NSWSC 600
- Decision Date
CaseChat Overview and Summary
The court found that the appeal should not be allowed, as the factual error identified by the plaintiff did not impact the outcome of the case. The court also held that the plaintiff needed to prove that the prosecutor acted without reasonable and probable cause, and that this required proof of the state of mind of the prosecutor. The court further held that the particularisation of the claim was not sufficient, and that the plaintiff needed to provide more specific details of the alleged malicious prosecution. The court also considered an alternative proposal for limited discovery, but ultimately found that the delay in the application was not sufficient to warrant such an order.
The court held that the appeal should not be allowed, and that the plaintiff's application for an order for discovery was dismissed. The court found that the factual error identified by the plaintiff did not impact the outcome of the case, and that the plaintiff needed to prove that the prosecutor acted without reasonable and probable cause, as well as the state of mind of the prosecutor, and the particularisation of the claim. The court also found that the delay in the application was not sufficient to warrant an alternative proposal for limited discovery.
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