Hamod v State of NSW - [2007] NSWSC 600

CITATION: Hamod & Anor v State of NSW & Anor [2007] NSWSC 600

HEARING DATE(S): 31 May 2007

JUDGMENT DATE :
13 June 2007

JURISDICTION: 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, 21.2

CASES 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 DIVISION

Simpson 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWSC 600
Decision Date: 13 June 2007

CaseChat Overview and Summary

The case involves the plaintiff, Hamod, who brought an action against the State of New South Wales, alleging false arrest and imprisonment, malicious prosecution, and injurious falsehood. The plaintiff sought an order for discovery in relation to the case, which was subsequently fixed for hearing. The Associate Judge had made an order for discovery, which the plaintiff appealed on the basis of a factual error in the reasons provided by the Associate Judge. The court was required to determine whether the appeal should be allowed, and whether there was a need 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 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.

Orders