Hamod v Suncorp Metway Insurance Limited

[2009] HCATrans 55

[2009] HCATrans 055

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S400 of 2006

B e t w e e n -

ANTHONY HAMOD

Applicant

and

SUNCORP METWAY INSURANCE LIMITED

Respondent

Summons

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 17 MARCH 2009, AT 9.25 AM

Copyright in the High Court of Australia

MR A. HAMOD appeared in person.

MR R.A. CAVANAGH:   If your Honour pleases, I appear for the respondent.  (instructed by A R Conolly & Company)

HIS HONOUR:   Yes, Mr Hamod.

MR HAMOD:   Your Honour, fortunately I had appointed solicitors to represent me in the matter and I had an agreement with the solicitor’s firm that I pay barristers’ fees as they present them and I pay their fees at the end of the matter and unfortunately in early March the solicitors changed the agreement and wanted me to pay their fees as well on a monthly basis.  I have made an attempt to keep them on record and unfortunately I could not fund them on a monthly basis because I am waiting on collections of court orders from the State of New South Wales and unfortunately this one had not come in as yet. 

So, your Honour, on 10 March I found myself in the situation where I have a counsel who is prepared to continue but I do not have the solicitors on record and the counsel has refused to attend today without a solicitor on record.  So, your Honour, I stand here before you today not aware what is the hearing about today.  So I have written to the respondent yesterday, informed them that I intend to apply for adjournment of the hearing of today.  I have made inquiries with the Legal Aid Commission and as a pensioner on disability pension I may be entitled to legal aid, but I have to file an application and that could take anything from four weeks to six weeks before they come back and tell me, yes, I am eligible for legal aid.

Your Honour, I humbly ask if the matter can be adjourned, the hearing of the application for at least – that can we adjourn for at least six to eight weeks.  Your Honour, there had also been a development in the matter and the development is, in about last November – late November I located the thieves who stole the cars and now I have made a submission to the police in Campbelltown on 3 March with an affidavit – the copy of the video showing the thieves who stole the car and their names.  The police are currently investigating and are planning to interview the thieves.  I have made indirect contact with one of the thieves and he admitted stealing our car but refused to come forward and give a statement.

I am now relying on the police to assist me in obtaining a statement that the thief admitted stealing our car.  One of the thieves used to work for the dealership where I used to service the car, your Honour.  So it is completely new evidence now.  I thank the Lord that this evidence surfaced at present, but, your Honour, again, if I may seek an adjournment for six weeks, first, to get legal advice, second, to see if I can get legal aid and get solicitors and counsel to present me in the matter, third, is to see if we can

obtain a statement from the thieves admitting stealing the car, which is – that will help my case.

Now, your Honour, my case is of public interest because the respondent made allegation against me personally and alleged that I filed a fraudulent claim, yet the respondent had failed to come forward of any evidence in support of the allegations, have failed to inform the police they investigate my alleged fraudulent claim.  So they have put me in the corner that I have borrowed from family members over the last eight years approximately 100,000 to clear my name, your Honour, to clear my name.

Unfortunately, I suffer from post‑traumatic stress from depression, severe depression.  So some days I am very good, other days I am a different world.  I am recovering now and, well, I am recovering, I am back and I am terrified of what had happened to me in the last eight years, specifically with this item, that was a simple claim for a stolen vehicle.

HIS HONOUR:   Yes.  I think, Mr Hamod, you are drifting away from the points you were making on your adjournment application.

MR HAMOD:   Sorry, your Honour.

HIS HONOUR:   Is there anything more specific you want to say about why an adjournment of six weeks should be granted?

MR HAMOD:   Just purely so I can see if I can get legal aid and get solicitors and barristers to present me in the matter properly.  That is all, your Honour.

HIS HONOUR:   Very well.  Thank you very much.  What is your attitude?

MR CAVANAGH:   That application is opposed, your Honour.

HIS HONOUR:   Any particular reason?

MR CAVANAGH:   This reason, your Honour.  This matter has been going on now for nearly nine years.  I think this is the third or fourth set of solicitors that Mr Hamod has retained.  The matter has been through an appeal to associate justices of the Supreme Court, an application for leave, a limited right of leave, an appeal to the Court of Appeal and all on grounds, your Honour, which had previously been determined to have no merit and if one just looks even briefly at the substance of the matter, your Honour, it will be apparent that there is little prospect, in my submission, of this matter going any further.

I understand Mr Hamod’s difficulty, but if your Honour refers even to the affidavit of Mr Hamod, your Honour will see he is involved in other long‑running proceedings in the Supreme Court.  He is very concerned about the attempt to recover costs from him and there are various references in his affidavit to the attempt to recover costs.  The certificate of deemed abandonment was issued by the Court on 10 August 2007.  So here we are 18 months later after this honourable Court has issued a certificate of deemed abandonment.  He obtained some advice and some new solicitors he says and now he has terminated retainer of those new solicitors.  This has all happened before, unfortunately, your Honour, and we are here again and my client says after nine years it must oppose the matter being adjourned.

HIS HONOUR:   Yes, thank you.

MR CAVANAGH:   If it please your Honour.

HIS HONOUR:   Anything you want to say in reply to that, Mr Hamod?

MR HAMOD:   I do not know which affidavit Mr Cavanagh is referring to.

HIS HONOUR:   He is talking about an affidavit which you swore on 12 December 2008 which was filed in the Registry of this Court on 15 December 2008.  It sets out a history of ill health and of other legal proceedings you have been involved in.

MR HAMOD:   I do not have a copy of the affidavit, your Honour.  But, meanwhile, your Honour, in response I would like to add one thing.  Today – and I have informed the respondent today – I will be filing a summons in the Supreme Court applying to stay the proceedings under the certificate for costs and/or allow me to pay the cost of – allow me to pay by instalment of $1,000 per month towards the cost.  Your Honour, the big case that my learned friend referred to had finished hearing on 2 October, now waiting on the outcome.  Your Honour, the worst case scenario in that case, I was falsely imprisoned for seven months and no evidence of a crime whatsoever, the charges dismissed at committal and so I look at the worst case scenario, your Honour.

I spent seven months in prison, there is no reason.  I have lost my job, my business…..and at the time I purchased the car I had intention to salvage my business and resume work and unfortunately I had a setback healthwise and now the case has finished before the honourable Supreme Court and we are waiting on a judgment and so that is all I can say, your Honour.  Today I will be filing the summons.  I have notified the respondent of that.  They will be paid.  There is assets here, there is money there.  The worst case scenario, I have lost my wages for 14 years and my

income and all those sort of things.  There is sufficient moneys to pay their costs, your Honour.

All I beg of you to give me adjournment so I can apply for legal aid at present, get solicitors and barristers to present me properly because the case is of public interest, your Honour.  I have insured the car.  I am entitled to claim and they had no right to refuse the claim and allege what they have alleged in writing, your Honour.

HIS HONOUR:   Yes, thank you.

The applicant has applied for an adjournment for six weeks.  His application relates to the fact that the Registry have issued a certificate of deemed abandonment on the ground of his failure to comply with the provisions of rule 41 of the High Court Rules and he now applies, in effect, for the reinstatement of the proceedings.

The background to the adjournment application is that some misunderstanding or possibly some change of position has taken place between the lawyers he has had acting for him and himself.  The net effect of those events is that the solicitor who has been acting for him has ceased to act.  He says that counsel who had been briefed, while willing to appear, is not willing to appear without an instructing solicitor.  The purpose of the six week adjournment is in order to obtain legal advice and to pursue an application for legal aid.

He also indicates that information has come into his possession to the effect that persons who, on his case, stole the car which is the subject of the main proceedings have come to light and he wishes to pursue that matter in collaboration with the Campbelltown police.  He contends that the case is one of public interest because the respondent accused him of making a fraudulent insurance claim but never produced any evidence of that and he points to various financial matters of prejudice to which its conduct has exposed him.

The respondent opposes the application and points to the fact that the proceedings have been on foot for nearly nine years.  It points to a history of changing solicitors.  It points to the history of the matter having been initially heard in the Local Court of New South Wales, then in the Supreme Court by Master Malpass, then by the Court of Appeal of the Supreme Court of New South Wales and then the application in this Court which led to the issue of the certificate of deemed abandonment.

This is a piece of litigation which is peculiarly within the control of the applicant.  It was within the control of the applicant when the application to reinstate the proceedings should be brought.  It is no fault of the respondent that Mr Hamod is without legal representation today and in lieu of the length of the proceedings in the past and the need that they

either be reinstated or that their present condition continues, I would refuse the adjournment.

Now, Mr Hamod, is there anything further you wish to say in addition to the material in the affidavit that you filed late last year or in addition to what you said this morning?

MR HAMOD:   Yes, your Honour.  The certificate of abandonment, I misunderstood the certificate.  When this matter was abandoned in the Court I had a solicitor on record.  His name was Simon Diab and Associates.  He had failed to inform me that he is not turning to Court.  He had failed to instruct the barrister, David Baran, that I had a separate cost agreement with, and I was not aware of the hearing on that time, on that day.  Had I been aware, I would have attended personally, your Honour, and I would have represented myself at that time.

HIS HONOUR:   But you have explained that in your affidavit.

MR HAMOD:   That is all, your Honour, I have to say.

HIS HONOUR:   That is all you want to say.  I should just indicate that I have read the affidavit of Mr Anthony Hamod, the applicant, sworn on 12 December 2008.

MR HAMOD:   Unfortunately, I do not have a copy of the affidavit because the solicitor has not forwarded me a copy, that is all.

HIS HONOUR:   I have also read an affidavit which has been filed by the respondent.  The deponent is Peter Andrew Collins.  It was sworn on 12 March 2009.

MR HAMOD:   I have not got the copy of the affidavit, your Honour.  They have not served it on me.  I received an email yesterday with an attachment.

HIS HONOUR:   Would you like to read it?

MR HAMOD:   I will get it from the Registry, your Honour.

HIS HONOUR:   No, it is all right.  Do you rely on that affidavit?

MR CAVANAGH:   No, your Honour.

HIS HONOUR:   Very well.  There is no need to trouble you, Mr Cavanagh.

The applicant commenced proceedings in the Local Court against the respondent.  The respondent had issued an insurance policy giving cover in respect of the theft of the applicant’s vehicle.  The applicant alleged that it had been stolen from a car park in October 2000.  In its defence the respondent denied that allegation.  It also alleged that the applicant’s conduct was fraudulent.  According to the respondent, the proceedings were heard in the Local Court on an agreed basis, namely, that the only issue for determination was whether the theft occurred on that issue.  The applicant bore the burden of proof.  That that was the only issue for determination is a contention supported by the terms of the Local Court’s judgment and by the transcript of argument before that court.  The Magistrate, Ms J Huber, found for the respondent. 

The applicant’s appeal to the Supreme Court of New South Wales, Master Malpass, was dismissed.  In that court, three grounds of appeal were pressed.  The first was that the magistrate had erred in not receiving into evidence a report of Mr A J Beard, the second was that the magistrate had failed to determine the issues and the third was that she had failed to give adequate reasons.  Master Malpass rejected the second ground of appeal on the basis that the magistrate decided the case presented by the parties.  The learned Master also rejected the third ground of appeal on the basis that the magistrate had sufficiently disclosed her reasoning process.  As to the first ground of appeal, he rejected it because he thought that the magistrate had correctly concluded that Mr Beard lacked sufficient expertise.  He added that the report lacked weight and in large measure it also lacked relevance.

The Court of Appeal of the Supreme Court of New South Wales, Justice Basten, Justices Beazley and Santow concurring, dismissed an appeal.  They refused leave to appeal on various grounds but granted leave to appeal on one ground which related to the reception of Mr Beard’s report.  The grounds on which leave was not granted included the magistrate’s failure to deal with the defence of fraud and the adequacy of her reasons.  The appeal to the Court of Appeal lay only on a point of law.  The Court of Appeal held that the finding that Mr Beard lacked expertise was a matter of fact.  Justice Basten reasoned that even if there had been legal error, the point to which Mr Beard’s evidence went, namely, how the engine of the car could be started without a properly coded key, did not arise in the light of an anterior issue which was, how the person who took the vehicle could have obtained a key enabling entry into the car without activating the alarm.  Hence, Justice Basten concluded that it was not demonstrated that even if Mr Beard’s report had been received, it would have made any difference.

On 20 November 2006 the applicant applied for special leave to appeal against the whole of the Court of Appeal’s judgment.  That application sought to challenge the Court of Appeal’s reasoning in relation to Mr Beard and also its failure to give leave for the other grounds to be advanced.  In particular, the applicant complains about the failure of the courts below to deal with the fraud allegation.  The application for special leave has been deemed to have been abandoned pursuant to rule 41.13.2 of the High Court Rules.  On 15 December 2008 the applicant filed a summons seeking its reinstatement.

The applicant has filed affidavit evidence deposing to his bad health, to errors by his solicitors for which he was not responsible and to the pressures on him arising from other Supreme Court litigation in which he is engaged.  It is necessary for the applicant to give a satisfactory explanation for the delay which led to the deemed abandonment of his application for special leave and to show that that reinstatement would not be futile.  Some of the material relied on by the applicant does afford at least a prima facie basis for a satisfactory explanation and it is convenient to assume that in truth the explanations offered are satisfactory. 

However, in my opinion, reinstatement would be futile.  The ground of appeal relating to Mr Beard’s report must fail for the reasons given by Justice Basten.  The applicant’s summary of argument filed in support of the original special leave application contends that HG v The Queen (1991) 197 CLR 414 on which Justice Basten relied is inconsistent with Paric v John Holland (Constructions) Pty Ltd (1995) 62 ALR 85. That is not so. Nor does that document attempt to deal with Justice Basten’s conclusion that there was no error of law as distinct from fact. The only other ground actually pressed in the applicant’s summary of argument concerns the ground based on fraud.

The applicant contends that the courts below reversed the burden of proof.  In view of the limited issue left to the magistrate, there is no demonstrable error in the courts below.  A wider case cannot be run in the Court of Appeal or in this Court on a matter on which further evidence, which might have defeated it, might have been called.  See Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438. In addition, the fraud allegation is immaterial if the applicant fails to prove that the car was ever stolen. For those reasons, the application must be dismissed and I order that it be dismissed with costs.

MR CAVANAGH:   If the Court pleases.

AT 9.48 AM THE MATTER WAS CONCLUDED