Citation: Hamod v State of New South Wales (No 4) [2007] NSWSC 1363
Court: Supreme Court of New South Wales, Common Law Division
Date: 19 July 2007
Judge(s): Harrison J
Background
The plaintiffs, an individual and a company, brought proceedings against the State of New South Wales and a financial services firm (UBS Australia Limited) claiming false arrest and imprisonment, malicious prosecution, and injurious falsehood. The proceedings had been on foot since 2003 and, by the time of this directions hearing, had a trial date set for 29 October 2007.
Central to the dispute was a document described as a "Platinum Certificate." The second defendant sought access to this document for forensic examination by an expert, Paul Westwood of Forensic Document Services Pty Limited. The plaintiffs had initially opposed that access.
The immediate occasion for this judgment was a directions hearing on 18 July 2007, at which it emerged that the plaintiffs had again failed to comply with the court's timetable for serving witness statements and expert reports.
Legal Issues
- Whether the impending hearing date of 29 October 2007 should be vacated given the plaintiffs' non-compliance with directions
- Whether a revised timetable for service of evidence should be imposed
- Whether the second defendant should be granted access to the Platinum Certificate for forensic examination, and on what conditions
Decision
Harrison J found that the plaintiffs had failed to comply with Order 4 of the directions made on 29 June 2007, which required service of all lay witness statements and expert reports by 13 July 2007. Although three lay witness statements had been prepared, exhibits comprising more than 15,000 pages across 100 lever arch folders had not been finalised due to what the plaintiffs described as scanning difficulties. The plaintiffs had also failed to comply with Order 10, which required a party in default to list the matter before the court and file an affidavit explaining the delay.
Both defendants applied to vacate the October 2007 hearing date. Harrison J noted that this reversed the first defendant's earlier, strongly expressed position that the matter must be heard that year. The court accepted that the hearing date could not realistically be maintained and vacated it, ordering the plaintiffs to pay any costs thrown away by the defendants as a result.
On the forensic examination question, Harrison J ordered that the plaintiffs make the Platinum Certificate available at the Manly premises of Forensic Document Services for up to four successive non-invasive examination days, subject to the second defendant first providing written undertakings (including one to return the document safely) to the plaintiffs.
A fresh directions timetable was imposed, pushing the plaintiffs' evidence deadline to 6 August 2007, the defendants' evidence to 5 November 2007, and reply evidence to 3 December 2007. The parties were given liberty to approach the list judge for a new hearing date, with a seven-week estimate.
Orders Made
- The earlier timetable orders (paragraphs 4 to 9 of the 29 June 2007 short minutes) were vacated.
- The plaintiffs were ordered to make the Platinum Certificate available for up to four days of non-invasive forensic examination at the second defendant's expert's premises by 31 July 2007, subject to the second defendant first providing written undertakings including the safe return of the document.
- The plaintiffs were ordered to serve exhibits to the two witness statements already prepared by 31 July 2007.
- All remaining plaintiff witness statements and expert reports to be served by 6 August 2007; the plaintiffs are not permitted to rely on any witness evidence not contained in statements served by that date without special leave from the trial judge.
- The defendants' witness statements and expert reports to be served by 5 November 2007.
- Reply evidence from the plaintiffs to be served by 3 December 2007.
- Each party to serve a paginated bundle of documents proposed for tender, with an index, by 31 January 2008.
- Each party to serve any objections to admissibility by 28 February 2008.
- Liberty granted to approach the list judge for allocation of a new hearing date with a seven-week estimate.
- The plaintiffs ordered to pay any costs of the defendants thrown away or occasioned by the vacation of the 29 October 2007 hearing date.
Key Takeaways
- Repeated non-compliance with court-ordered directions timetables carries real consequences: the Supreme Court vacated a confirmed trial date and ordered the defaulting party to pay costs thrown away by the defendants as a result.
- A prior concession by counsel that a hearing date would be vacated if compliance deadlines were not met was recorded and relied upon by the court, even where counsel later argued the circumstances of default were unforeseeable.
- Where a party fails both to serve evidence on time and to comply with a "self-list" obligation requiring prompt attendance before the court to explain delay, both defaults are relevant to the court's assessment of the overall case management situation.
- Forensic access to a key disputed document can be ordered on conditions designed to protect the producing party, including written undertakings as to non-invasive examination and safe return of the document.
- Strict "evidence cut-off" orders limiting reliance on unserved witness statements without special leave from the trial judge remain in force even where a broader timetable is reset, reinforcing that case management orders have genuine teeth.
Legislation and Cases Referenced
No specific legislation or cases were cited in the available text of this judgment. The decision turned on case management principles and the terms of earlier directions orders made in the same proceedings.