Bell v Cribb

[2012] WASCA 234

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   BELL -v- CRIBB  [2012] WASCA 234

CORAM:   NEWNES JA

HEARD:   13 NOVEMBER 2012

DELIVERED          :   13 NOVEMBER 2012

PUBLISHED           :  15 NOVEMBER 2012

FILE NO/S:   CACV 129 of 2012

BETWEEN:   CARL WILLIAM BELL

First Appellant

ALLCERT HOLDINGS PTY LTD (ACN 153 481 371) as trustee for W J TRUST trading as TWIN STAR RESOURCES (ABN 13 103 439 847)
Second Appellant

AND

NEIL RAYMOND CRIBB AS LIQUIDATOR OF COSTANOZA PTY LTD (IN LIQ) (ACN 13 103 439 847) 
First Respondent

COSTANOZA PTY LTD (IN LIQ)
Second Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :BEECH J

Citation  :CRIBB -v- BELL [2012] WASC 346

File No  :COR 48 of 2012

Catchwords:

Practice and procedure - Application for stay pending hearing of appeal - Appeal has no reasonable prospects of success

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

First Appellant               :     In person

Second Appellant          :     No appearance

First Respondent           :     No appearance

Second Respondent      :     No appearance

Solicitors:

First Appellant               :     In person

Second Appellant          :     No appearance

First Respondent           :     No appearance

Second Respondent      :     No appearance

Case(s) referred to in judgment(s):

Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84

Hedley v Spivey [2012] WASCA 116

O'Connell v The State of Western Australia [2012] WASCA 96

Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231

1. NEWNES JA:  On 13 November 2012, I dismissed an application by the appellant for a stay of an examination under the Corporations Law (Cth) pending the hearing of the appeal. I said I would provide reasons for my decision. These are the reasons.

Background

1. Pursuant to orders made by Master Sanderson on 5 April 2012, the first respondent issued a summons for the examination of the appellant under s 596B of the Corporations Act 2001 (Cth). On the return of the examination summons before a registrar, the appellant refused to take an oath or affirmation or to answer questions. The summons was relisted on a later date, when the appellant took the same approach. The first respondent then applied for an arrest warrant.

2. The summons and the application for an arrest warrant came before Beech J on 18 September 2012. On that date, the appellant handed to his Honour a document entitled 'Notification of Constitutional issue to be raised in the Supreme Court of Western Australia on 18th of September 2012 in accordance with section 78B of the Judiciary Act Commonwealth'.

3. The document stated that the constitutional issues were:

   (1)The ability of a registrar to sit as a Court and make judgments.

   (2)The registrar is an employee of a Company and not an officer of the crown.

   (3)The judge sitting in the Supreme Court is not an officer of the crown.  He is also an employee of a Company.

   (4)The Supreme Court of Western Australia sits under state acts (not laws) and statutes not Chapter III of the COMMONWEALTH CONSTITUTION ACT 1901, in direct contempt of the High Court of Australia, Lane v Morrison, Forge v ASIC and the Kable decision.

4. The primary judge informed the appellant that he would treat the document as an application to set aside the examination summons on the grounds stated in it. The appellant declined to make any submissions in support of the document, saying, in effect, that it would be inappropriate for him to make further submissions given that the primary judge was not a duly constituted court. The appellant said that the matter should await the response of the Attorneys‑General whom he had served with the document under s 78B of the Judiciary Act 1903 (Cth).

5. The primary judge declined to take that course, pointing out that the document sought to advance contentions which have been repeatedly held to be completely devoid of legal merit, referring to Hedley v Spivey [2012] WASCA 116 [7], McLure P (Buss & Mazza JJA agreeing) in which a number of those decisions are referred to. His Honour further noted that to the extent the first 'issue' is not dealt with in those cases, there is no doubt about the constitutionality of the investing of the relevant jurisdiction in registrars, referring in the federal context to the decision of the High Court in Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84.

6. His Honour concluded that as the matters sought to be raised by the appellant were entirely devoid of legal merit, they did not give rise to any constitutional issues.  He dismissed the appellant's application to set aside the examination summons.  The appellant has appealed against that decision.

The appeal

1. The details of the appeal as stated in the appeal notice are as follows:

   1.[The primary judge] erred in law by failing to exercise the suspension required pursuant to Section 78B of the Judiciary Act 1903 (Cth); and

   2.[The primary judge] erred in law by dismissing the Appellant's claim for the application of Section 78B of the Judiciary Act 1903 (Cth) on a summary basis, and such dismissal was against the weight of the evidence of the Notices provided to the Court as being served upon the Attorney-General pursuant to that section.

The disposition of the stay application

1. The application for a stay of the examination has been listed on short notice because the examination is set down for 15 November 2012.  The appellant has filed three affidavits in support of the stay.  There is nothing contained in the affidavits which is relevant for present purposes. 

2. It is unnecessary to canvass the various factors which ordinarily fall for consideration on an application of this nature.  The fundamental question is whether it is in the interests of justice to grant a stay.  It cannot be in the interests of justice to do so if the appellant's appeal has no prospect of success.  That is the position in this case. 

3. As the primary judge pointed out, it is well‑established that a contention that is trivial, unarguable, frivolous or vexatious does not involve a matter arising under the Constitution or involving its interpretation. If the alleged constitutional issue is of that nature, there is in truth no constitutional issue at all: Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231 [42]; O'Connell v The State of Western Australia [2012] WASCA 96 [90].

4. And as his Honour further pointed out, the 'constitutional issues' asserted by the appellant in the document involve contentions which have repeatedly been held to be completely devoid of legal merit.  The many decisions to that effect are conveniently collected in Hedley v Spivey.  To the extent the first 'issue' is not dealt with in those decisions, it is nonetheless clear that it is entirely without merit.

5. The decision of the primary judge is, with respect, indubitably correct.  The appeal has no prospect of success and no purpose would be served by granting a stay.  The application for a stay must be dismissed.