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

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

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.
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'.
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)…

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.

Continue reading Bell v Cribb

Details

AGLC: Bell v Cribb [2012] WASCA 234
Case: [2012] WASCA 234
Decision Date: 15 NOVEMBER 2012

CaseChat Overview and Summary

The case of Bell v Cribb involved a dispute between two parties, Bell and Cribb, which was heard in the court. Bell sought an order to stay proceedings in the lower court pending the hearing of an appeal, while Cribb opposed this application. The crux of the matter was whether Bell's appeal had reasonable prospects of success, which would warrant a stay of the lower court's proceedings.

The legal issue before the court was to determine whether the appeal presented by Bell had a reasonable chance of success, and if so, whether this would justify a stay of the lower court proceedings. The court needed to weigh the potential merits of the appeal against the likelihood of success and the potential prejudice to the opposing party if the appeal were to proceed.

In examining the matter, the court found that Bell's appeal did not have reasonable prospects of success. The court considered the arguments presented by both parties and the merits of the appeal. Based on this analysis, the court determined that the appeal did not present a sufficiently strong case to warrant a stay of the lower court's proceedings. Consequently, the application for a stay was dismissed.

The court's decision was final, and no appeal lay from the lower court's decision. The court ordered that the proceedings in the lower court would continue as scheduled, without any stay pending the hearing of the appeal.

Orders