Gargan v Woodgate - [2004] NSWSC 177

CITATION: GARGAN v. WOODGATE; GARGAN v. COMMONWEALTH BANK OF AUSTRALIA & ANOR [2004] NSWSC 177

HEARING DATE(S): Friday 20 February 2004

JUDGMENT DATE:
19 March 2004

JURISDICTION:
Civil

JUDGMENT OF: Greg James J at 1

DECISION: I declare the proceedings to be an abuse and in each case, under Part 13 Rule 5, the proceedings are dismissed generally. The plaintiff is to pay the defendants' costs on an indemnity basis.

CATCHWORDS: Parties to litigation, criminal proceedings, proceedings to recover penalties, authority of party seeking to commence prosecutions - party claiming to proceed to recover penalties as a common informer - availability of the process of the Supreme Court for those purposes, unavailability of offences of obtaining benefit by false representation and perverting the course of justice to support a private right of action.

LEGISLATION CITED: Supreme Court Rules
Criminal Procedure Act 1986
Judiciary Act 1903 (Cth)
Crimes Act 1914 (Cth)
Criminal Code Act 1995
Supreme Court Act 1970
Fines & Forfeitures to the Crown Act (1670-71)
Customs Act 1901 (Cth)

CASES CITED: Hawkesbury City Council v. Foster & Anor (Court of Appeal, unreported 18 December 1997)

PARTIES :
GARGAN, Peter Alexander v. WOODGATE, Giles Geoffrey
GARGAN, Peter Alexander v. COMMONWEALTH BANK OF AUSTRALIA & ANOR

FILE NUMBER(S): SC No. 12499/2003; No. 10001/2004;; No. 13149 of 2003

COUNSEL: Plaintiff: In person
Woodgate: B. Skinner
CBA: J. Lanser (Sol)
Bartrop: R.G. Forster, SC.

SOLICITORS: Plaintiff: In person
Woodgate: Sally Nash & Co.
CBA: J.K. O'Sullivan
Bartrop: Abbott Tout

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GREG JAMES, J.

FRIDAY 19 MARCH 2004

No. 12499 of 2003
No. 10001 of 2004
No. 13149 of 2003

PETER ALEXANDER GARGAN v. GILES GEOFFREY WOODGATE

PETER ALEXANDER GARGAN v. COMMONWEALTH BANK OF AUSTRALIA

JUDGMENT

1 GREG JAMES, J: On Friday 20 February 2004, I called on these matters which had been listed in the progressive list together with the matter of Morisset Mega-Market Pty. Limited & Anor v. Peter Alexander Gargan, No. 12688 of 2002 and a further matter of Commonwealth Bank of Australia v. Peter Alexander Gargan, No. 5892 of 2003, in the Equity Division, Corporations List, as it appeared that all of the matters contained a common question of law essential to each matter.

2 I published on that day a short judgment setting out the nature of the matters and how they might proceed before me.

3 In these three matters, application was made for summary judgment by the defendants, the Commonwealth Bank and Mr. Woodgate. The matter in the Equity Division, Corporations List involves the giving of a statutory notice by Mr. Gargan in respect of penalties to which he claims to be entitled and thus that matter, as will be seen, also raises the common question. I stood that matter over to a date to be fixed pending my judgment on these present applications for summary judgment.

4 It was necessary for me to determine applications for summary judgment which have been made by the Commonwealth…

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 Gargan v Woodgate

Details

AGLC: Gargan v Woodgate [2004] NSWSC 177
Case: [2004] NSWSC 177
Decision Date: 19 March 2004

CaseChat Overview and Summary

Gargan v Woodgate is a case before the Supreme Court of New South Wales, where the plaintiff, Mr. Gargan, is pursuing penalties against the defendant, Mr. Woodgate, in relation to alleged criminal activities. Mr. Gargan claims to act as a common informer in initiating proceedings to recover penalties for offences including obtaining a benefit by false representation and perverting the course of justice. The legal issues in this case revolve around the authority of Mr. Gargan to commence the prosecution as a private individual and the applicability of the Supreme Court's process for such purposes. Specifically, the court needed to determine whether the offences in question support a private right of action and if the Supreme Court has the jurisdiction to entertain claims for penalties based on these offences.

The court examined the historical context and legislative framework governing private prosecutions in New South Wales. It found that while private prosecutions are generally not permissible, there are exceptions for certain types of offences. However, the court concluded that neither obtaining a benefit by false representation nor perverting the course of justice fall within the exceptions that allow for a private right of action. As a result, Mr. Gargan's claim to proceed as a common informer was dismissed. The court held that the process of the Supreme Court is not available for the purposes of recovering penalties for these specific offences when initiated by a private party.

The reasoning and outcome of the case establish a clear boundary on the types of offences that can be pursued privately for penalties in New South Wales. By rejecting Mr. Gargan's attempt to act as a common informer, the court reinforced the principle that certain serious criminal offences must be prosecuted by the state rather than by private individuals. The final orders of the court were that Mr. Gargan's application to commence proceedings as a common informer be dismissed, and that the penalties he sought to recover could not be pursued through the Supreme Court under the circumstances presented.

Orders