Goldspink, R.l. v Moodie, R.G.

[1988] FCA 23

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IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) NO. G713 Of 1987
)
GENERAL DIVISION	1

BETWEEN:  RICHARD LINDSAY GOLDSPINK

Applicant

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AND :	ROBERT GEORGE MOODIE & ORS	:	_j
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Respondent

CORAM:	Davies J.
-	DATE :	22 January 1988
PLACE:	Sydney

REASONS FOR JUDGMENT

I will deal first, gentlemen, wi

application. The applicant, Richard Lindsay Goldspink, and

four other persons were in 1985 charged with eight counts of

conspiracy to defraud the Commonwealth, the substance of each	t
charge being a conspiracy to avoid the payment of income tax by virtue of tax avoidance and bottom of the harbour	I :
arrangements. The affairs of approximately 1400 companies	i -
were involved in the prosecution. Committal proceedings in	I ,
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respect thereof, taken before Mr Butler, Stipendiary

Magistrate, have taken a considerable time and are still on

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foot. The defendants have not	yet made their addresses.	I	,	m
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Mr Goldspink, who was formerly a practicing accountant and is

now an undischarged bankrupt by virtue of civil recovery

proceedings brought in relation to the subject taxation

arrangements, has problems in addition	to a present shortage
of funds.	He has psychological problems and is suffering from

neurosis and phobia. There were some medical reports in the

material before me, one of which has described his condition

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as phobic anxiety disorder, another of which has described his

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problem as a disorder of personality as a manifestation of

which he has phobic symptoms. To date, Mr Goldspink has

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conducted his own defence in the committal proceedings,	not
being able to afford legal representation.

In March 1987, the Director of Public Prosecutions

came to the conclusion that four of the taxation arrangements,

the subject of the prosecutions, had occurred after the coming

into operation of the Crimes Taxation Offences Act	1980 and
had been backdated. Four new charges were laid against	Mr

Goldspink and one of his co-defendants, Mr Newby, and Mr

Butler, Stipendiary Magistrate, was informed that the charges

before him in relation to those matters were withdrawn. Those

charges were laid in March or April of 1987 and the four

charges were fixed for hearing on	1 February 1988, the hearing
being expected to last three weeks. On	1 December 1987,
Mr K.R.	Murray QC, senior counsel f o r Mr Gofdspink, applied to
Mr P.M. Norton, Stipendiary Magistrate, for	an order that the

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four new charges be stayed until the conclusion of the

proceedings before Mr Butler.	A ground of the application	was
that it would	be unduly oppressive to undertake the hearing	of

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those charges while Mr Goldspink had to contend with the

committal proceedings before Mr Butler.

The learned magistrate refused the application, being of

the view that it was desirable to proceed with expedition with

the new charges and that	Mr Goldspink would not be unduly
prejudiced by their	so proceeding.

On 9 December 1987, Mr Goldspink lodged with this Court

an application under the Administrative Decisions (Judicial
Review) Act 1977 for orders of review with respect to the

decision of the Director of Public Prosecutions to institute the

four new charges and the decision of Mr P.M. Norton, Stipendiary

Magistrate, refusing to stay the continuance thereof. The
application is intended to encompass also action by the Director

of Public Prosecutions in continuing to prosecute the charges

while the proceedings before Mr Butler were on foot.

The application to this court was returnable in the

first instance before Mr Justice Fox on 18 December 1987. No

directions were given on that day, presumably because the parties
were not agreed	as to the directions that should be given. The
matter was adjourned to the directions list	on 5 February 1988.
His Honour intimated that	it could or might be proper for the

magistrate hearing the committal proceedings not to proceed

pending the determination of the matter in this court.

On 24 December 1987, M r Justice FOX handed down a

reserved decision in a somewhat analogous application brought by

Mr Newby. The subject of that application was the institution of

the new charges.	Mr Justice Fox rejected the application taking	;-
as one ground for that step the fact that application had	not	l
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been made in the first instance to the Magistrates Court to have	I .
those proceedings dismissed as	an abuse of process. His Honour
thought that an application should	be made to this court only

!	after the matter had first been dealt with	n the Magistrates
Court.

Shortly after the handing down of that decision the

respondent in the present proceedings approached the registrar

for a date for the hearing of this matter in January 1988. The

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seeking of a date for hearing in January was in my opinion

i premature for no directions had been given as to the future

conduct of the matter. If the view expressed by Mr Staehli to me

this day, namely that there is no merit in the application, be !

correct, it	may have been appropriate for the respondent to seek
to have the application dismissed	or stayed on the ground that it

was vexatious and had no prospect of success. If such an ! . application had been made it could properly have been dealt with

this month but no such application was made and it would not have

been proper to set	down the matter for hearing	as if it had been
fully prepared.

The registrar properly referred the matter to the

directions list. It came on before	Mr Justice Beaumont on 15
January last and his Honour directed that the application	be
listed this day	for directions and for the hearing of any

interlocutory applications. Mr K.R. Murray QC and Mr A. Barrie

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appeared for the applicant today and Mr D. Staehli appeared for

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the respondents. I shall deal hereafter with the question of

directions and will deal at the moment only with the application,

which was made by Mr Murray, for an interlocutory order

restraining the hearing of the committal proceedings fixed for 1

February next. Mr Murray put the application on the basis that

if an interlocutory order were not made, the subject matter of 1..

the dispute in these proceedings would disapppear for the i

i substantial order sought in the review is that the committal

proceedings should not go ahead at this time, being oppressive.

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Mr Staehli submitted in substance that the application ! .

had no merits and would inevitably fail. He submitted that to

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grant the injunction would be to achieve for the applicant what

the application sought and that it would interfere with the

ordinary and proper processes of criminal justice system.

! The principles to be applied have been enunciated in

American Cyanamid CO v. Ethicon Limited, (1975) AC 396 in which,

at page 409, Lord Diplock stated that, on the hearing and , .

application for an interlocutory injunction, the court should not I : .

embark upon anything resembling a trial of the proceedings. At I ,

pages 407 to 408, his Lordship rejected the view that it was necessary to establish a prima facie case and said and I quote:-

"The court no doubt must be satisfied that the claim

is not frivolous o r vexatious; in other words, that

there is a serious question to be tried."

At page 408, his Lordship said and I quote:-

"So unless the material available to the court at the

hearing of the application for an interlocutory
injunction fails to disclose that the plaintiff has
any real prospect of succeeding in his claim for a
permanent injunction at the trial, the court should

go on to consider whether the balance of convenience

lies in favour of granting or refusing the

interlocutory relief that is sought."

The view adopted in that case has since been adopted in many

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cases in Australia. It is sufficient for me to refer to Castlemaine Tooheys Limited and Others v. State of South Australia 67 A.L.R. 553, particularly at 557-8, and to

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Aboriginal Development Commission v. Ralkon Agriculture CO Pty j

Limited, 74 A.L.R. 505. The first question therefore is

whether, on the material before the court at this early stage,

it appears that the application is vexatious and without a

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serious question to	be tried or whether, on the contrary,
there does appear from the material to	be a serious question
that ought to go to trial.	So far as the principal
application deals with the decision of the Director of Public	._
Prosecutions to institute the four charges, I do not see any material which raises a serious question in relation to that.

Firstly, there is a lack of material as to the

reasons for the institution of the charges. Secondly, the	i
application was out	of time and an extension of time would be

required to deal with that decision. Lastly, this 1 s not a I .

matter which was raised in the magistrate's court and I

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entirely agree with what Mr Justice Fox had to say about hat.

However, on the question as to whether there should be a stay

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while the committal proceedings before	Mr Butler are
concluded, there is, I think, a serious question	to be dealt
with. The evidence of	M r Goldspink shows and I quote:-

"The committal proceedings before	Mr Butler S.M. have
to date involved 115 sitting days;	65 witnesses,
180,000 documents in evidence; approximately	10,000
pages of transcript and	1326 companies."

Mr Goldspink states also in	a affidavlt which	was filed this
day and I quote:-

"On 7 December 1987, because of the huge volume of documents relating to me, I requested five months for preparation of my closing address. The other

defendants asked for at least three months.	Mr
Butler S.M.	set 2 4 March 1988 as the date for closing
address.	"

It seems to me that there is	a serious question, at least an
arguable case, that the committal proceedings in respect	of the
new charges ought not to have	be n permitted to go ahead in

February while Mr Goldspink was involved in the preparation of his address to Mr Butler, his address being required as it now

appears by 24 March. I take into account the fact that Mr

Goldspink is unrepresented in these committal proceedings and is

a person without legal background who has neurotic and phobia

problems. It does not appear that the date of 24 March had been

fixed at the time when Mr Norton refused the application to him.

But what was known by Mr Norton on 1 December 1987 was that on

the following Monday,	7 December, Mr Butler would set down a
timetable for the continuation of the matters before him.	It was

on the following Monday that Mr Butler fixed the date for the

submission of the defendant's addresses. Mr Norton was also

aware that there would	be further hearings and indeed a further
hearing is fixed before	MC Butler for 3 February. There is, I

think, an issue as to whether or not it was oppressive to Mr

Goldspink, having regard to his circumstances, to have to face

three weeks of new charges while in the process of preparing his

address to be put to Mr Butler.

Having made these remarks, I should make it clear that I ',

do not have any view about the success	or failure of the
application and I express no criticism whatever of	11r Norton's

decision.	It is simply for me	at the moment to ascertain whether
there is an issue which ought properly	to go to trial and	on
which arguments on both sides can	be put.	I think in the present
case there is such an issue.

I have therefore not attempted to form any final view

about the success or failure of the arguments that might be put

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on either side and, of course, I recognise that the material

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before me is not the material in the form in which it will I .

finally be when the application comes on for trial.

Turning to the balance of convenience, it was not put by

the respondents that there would be any prejudice to them if an

injunction went but I take into account the considerable public

interest in the expeditious handling of criminal charges.

I€ there is an injunction then the injunction would

merely delay the hearing of the charges. If no injunction goes

then the applicant will totally lose his opportunity to obtain

relief against the processes that he claims are oppressive.

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In my view, the balance of convenience falls clearly on

the side of the grant of an injunction at the present time, an

injunction delaying the hearing of the committal proceedings

until such tlme as the issue has been litigated in this court.

For those reasons I am of the view that there should be

l	an injunction until the hearlng and determination of the principal application or further order. The injunction should go
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to the first and second respondents and should restrain them from continuing the prosecution proceedings In relation to the four
new charges. Mr Murray also sought an injunction in relation to
other prosecution proceedings but it does not seem to me that
those are matters presently before the court and I do not include
them in the order.

It is, I think, unnecessary for me to make any order as

against the local court and I shall therefore make the order in

the form I have expressed it. I shall reserve liberty to apply

so that application can be made at any time either to vary it or

to terminate it.	. -
I certify that this and the
preceding pages are a true copy	f

the Reasons for Judgment herein of

the Honourable	Mr Justice Davies.
Associate	bp-
Date:	() '  *> I '

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Counsel for the applicant: M r K.R. Murray QC ;'-

with Mr A. Barrie

Solicitors for the applicant:  M r R. Goldspink

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Counsel for the respondent:  Mr D. Staehli

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Solicitors for the respondent:	Director of Public Prosecutions	I
Date of hearing:	22	1988

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