Lewis v Home Mortgages Australia Pty Ltd

[2010] NSWSC 1345

CITATION:	Lewis v Home Mortgages Australia Pty Ltd [2010] NSWSC 1345
HEARING DATE(S):	28 October 2010
JUDGMENT DATE :	28 October 2010
JURISDICTION:	Equity Division Corporations List
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	28 October 2010
DECISION:	Order that Mr Anthony be held in custody until produced to the Court for examination.
CATCHWORDS:	CORPORATIONS – PROCEDURE – EXAMINATION – ARREST AND DETENTION – authority by which person arrested for failure to attend examination may be held in custody by Corrective Services discussed.
LEGISLATION CITED:	- Corporations Act 2001 (Cth) - s 569B - Crimes (Administration of Sentences) Act 1999 (NSW) – s 249 - Supreme Court (Corporations) Rules 1999 (NSW) – r 11.10
CATEGORY:	Procedural and other rulings
CASES CITED:	- Australian Securities and Investments Commission v Michalik (No 2) (2004) 62 NSWLR 335 - Struthers in his capacity as Liquidator of PACI Pty Limited [2005] NSWSC 864
PARTIES:	Philip Lewis (Plaintiff) Home Mortgages Australia Pty Ltd (Defendant) Dennis Anthony (Examinee)
FILE NUMBER(S):	SC 2009/291652
COUNSEL:	M.K. Hayter (Sol) (Plaintiff) D. Anthony (Examinee) (in person)
SOLICITORS:	Gillis Delaney Lawyers (Plaintiff)

2009/291652 Lewis v Home Mortgages Australia Pty Ltd

JUDGMENT – Ex tempore

28 October , 2010

1 Mr Dennis Anthony has been brought to Court in circumstances which I will shortly outline. However, the first question is whether now, being in the custody of the Sheriff's Officer, he should be detained in custody overnight to be presented to Court tomorrow at 11.00am for an examination into the affairs of Home Mortgages Australia Pty Limited.

2 Mr Anthony says that he should be released overnight on his undertaking, unsupported by any security, to appear tomorrow. He says that he is not well and that there is no reason to believe that he will not appear tomorrow at the time ordered.

3 As to Mr Anthony's medical condition, he has presented me with some documents, apparently medical certificates of one character or another. I have examined them. I do not see any evidence in those documents of any confirmed life threatening, or indeed serious, illness which would be sufficient to pose a threat to Mr Anthony's well-being if he were detained in custody overnight.

4 Mr M.K. Hayter, solicitor, who appears for the liquidator, objects to Mr Anthony's release overnight on the basis of a considerable volume of evidence which was adduced in support of the application for the Bench Warrant for his arrest showing a strong case that Mr Anthony has made strenuous efforts to avoid being served and to avoid being examined, so that it is likely that he will continue to evade the Court's process if he is able to.

5 I have regard to that evidence, upon the basis of which Barrett J made the order for issue of a Warrant for Mr Anthony's arrest. I have regard to the lack of any compelling medical evidence that Mr Anthony will suffer any serious detriment by being detained in custody overnight and I have regard to the fact that, if all proceeds tomorrow as is presently indicated, Mr Anthony will be produced to the Court at 11.00am and his examination will be concluded on that day.

6 Having regard to all of those circumstances, I do not propose to accede to Mr Anthony's request to be released on his own unsupported undertaking to appear tomorrow to answer the Examination Summons.

7 I should now make some remarks which clarify the authority by which Corrective Services NSW is to take into custody Mr Anthony and detain him until he is produced to the Court tomorrow. The procedure involved in arrest for failure to comply with an Examination Summons is somewhat obscure because it is rarely invoked. It is desirable, therefore, that I explain the basis upon which a person in the position of Mr Anthony may be kept in custody by Corrective Services pending production at an examination.

8 On 17 August 2010, Barrett J ordered the issue of a Warrant for the arrest of Mr Anthony for failure to attend on 12 and 13 August 2010 to be examined in accordance with a Summons for examination issued under s 569B of the Corporations Act 2001 (Cth). The order for arrest was made pursuant to r 11.10 of the Supreme Court (Corporations) Rules 1999 (NSW). The Arrest Warrant was addressed "to the Sheriff's Officer of New South Wales and all Sheriff's Officers" and it commanded them to:

“Arrest Dennis Anthony and bring that person before the Supreme Court sitting at Sydney on 30 August 2010 detaining that person, if necessary, in custody in the meantime.”

9 The words "detaining that person, if necessary, in custody in the meantime" are in accordance with the form of the Arrest Warrant issued by Brereton J in Struthers in his capacity as Liquidator of PACI Pty Limited [2005] NSWSC 864 at [51].

10 As a result of some investigation, Mr Anthony was found in Queensland. He was served with a copy of the Arrest Warrant orders made by Barrett J in accordance with further orders for service made by his Honour on the same day. He says now that he was not personally served with the order but that is because the orders were served in accordance with the other modes of service which Barrett J authorised. There is no reason to believe that the orders did not effectively come to the attention of Mr Anthony. Mr Anthony did not attend the Court for examination on 30 August, nor has he applied to set aside the orders for his arrest.

11 The New South Wales Sheriff's Office made arrangements with the Queensland Police to have Mr Anthony arrested and extradited to New South Wales in accordance with a new Arrest Warrant issued by me on 20 October 2010, as the previous Arrest Warrant requiring Mr Anthony to be brought to Court on 30 August had gone stale. Mr Anthony now appears in custody of the Sheriff. His examination, as I have said, will now be held tomorrow at 11.00am. Mr Anthony will be detained in custody until that time for the reasons I have previously given.

12 I am informed that Corrective Services NSW is in some doubt as to the authority by which it may take Mr Anthony into custody and hold him. The same kind of question arose in Australian Securities and Investments Commission v Michalik (No 2) (2004) 62 NSWLR 335. In that case I examined the legislation by which a person arrested for contempt of a Court order could be kept in custody until the Court could deal with the contempt charge. That case provides the answers to the questions which arise in this case.

13 Mr Anthony is a "person in custody" within the definition of that term in s 249 of the Crimes (Administration of Sentences) Act 1999 (NSW). That is because he is a "person who is in lawful custody … in accordance with a warrant … or an order of a Court": see the definition in s 249(h), and see also ASIC v Michalik at [42]. As a "person in custody", Mr Anthony can be dealt with under Pt 13 s 250 of the Crimes (Administration of Sentences) Act.

14 Pursuant to s 249 of that Act, therefore, I order:

(1) That Dennis Anthony be detained in custody until he is brought before the Court for examination on 29 October 2010 at 11.00am, unless he is earlier released by order of this Court.

(2) I order pursuant to s 250 of the Crimes (Administration of Sentences) Act that the said Dennis Anthony be given into the keeping of an officer of Corrective Services NSW, as defined in the Act, to be detained in accordance with order (1).

(3) I direct that these orders be passed and entered forthwith.

(4) Costs of these proceedings are reserved.

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