MORISSET MEGA-MARKET Pty. Limited v Gargan

[2003] NSWSC 1199

CITATION:	MORISSET MEGA-MARKET PTY. LIMITED & ANOR v. GARGAN [2003] NSWSC 1199
HEARING DATE(S):	Wednesday 14 May 2003; Tuesday 2 September 2003
JUDGMENT DATE:	17 December 2003
JURISDICTION:	Civil
JUDGMENT OF:	Greg James J at 1
DECISION:	Information and summons quashed.
CATCHWORDS:	Criminal law - justices - private information - review of justices decision - whether charges offences known to the law - whether information complies with Justices Act - whether information otherwise an abuse.
LEGISLATION CITED:	Judicary Act 1903 (Cth) Crimes Act 1914 (Cth) Criminal Code Act 1985 (Cth)
CASES CITED:	Jamison & Brookmans (1993) 177 CLR 574 Munnings v. Australian Government Solicitor (1993) 68 AlJR 169 Ex parte Qantas Airways Limited; re Horsington [1969] 1 NSWLR 788 Mellor v. ACR Trading Limited (James, J. 13 June 1991) Sankey v. Whitlam (1977) 1 NSWLR 333 John L. Pty. Limited v. Attorney-General (NSW) (1987) 163 CLR 508 Stanton v. Abernathy (1990) 19 NSWLR 656 Johnson v. Miller (1937) 59 CLR 467 De Romanis v. Sibraa (1977) 2 NSWLR 264 Peterson v. Magistrate Soames; ex parte Brick & Pipe Industries Limited t/as Newbrick (1994) 76 A. Cirm. R. 291 Carbury v. Cook (1906) 3 CLR 995 Electronic Rentals Pty. Limited v. Anderson (1971) 124 CLR 27
PARTIES :	MORISSET MEGA-MARKET PTY. LIMITED & ANOR v. GARGAN, Peter Alexander
FILE NUMBER(S):	SC No. 12688 of 2002
COUNSEL:	Plaintiff: B. Walker, SC./J. Potts Defendant: In person
SOLICITORS:	Plaintiff: Clayton Utz Defendant: In person

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GREG JAMES, J.

WEDNESDAY 17 DECEMBER 2003

No. 12688 of 2002

MORISSET MEGA-MARKET PTY. LIMITED & ANOR v. PETER ALEXANDER GARGAN & ORS

JUDGMENT

1 HIS HONOUR: In this matter, proceedings were commenced by summons which was amended pursuant to orders made on 9 December 2002.

2 The orders sought in the amended summons are as follows:

“1. An order in the nature of certiorari, that the decisions of the second defendant:-
(a) to accept the information presented by the first defendant against the plaintiffs on 16 September 2002 as validly laid; and
(b) to issue a summons dated 16 September 2002 to the plaintiffs to appear at the Local Court at the Downing Centre to answer charges as a consequence of accepting that the information presented by the first defendant was validly laid;
be quashed.
2. An order in the nature of certiorari that:-
(a) the information laid by the first defendant before the second defendant on 16 September 2002; and
(b) the summons issued by the second defendant to the plaintiffs dated 16 September 2002;
be quashed.
3. Further, or in the alternative to orders one and two, an order in the nature of prohibition, restraining the second and third defendants from proceeding with any further step in the prosecution of proceedings commenced by the laying of the information by the first defendant and the issue of the summons by the second defendant to the plaintiffs.
Orders four and five are sought in the alternative to orders one to three:-
4. A declaration that the information laid by the first defendant, as informant, against the plaintiffs, before the second defendant on 16 September 2002, and the summons dated 16 September 2002 issued by the second defendant to the plaintiffs consequent upon the laying of the information, are an abuse of process.
5. An order that the summons dated 16 September 2002 be permanently stayed.”

3 Also sought are:-

“6. An order restraining the first defendant from, without the leave of the court, laying any information or complaint against:-
(a) any party to these proceedings;
(b) any person who has sworn an affidavit in these proceedings; and/or
(c) any person who is or has been a barrister or solicitor for a party to these proceedings.
7. An order that the first defendant pay the plaintiffs’ costs on an indemnity basis.
8. Such further or other orders or orders as the court deems fit.”

Summary of earlier proceedings

4 On 25 November 2002, the matter came before me on a motion by the first defendant seeking an order that the plaintiffs be compelled to answer a notice to admit facts and also on a motion by the plaintiffs seeking to restrain the first defendant from laying informations before a magistrate. At that time, I had occasion to advert to an outline of argument in written submissions filed by the first defendant in support of the orders he claimed. I published a judgment that day on certain of the matters before me.

5 On 3 December 2002, the balance of the matters that had been before me on 25 November 2002 came before me for further hearing and on that occasion I gave consideration to the plaintiffs’ claim to restrain the first defendant from laying informations against the plaintiffs, its solicitors, barristers and witnesses.

6 On 14 May 2003, the amended summons came on before me for hearing, on which occasion I determined that I should consider the plaintiffs’ principal claims for relief as sought in paragraphs 1, 2, 3, 4 and 5 of the summons, leaving consideration of the orders sought in paragraphs 6 and 7 to be considered at a later time.

7 Following that hearing, I brought the matter back before me on 2 September 2003 to consider the matters to which I referred in the judgment I gave that day. Those matters included whether I should exercise a discretion to proceed to determine the questions raised by the amended summons, although they raised reviews to which s.9 of the Administrative Decisions Review Act (Cth) applied. The upshot was that I decided that it should remain for me to determine whether the information and summons should stand and, if I concluded they should not, if necessary, to deal with the remaining orders sought later. I note here than an order had earlier been obtained in the proceedings by consent staying the proceedings on the summons and information in the Local Court pending the determination by this court of these proceedings.

The appearances

8 Mr. B. Walker, QC. with whom was Mr. J. Potts appeared for the plaintiffs and the first defendant appeared in person. There was no appearance for the second and third defendants who had submitted to the orders of the court and had been excused. Although notices had been served under s.78A of the Judiciary Act, there was no appearance in consequence.

The evidence

9 Extensive affidavits have been filed in the proceedings by both sides. At each point, voluminous written submissions have been provided. The plaintiffs have provided me with a schedule of evidence referring to eight affidavits and numerous exhibits. Much of this material goes to the orders sought in paragraphs 6 and 7 of the summons. I have also been provided with a most extensive list of objections to the first defendant’s evidence and other material set out in the form of a table.

10 The first defendant’s documents and material have been provided to me in two folders which were marked for identification two on 14 May 2003. These folders were prepared by the plaintiffs incorporating the relevant material. I directed an extract be taken out of the folders explaining the utility of the tab numbers under which the documentation was filed. I have caused to be placed with the first of those folders an extract from the transcript setting out the explanation of the tab numbers.

The information

11 The information laid by the defendant was tendered in evidence and was marked Exhibit A. On its face it purported to be an information under Divisions 1 and 2 of the Justices Act (NSW). It is common ground that it was laid before a justice and that that justice accepted that information causing a summons to be issued summonsing the defendants to the Local Court at Level 5, The Downing Centre at Sydney on 1 October 2002. The information shows the first defendant, Peter Alexander Gargan, as the informant, giving as his occupation, “Statutory Commonwealth Public Officer”. It refers to the plaintiffs in the present proceedings as “defendant 1” and “defendant 2”. It alleges two offences, the first said to be constituted by conduct said to be contrary to s.43 of the Crimes Act 1914 (Cth), the second by conduct said to be contrary to s.134.1 of the Criminal Code Act 1995 (Cth). The first offence is referred to in the document as follows:-

“Alleged offence
1. That on Wednesday the 28th day of August 2002, at Newcastle in the State of New South Wales, the first and second defendant did urge a District Court Judge, one Judge Nield, to strike out as unknown to law a statement of claim and an action in law entitled No. 543 of 2002 in the Federal Jurisdiction of the said District Court by the automatic application of s.39(2) Judiciary Act 1903 (Cth) contrary to the said Act, namely s.43 Crimes Act 1914 (Cth), whereupon the said informant prays that I, the said justice, will proceed in the premises according to law, and issue my summons to the defendants.”

12 The second offence asserted is referred to in the document as follows:-

“2. That on Wednesday the 28th day of August 2002, at Newcastle in the State of New South Wales, the first and second defendant did urge a District Court judge, one Judge Nield, to strike out as unknown to law a statement of claim and an action in law entitled No. 543 of 2002 in the Federal Jurisdiction of the said District Court by the automatic application of s.39(2) Judiciary Act (Cth) contrary to the provisions of s.134.1 Criminal Code Act 1995, obtaining property (namely the benefit of a chose in action) by deception by deceiving the said Judge Nield into believing he did have jurisdiction to determine a Federal liquated claim for a penalty by striking it out, when the plaintiff clearly pleaded the Constitution as a binding contract, and for a Federal jury to determine the matter if contested …”

13 The document concludes:-

“Whereupon the said informant praised that I, the said justice, will proceed in the premises according to law, and issue my summons to the defendant.”

14 Section 43 of the Crimes Act 1914 (Cth) provides:-

“(1) Any person who attempts, in any way not specially defined in this Act, to obstruct, prevent, pervert, or defeat, the course of justice in relation to the judicial power of the Commonwealth, shall be guilty of an offence.
Penalty: Imprisonment for five years.
(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the judicial power is of the Commonwealth.
(3) For the person to be guilty of an offence against subsection (1), the person’s conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.
(4) A person may be found guilty of an offence against subsection (1) even if doing the thing attempted is impossible.”

15 Section 134.1 of the Criminal Code Act 1995 (Cth) provides:-

“(1) A person is guilty of an offence if:-
(a) the person, by a deception, dishonestly obtains property belonging to another with the intention of permanently depriving the other of the property; and
(b) the property belongs to a Commonwealth entity.
Penalty: Imprisonment for 10 years.”

16 The document is signed by the informant and is said to have been exhibited (sworn) at 14 Downing Street in the said State on the day first above written, (ie., 16 September 2002) and purports to have been signed by a justice of the peace. The document is sufficiently of the form prescribed by the Justices Act 1902 as then in force. It is common ground that the summons was issued in consequence of the laying of the information.

Particulars

17 It is apparent that no particulars of the first alleged offence other than that the first and second defendants sought to have the statement of claim struck out “as unknown to the law” are given. The assertion appears to be that by virtue of that matter only the offence alleged was committed.

18 In explanation by way of context to the events said to give rise to the offences, there was by consent tendered to me in evidence a copy of the District Court statement of claim which is marked Exhibit B which on its face was incompetent.

19 In relation to the second offence, I was asked to treat as common ground that the coming into effect of s.134 of the Criminal Code Act predated the commission of the alleged crimes. It was also agreed as common ground that for the informations to stand good in law, it was necessary they allege offences known to the law.

20 On behalf of the first defendant, it was submitted it was sufficient that that offence be stated in the words of the statute creating it. Notwithstanding that Mr. Walker, SC. for the plaintiffs did not accept that submission, I am content to proceed on the basis that such would have been sufficient having regard to s.145 of the Justices Act, as it then stood.

21 It was further agreed, however, as common ground that if the offence is not stated in the words of the statute creating it but merely reference is made to the relevant section number, then the statement of the particulars of the offence must so refer to the acts or omissions constituting the offence as is capable of relating those acts or omissions to the words of the statute. It will therefore be necessary for me to examine the particulars in each count to ascertain if the count alleges an offence known to the law.

Progress of the proceedings

22 I was provided by the first defendant with the written submission dated 16 October 2002 in which he expressed his reliance for evidentiary purposes on the documents annexed to the affidavit of Norman Lucas of 15 October 2002. In that document, the first defendant makes various legal submissions and also seeks various admissions. When it came to consideration of the plaintiffs’ objections as set out in the schedule with which I was provided, I ordered that publication of the material to be referred to in submissions concerning such material as was objected to on the basis that it was scandalous, be suppressed, but determined that I might consider that material as an assertion in particular of what is said to be facts which are said to attract the character of the crimes said to be charged.

23 When the matter was opened to me, I drew to the attention of senior counsel that the offences were said to have been committed by the plaintiffs in circumstances where the first plaintiff was asserted to be a litigant before Judge Nield in the District Court and the second plaintiff, that litigant’s solicitor in the very proceedings. What appeared to have been alleged against them was said to have arisen in the conduct of those proceedings and in the apparently regular conduct of those proceedings by way of an application to a District Court judge to dismiss proceedings apparently irregularly brought. I was informed of so much by senior counsel for the plaintiffs and the first defendant confirmed that his complaint lay in a contention that the plaintiffs had sought that the District Court judge strike out proceedings in circumstances in which, in his submission, they were not entitled to.

24 I was provided with an extensive outline of written submissions of some 34 pages dealing with the nature of the information and the criminal proceedings, discursively, at p.10 and onwards.

25 Submissions were also made concerning what relief might be available if the plaintiffs’ contentions were upheld at pp.15-26.

26 The defendant asserted a status as an officer or official of the Commonwealth and claimed an entitlement under what he asserted to be Federal law to recover penalties; to require a jury trial in proceedings; and not to be liable to the ordinary incidents of State judicial procedure as would permit a judge to strike out an incompetent action.

27 In this submissions filed on 18 November 2002, and at various other points where he filed written submissions or wrote letters which have set out his contentions as to legal matters and which have been provided to me, the first defendant has made numerous discursive and to a great extent incomprehensible submissions concerning such matters as the status of the constitution and an entitlement on his part to bring proceedings for penalties in which he says he invokes the judicial power of the Commonwealth. I put those submissions aside, notwithstanding their voluminous nature and the plaintiffs’ submissions also of considerable volume which attempted to meet in detail all the defendant contentions since, distilling, as I attempted to do during the hearing of 14 May, the parties’ contentions to those essential to support the orders sought or resisted, must turn to the effect on the second count of the decision of the High Court in Jamison & Brookmans v. The Queen (1993) 177 CLR 574.

Whether the information alleges offences known to the law

28 In that case, the High Court held that parties and their legal representatives cannot be held liable for what was said or done in court, even if what was said was false, as attempting to obtain a benefit by deception. Criminal liability for such acts is to be found only in the offences involving the administration of justice. This principle would appear to dispose of the second count.

29 Further written submissions to this effect dated 14 May 2003 were provided by the plaintiffs in which my attention was drawn to Munnings v. Australian Government Solicitor (1993) 68 ALJR 169 per Dawson, J. at 172.

30 On this question, the first defendant replied in a written submission of 15 May 2003 contending that s.6 of the Supreme Court Act made the Supreme Court Rules prevail over any prior statute and that what had occurred was an attempt to oust the jurisdiction of the court by some executive fiat. It is contended that an affidavit of Mr. Lucas contending that no cause of action exists took the matter “out of the contemplation of what was under consideration in Jamison & Brookmans” and that this was an attempt to oust the jurisdiction of the common law courts which was void at common law and that the High Court justices were bound to affirm such a principle.

31 The submissions attempted to distinguish between words “spoken in office”, see Jamison & Brookmans (supra, p.583) and steps taken in proceedings including strike out applications, in particular, because it was asserted that strike out applications of their very nature are designed to oust the jurisdiction of the court and pervert the course of justice and were “ever outside the ambit of the common law”. It was claimed that striking out pleadings brings the Sovereign into contempt as playing favourites.

32 I reject those submissions. Jamison & Brookmans (supra) is directly applicable. The allegation of the second offence is plainly not maintainable.

33 The sufficiency of the allegation of the first offence turns upon the defendant’s submissions that he had some right to avoid the ordinary procedures in the civil jurisdiction of the District Court. That right could only be found if I accepted his submissions about Federal law and the Constitution. I do not. Those submissions demonstrate a total lack of comprehension of basic legal principle. The first defendant is not a Commonwealth officer or official nor can he, by his own assertion, make himself one or convert matters of State jurisdiction into the exercise of Commonwealth judicial power. His views of the law have apparently led him to believe he can use the courts and the criminal courts to obtain money from defendants by way of penalties. He has no lawful right to do so. So far as he attempts to use the courts for such purposes, he is abusing the processes of the courts. Equally with all others, the first defendant is amenable to ordinary court procedure. The regular employment of court processes does not give rise to any offence against the administration of justice. Therefore the first count alleges no offence under s.43 nor any other offence known to the law.

What is the remedy?

34 In Ex parte Qantas Airways Limited; re Horsington [1969] 1 NSWLR 788, it was held that in receiving a complaint (and it follows that in accepting the laying of an information) and issuing a summons thereon, a justice is not acting merely ministerially, but is exercising a discretion which is traditional in character and that the action of the justice is amenable to supervision by this court by the procedures now available under s.69 of the Supreme Court Act in lieu of the prerogative writs. See also Mellor v. ACR Trading Limited (James, J. unreported 13 June 1991).

35 In Sankey v. Whitlam (1977) 1 NSWLR 333, re Horsington (supra) was followed. At common law, it was necessary for an information to contain all the essential legal elements necessary to be proved together with sufficient factual particulars to indicate the time, place and manner of the defendant’s acts or omissions which is alleged formed the basis of the offence: John L. Pty. Limited v. AG (NSW) (1987) 163 CLR 508; Stanton v. Abernathy (1990) 19 NSWLR 656. Section 145A(1), now repealed, and its application to avoid essential defects in the information, particularly in the light of s.30 concerning defects in form and substance, need not, be considered.

36 In John L. (supra), the requirements of the common law as stated in Johnson v. Miller (1937) 59 CLR 467 per Dixon, J. at 486 and which observations were cited with approval by Mahoney, JA. in De Romanis v. Sibraa (1977) 2 NSWLR 264 at 291-292 concerning the role of particulars, was discussed. The history of the summary jurisdiction and the necessity for proper particulars and a proper statement of the nature of the charge, is to be found set out in detail in Peterson v. Magistrate Soames; ex parte Brick and Pipe Industries Limited t/as Newbrick (1994) 76 A. Crim. R. 291, in the judgment of Gallop, J.

37 The learned authors of Criminal Practice and Procedure, New South Wales by Howie & Johnson, Butterworths in the notes to s.21 refer to the laying of an information as necessary to invest the Local Court with jurisdiction to proceed to a committal hearing. Section 41, which provides for the procedure on the hearing of the committal, commences with the words “whenever a person charged with an offence upon an information under s.21 …”. The notes to s.20 refer to that section being unable to cure an absence of jurisdiction: see Carbury v. Cook (1906) 3 CLR 995 and it appears on its face that s.41 is not applicable unless an information complying with s.21 and Part 4 of the Act has been laid.

38 In Electronic Rentals Pty. Limited v. Anderson (1971) 124 CLR 27, Windeyer, J., obiter, referred to the obligation of the justice when performing the duties of his office to perform those duties regularly and in strict accordance with the law and to the necessity for a written information to be duly laid conforming to the requirements for an information. I share his Honour’s views.

39 Section 21 does not, in my view, entitle a justice to receive an information for an offence which, on the face of the information, could not be made out, or to put the matter somewhat differently, where an information apparently asserts an offence, but describes the manner in which it is said the offence was committed (an essential requirement of a valid information: see John L. (supra)) in such a way as to show, that no such offence has been committed, the information is not one that complies with the requirements of s.57. I accept the submissions of the plaintiffs that neither count discloses any offence known to the law. The information did not comply with the Act and was invalid. It was admittedly issued for the extraneous purpose of seeking the informant financially benefit from unmaintainable allegations of criminal offices. It was and is an abuse of process.

Conclusion

40 From all of the above I draw the conclusion that it is open to this court in accordance with the usual principles of administrative review, to quash both the laying of the information and the consequential issue of the summons.

41 I cannot refrain from observing that had the matter been placed before a magistrate on the return date of the summons, it appears to me highly likely the plaintiffs would have succeeded in having the matter dismissed without recourse to this court. The taking up of considerable time and the occasioning of considerable costs might have been avoided. Notwithstanding, I consider the plaintiffs have made good their case and consider the information and summons should be quashed.

42 The plaintiffs may have the matter re-listed by arrangement with my associate for consideration of what formal order should be made and for directions as to the further hearing of the matter.

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Last Modified: 12/18/2003