O'Meara v McTackett and 7 Ors
[2000] NSWSC 933
•5 October 2000
CITATION: O'Meara v McTackett & 7 Ors [2000] NSWSC 933 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 12390/99 HEARING DATE(S): 8 September 2000 JUDGMENT DATE: 5 October 2000 PARTIES :
Director of Public Prosecutions (NSW)
Kenneth Ian O'Meara
(Plaintiff)
(Sixth Defendant)JUDGMENT OF: Master Harrison
COUNSEL : Mr P Singleton
(Sixth Defendant)SOLICITORS: Ms Helen Langley
Mr K I O'Meara
(Sixth Defendant)
(Plaintiff in person)CATCHWORDS: Strike out - abuse of process LEGISLATION CITED: Supreme Court Rules - Part 13 r 5 & Part 15 r 26
Australia Act - s 7CASES CITED: Air Services Australia v Zarb (NSWSC unreported, 26 August 1998)
Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Webster & Anor v Lampard (1993) 177 CLR 598DECISION: See para 30
12
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER HARRISON
THURSDAY, 5 OCTOBER 2000
12390/99 - KENNETH IAN O’MEARA v
JUDGMENT (Strike out - abuse of process)
STEVEN GRAHAM McTACKETT & 7 ORS2 Although the sixth defendant is named in the summons as “Nicholas M Cowdery QC” in his capacity as the Director for Public Prosecutions, it was common ground that the sixth defendant should be the Director of Public Prosecutions (NSW). Accordingly, the name of the sixth defendant is changed. The name “Nicholas M Cowdery QC” is deleted and the Director of Public Prosecutions (NSW) is inserted as the sixth defendant.
1 MASTER: By notice of motion filed 29 June 2000 the Director of Public Prosecutions (NSW) the sixth defendant seeks that the plaintiff’s summons filed 30 September 1999 be struck out as against it as an abuse of process; or alternatively that the summons be struck out as against the sixth defendant on the basis that fragmentation of the criminal process against the plaintiff in the District Court of New South Wales is inappropriate. The sixth defendant relied on the affidavits of Helen Christine Langley sworn 29 October 1999, 23 June 2000 and 4 September 2000. The plaintiff relied on his affidavits sworn 29 September 1999 and 26 October 1999.3 Part 13 r 5 says:
The law in relation of summary judgment
4 Part 15 r 26 provides:
“(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings -
(a) no reasonable cause of action is disclosed;
(b) the proceedings are frivolous or vexatious;
or
(c) the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.”
“(1) Where a pleading -
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the Court,
the Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleadings be struck out.
(2) The Court may receive evidence on the hearing of an application for an order under subrule (1).”
5 In the decision Air Services Australia v Zarb (NSWSC unreported, 26 August 1998) Rolfe AJA found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in Zarb.
6 In General Steel Barwick CJ, who heard the application alone stated:7 Barwick CJ also said:
“Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”
8 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous testing stating, at 602:
“It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense.”
9 According to Rolfe AJA in Zarb:
“The power to order summary judgment must be exercised with ‘exceptional caution’ and ‘should never be exercised unless it is clear that there is no real question to be tried.”’
“The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241.”
10 The paragraphs of the summons which affect the DPP are 9, 10, 11 and 21.
11 It is these paragraphs that the Director of Public Prosecutions seeks to have dismissed or alternatively struck out. Paragraph 9 seeks:12 Paragraph 10 seeks:
A declaration that the presence of the fifth defendant, being the informant in another matter currently before the courts, involving the plaintiff, and with the fifth defendant having sighted and/or having had the opportunity to sight privileged and confidential case notes relating to the matter, does prejudice the plaintiff to the point where to maintain the indictment would be a miscarriage of justice.
13 According to the plaintiff paragraph 10 ensnares paragraph 11 of the summons. Paragraph 11 seeks:
“A declaration that attempt by the sixth defendant to exercise the powers and functions of Her Majesty under the Director of Public Prosecutions Act 1986 in respect of the indictment laid under the provisions of s 4 of the Criminal Procedure Act 1986 are prohibited by s 7(2) of the Australia Act 1986 No 142 and s 109 of the Commonwealth Constitution .”
14 Paragraph 21 seeks:
“An order that the indictment dated 29 August 1997 be quashed.”
“An order that the sixth defendant pay the plaintiff general and/or exemplary damages in an amount to be determined.”
15 Paragraph 21 is consequential and its fate is determined by whether paragraphs 9 to 11 survive. If the plaintiff has no cause of action, he is not entitled to damages. The plaintiff has sought the sum of $1,000,000 although in court he stated that one billion dollars would not restore his life.
16 The plaintiff is currently facing an indictment in the District Court which pleads three charges, an appeal in the Court of Appeal, proceedings in the Federal court and an application for special leave in the High Court. A more detailed history of some of these proceedings is given in the affidavit of Helen Langley sworn 23 June 2000.
17 On 15 February 1999, Moore DCJ gave judgment in relation to Mr O’Meara’s notices of motion. The first was a motion in which an order was sought firstly that the matter be referred to the Supreme Court for determination and secondly that that determination be that Her Majesty the Queen be found guilty of criminal contempt of the Supreme Court. It was not proved that the motion had been served on Her Majesty and the first motion was withdrawn and dismissed.
18 The fourth motion was a matter in which there was a motion similar to the first motion in which the respondent was Ms Natalie Evelyn Sheard and that motion also was not pressed. Moore DCJ did not formally refuse the orders sought on that day but on 15 February 1999 he did so and declined to make the orders sought in the notice of motion against Ms Sheard.
19 In relation to motions 2 and 3, his Honour stated:20 His Honour also stated:
“Motion No 2 was a motion that concerns the Director of Public Prosecutions, Mr N R Cowdery QC. The motion sought that the matter be referred to the Supreme Court for determination, that pending the determination of the Supreme Court the indictment against Mr O’Meara be stayed for the reason that if the indictment was found to constitute a criminal or contemptuous act then it may well be found to be “void and without power”. The motion went on to seek an order that Mr Cowdery be found guilty of criminal contempt of the Supreme Court and for consequent orders of imprisonment and the like.
Motion No 3 encompassed an order that Ms Fiona Kay be found guilty of criminal contempt of the Supreme Court and sought the same orders which were sought as in the case of the motion concerning Mr Cowdery. The distinction between the two of them was that Ms Kay was alleged to have served on Mr O’Meara a document in the form of an indictment and in the case of Mr Cowdery the allegation was that he had caused to be delivered or served upon Mr O’Meara the same document.”
“In the case of any prosecution it would be a matter for the prosecuting authority (granted the prosecuting authority must exercise its discretion responsibility) to decide in which court the proceedings should be brought. In the present matter if there were to be a prosecution it could clearly, and in my respectful view should, be brought in the District Court.
Therefore this is not a matter which should be referred to the Supreme Court for determination. In that event I refused to make the order sought in paragraph (3) of the Notice of Motion, that is the order being sought that the matter be referred to the Supreme Court for determination.
Paragraph (4) seeks an order that pending the determination of the Supreme Court the indictment be stayed for the reason that in the event that the indictment is found to constitute a criminal or contemptuous act then it may well be found to be “void and without power.” As I have declined to make the order referring the matter to the Supreme Court then as a consequence I decline to make that order sought in paragraph (4).
Paragraph (5) asks, in Motion No 2 Mr Cowdery, and in Motion No 3, Ms Kay, be found guilty of criminal contempt of the Supreme Court by causing the document to be sent or by serving it. This Court does not have power to make a finding of a contempt of the Supreme Court. That can only be done by the Supreme Court itself on referral from this Court and I decline to make the orders sought in paragraph (5).
Paragraphs (6), (7) and (8) in each Notice of Motion seek orders consequential on a finding of guilt of criminal contempt of the Supreme Court and I therefore decline to make those orders.”
21 In summary, aside from an order that the notice of motion be heard instanter, His Honour declined to make any orders sought in those four notices of motions.
22 Moore DCJ has reserved his decision as to whether the indictment should be quashed. That motion alleged that the seizure of property was unlawful and that as a result he had been deprived of material essential to his defence, and it was on these grounds that the plaintiff sought to have the indictment quashed.
23 On 7 May 2000, Mr O’Meara lodged an application for leave to appeal in the Court of Criminal Appeal ( Ex HCL 11 of the affidavit of Helen Langley sworn 4 September 2000). The plaintiff has appealed the decision of Moore DCJ. At paragraph 5 the plaintiff seeks:
“An order that the indictment be quashed on the ground that any attempt by the Director of Public Prosecutions to exercise the powers and functions of Her Majesty under the Director of Public Prosecutions Act 1986 in respect is inconsistent with s. 7 (2) of the Australia Act 1986, No 142 of 1985 and to the extent of such inconsistency is in breach of the Commonwealth of Australia Constitution Act , 1900.”
24 In paragraphs 6-12 and elsewhere of the Court of Criminal Appeal notice of appeal, the plaintiff seeks that the indictment be quashed, the same order that the plaintiff seeks in these proceedings.
25 In the leave application to the High Court Gummow J stated in relation to the Australia Act:
“The third point directs to the construction and operation of s 7 of the Australia Act . The scope and purpose of that statute and its constitutional foundation are explained in the joint judgment of three members of the Court in Sue v Hill (1999) 73 ALJR 1016; 163 ALR 648 and also in the judgment in that case of Gaudron J. Section 7 states:
‘(1) Her Majesty’s representative in each State shall be the Governor.
(2) Subject to subsections (3 and (4) below, all powers and functions of Her Majesty in respect of a State re exercisable only by the Governor of the State.
(3) Subsection (2) above does not apply in relation to the power to appoint, and the power to terminate the appointment of, the Governor of a State.
(4) While Her Majesty is personally present in a State, Her Majesty is not precluded from exercising any of Her powers and functions in respect of the State that are the subject of subsection (2) above.
(5) The advice to Her Majesty in relation to the exercise of the powers and functions of Her Majesty in respect of a State shall be tendered by the Premier of the State.’
Section 7 appears to be directed to the question of the division of the exercise in respective States of the regal functions and prerogatives between the Sovereign personally and the State Governors. Once the section is understood in that way there is no foundation for an argument based upon s 109 of the Constitution to render invalid as inconsistent provision of the New South Wales statutes involved here.
The relevant powers being exercised there by the Director were statutory powers founded in the exercise by the New South Wales Parliament of its legislative power. The legislative power of the State Parliament is underlined and reinforced by the provisions of ss 2 and 3 of the Australia Act.”
26 His Honour stressed that the arguments which the application would seek to advance on the constitutional issues detailed in his submissions appears to him, at this stage, to have serious difficulties in the path of their acceptance. It was the view of Gummow J that what was important is the potential for further fragmentation of the criminal process and the presence of jurisdiction in the Supreme Court of New South Wales to deal with these matters in the pending litigation in that court. The plaintiff submitted that Gummow J’s judgment on s 7 of the Australia Act was incomplete. Hence, he has appealed that decision.
27 Even if the matters raised by the plaintiff are not the subject of resjudicata and issue estoppel, it is clear this court would not intervene in the plaintiff’s criminal trial in the District Court. The plaintiff has exercised his rights and appealed the decisions of Moore DCJ to the Court of Criminal Appeal. Once Moore DCJ gives judgment in the one outstanding matter, the plaintiff may elect to appeal to the Court of Criminal Appeal. This is the proper course to take to ventilate those issues.
28 It is my view that paragraphs 9, 10, 11 and 21 are an abuse of process. Further those paragraphs disclose no reasonable cause of action against the sixth defendant. The case against the sixth defendant is hopeless. These paragraphs cannot be cured by amendment. Accordingly, those paragraphs of the summons should be dismissed.
29 I make an order that paragraphs 9, 10, 11 and 21 of the summons are dismissed. Costs are discretionary. The normal rule should apply, namely the unsuccessful party should pay the costs. The plaintiff is to pay the sixth defendant’s costs.
30 The orders I make are:
(2) The plaintiff is to pay the sixth defendant’s costs.
(1) Paragraphs 9, 10, 11 and 21 of the summons filed 30 September 1999 are dismissed.*********
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