Paycorp Payment Solutions Pty Ltd v Chai (No 3) - [2011] NSWSC 1632

Supreme Court

New South Wales

Medium Neutral Citation: Paycorp Payment Solutions Pty Ltd & Anor v Peter Singyin Chai & Anor (No 3) [2011] NSWSC 1632
Hearing dates: Wednesday, 7 December 2011
Decision date: 07 December 2011
Before: Brereton J
Decision:
Papers not referred to the Attorney-General

Catchwords: PRACTICE AND PROCEDURE - Reference of papers to Attorney-General - evidence adduced in proceedings discloses potential commission of criminal offences by plaintiffs' principal - Court has discretion to refer papers to Attorney-General - in exercising discretion Court considers objective seriousness of offence, utility of any prosecution and consequences of offence - offences in question objectively serious but had little harmful consequence - papers not referred.
Legislation Cited: (NSW) Crimes Act 1900, s 253, 254
(CTH) Corporations Act 2001, s 1308
(NSW) Evidence Act 1995, s 69
(CTH) Evidence Act 1995, s 69
Cases Cited: Paycorp Payment Solutions Pty Ltd & Anor v Peter Singyin Chai & Anor (No 2) [2011] NSWSC 1400
Category: Consequential orders
Parties: Paycorp Payment Solutions Pty Limited (first plaintiff)
Calcom Enterprises Pty Limited (second
plaintiff)
Peter Singyin Chai (first defendant)
PCI Corporation Pty Limited (second
defendant)
John Paul Caliguri
Representation: Counsel:
G A Sirtes SC with J A Arnott (John Paul Caliguri)
Solicitors:
Whittens Lawyers & Consultants (John Paul Caliguri)

File Number(s): 2011/74065

Judgment (ex tempore)

HIS HONOUR: In the judgment that I gave on 22 November 2011 in Paycorp Payment Solutions Pty Ltd & Anor v Peter Singyin Chai & Anor (No 2) [2011] NSWSC 1400 , after substantially finding in favour of the plaintiffs, I indicated that I would afford an opportunity to the plaintiffs' principal, Mr John Paul Caliguri, to show cause why he should not be referred to the Attorney-General in respect of potential offences against (NSW) Crimes Act 1900, s 253 and/or s 254, and/or (CTH) Corporations Act 2001, s 1308, in connection with the fabricated registration.

In the 22 November judgment (at [34]) I found that Mr Caliguri had forged Mr Chai's signature onto a letter, purportedly from the first defendant Mr Chai, containing his resignation as a sole director. He subsequently lodged the forged letter with ASIC. As I observed in that judgment, until evidence was adduced from a forensic handwriting expert, Mr Caliguri was quite content for the Court to be misled as to the authenticity of the resignation, and even once the handwriting evidence came to light, he gave a less than full and frank account of the matter, and at no point indicated any contrition for his actions.

It is not in doubt, nor is it disputed, that where it appears to a civil court in the course of hearing proceedings that the evidence discloses a criminal offence, the Court has a power and a right to refer the papers to the Attorney-General. It is less clear whether, in such circumstances, there is a duty or discretion so to do. While the Commonwealth Courts, in particular the Family Court of Australia, have taken the view that there is…

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.

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Details

Case: [2011] NSWSC 1632
Decision Date: 07 December 2011

CaseChat Overview and Summary

Paycorp Payment Solutions Pty Ltd took legal action against Chai, with the case being heard in the Federal Court of Australia. The central issue in this proceeding was whether the court should refer the case papers to the Attorney-General due to evidence indicating that the plaintiff's principal may have committed criminal offences. The nature of the dispute involved allegations of potential criminal conduct connected to the operations of the plaintiff company.

The court needed to determine if it had the discretion to refer the case papers to the Attorney-General when evidence in the proceedings suggested that criminal offences may have been committed by the plaintiff's principal. The court had to consider the objective seriousness of the alleged offences, the potential utility of any subsequent prosecution, and the consequences of the offences in question. The court weighed these factors to decide whether the referral was warranted.

After carefully considering the evidence and the factors involved, the court determined that although the alleged offences were objectively serious, the actual harmful consequences were minimal. The court found that referring the case papers to the Attorney-General would not serve a significant public interest or utility. Consequently, the court decided not to refer the case papers to the Attorney-General. The case remained in the Federal Court for further proceedings.

Orders