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)

1. 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.

1. 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.

1. 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 a duty to do so, especially in cases involving fraud on the revenue - on which revenue those courts depend for their very existence and functioning - I am unconvinced that the matter is one of duty as opposed to discretion.

1. Obviously, the Court would not refer a matter unless it thought that the evidence sufficiently disclosed the crime concerned, or that further investigation based on that evidence was very likely to do so. I think the Court is also entitled to take into account other matters, including the utility of a prosecution overall, and the nature of the offence disclosed and its consequences.

1. In this case, I regard the offence disclosed as objectively serious. Courts and regulatory authorities rely on the regularity and propriety of documents created in the course of business and lodged with regulatory authorities. Both (NSW) Evidence Act 1995, s 69 and (CTH) Evidence Act 1995, s 69 give special status to business records, because of their presumed reliability. That is totally undermined, and the potential reliance of a court on such evidence jeopardised, once business records are brought into being other than regularly, as appears to have happened here.

1. Against that, there is the circumstance that ultimately little damage appears to have been done in this case, because the forged document in fact replicated, as I have found, a document that had previously been created. In other words, it was created to replicate something that had previously been held by Mr Caliguri, not to give him rights or powers that he had never had. Whilst this does not deprive the conduct of significance, it somewhat reduces its gravity. In the course of submissions today, there was, albeit very belatedly, some recognition on the part of Mr Caliguri of the gravity of his conduct. I also take into account that it occurred in the heated context of the breakdown of the commercial relationship between the parties.

1. In those circumstances I have, with considerable misgivings, decided not to refer the papers, but I would not want anyone, least of all Mr Caliguri, to be under the impression that his conduct in this respect was anything short of dishonest, immoral and fraudulent.

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