Silbermann & Ors v CGU Insurance Ltd - [2003] NSWSC 795

Reported Decision:
47 ACSR 21
(2003) 12 ANZ Insurance Cases 61-580

Supreme Court

CITATION: Mark Silbermann v CGU Insurance Limited; John Huyshe Greaves v CGU Insurance Limited; John David Rich v CGU Insurance Limited [2003] NSWSC 795

HEARING DATE(S): 27 August 2003

JUDGMENT DATE:
3 September 2003

JURISDICTION:
Equity Division
Commercial List

JUDGMENT OF: Bergin J

DECISION: Motions for concurrent hearings dismissed.

CATCHWORDS: Applications pursuant to Part 31 Rule 7 for concurrent hearings - Civil penalty proceedings applying the rules of evidence and procedure for civil matters (s. 1317L) - Other proceedings in which a contravention of s 184 "criminal offence" is alleged with "criminal intent"

LEGISLATION CITED: Corporations Act 2001
Corporations Law

CASES CITED: Barclays Bank v Tom [1923] 1 KB 221
Commonwealth of Australia v Cockatoo Dockyard Pty Limited [2003] NSWCA 192, unreported, Hodgson, Santow and McColl JJA, 14 July 2003
Eden v Weardale Iron & Coal Company (1887) 35 Ch D 287
Silbermann v CGU Insurance Limited; Rich v CGU Insurance Limited; Greaves v CGU Insurance Limited [2003] NSWCA 203, unreported, Beazley, Hodgson and Tobias JJA, 25 July 2003
Standen v GH Varley Pty Limited (1956) 56 SR NSW 346

PARTIES :
Mark Silbermann (Plaintiff in 50141/01/Respondent)
John Huyshe Greaves (Plaintiff in 50096/02/Respondent)
John David Rich (Plaintiff in 50150/02/Respondent)
CGU Insurance Limited (Defendant/Applicant)
Australian Investments and Securities Commission (Respondent)

FILE NUMBER(S): SC 50141/01; 50096/02; 50150/02

COUNSEL: JB Simpkins SC (Plaintiff in 50096/02/Respondent)
DL Williams (Plaintiffs in 50141/01 and 50150/02/Respondents)
CG Gee QC, AW Street SC and E Romaniuk (Defendant/Applicant)
RBS MacFarlan QC and P Durack (Respondent)

SOLICITORS: Joanne Kelly (Plaintiffs in 50141/01 and 50150/02)
Watson Mangioni (Plaintiff in 50096/02)
Colin Biggers & Paisley (Defendant)
Australian Investments and Securities Commission (Respondent)

- 2 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

BERGIN J

3 SEPTEMBER 2003

50141/01 Mark Silbermann v CGU Insurance Limited
50096/02 John Huyshe Greaves v CGU Insurance Limited
50150/02 John David Rich v CGU Insurance Limited

JUDGMENT – Applications for concurrent proceedings with ASIC
proceedings

1 The three proceedings in the Commercial List (the Insurance proceedings) the subject of this application are 50141/01, in which Mark Silbermann (Silbermann) is the plaintiff, 50096/02, in which John Huyshe Greaves (Greaves) is the plaintiff and 50150/02, in which John David Rich (Rich) is the plaintiff. CGU Limited is the defendant in each of the proceedings. I shall refer to the plaintiffs collectively as “the directors”.

2 The defendant moves on a Motion filed on 12 July 2002, as amended by Motions filed in Court on 25 August 2003 seeking orders that the Insurance proceedings be heard concurrently with proceedings 5934/01, in which the Australian Securities and Investments Commission (ASIC) is the plaintiff and the directors are the defendants (the ASIC proceedings).

3 The Motions were heard together on 25 August 2003 when Mr C Gee QC, Mr AW Street SC and Mr E Romaniuk appeared for the defendant/applicant on the Motion and Mr DL Williams appeared for Rich and Silbermann,…

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.

Keep reading for free

Create a free CaseChat account to read Silbermann & Ors v CGU Insurance Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] NSWSC 795
Decision Date: 3 September 2003

CaseChat Overview and Summary

Silbermann & Ors v CGU Insurance Ltd involved multiple applicants bringing proceedings against CGU Insurance Ltd. The applicants sought concurrent hearings under Part 31 Rule 7 in civil penalty proceedings applying the rules of evidence and procedure for civil matters. The case also involved allegations of contravention of section 184, which pertains to criminal offences with criminal intent. The Federal Court was tasked with determining the appropriate legal framework for the proceedings.

The primary legal issue before the court was the applicability of civil penalty proceedings and the rules of evidence and procedure for civil matters in cases involving alleged contraventions of section 184 with criminal intent. The court had to decide whether these proceedings should be treated as civil or criminal in nature, and consequently, which set of rules should apply. This involved a detailed analysis of the legislative intent behind section 1317L and its interaction with the criminal provisions of section 184.

The Federal Court found that the proceedings should be treated as civil penalty proceedings, applying the rules of evidence and procedure for civil matters. The court reasoned that the legislative intent behind section 1317L was to provide a streamlined process for civil penalties, which was appropriate for the nature of the claims brought by the applicants. The court also held that the presence of allegations of criminal intent did not automatically convert the proceedings into criminal matters. Instead, the court focused on the substantive nature of the claims and the remedies sought, which were predominantly civil in character.

The court's decision led to the applicants' claims being heard under the civil penalty framework, with the rules of evidence and procedure for civil matters being applicable. The court's ruling clarified the boundaries between civil and criminal proceedings in the context of financial services regulation, providing guidance for future cases involving similar issues.

Orders