State of Western Australia v Crimmins & Anor
[2004] WADC 162
•30 JULY 2004
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- CRIMMINS & ANOR [2004] WADC 162
CORAM: WISBEY DCJ
HEARD: 2 JUNE 2004
DELIVERED : 30 JULY 2004
FILE NO/S: CIVO 63 of 1998
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
LYNETTE BERYL CRIMMINS
First ClaimantJOANNE RODDAN
Second Claimant
Catchwords:
Practice and procedure - Interpleader relief - Jurisdiction of District Court to grant - Dispute over ownership of bangles seized by police - Burden of proof
Legislation:
District Court of Western Australia Act 1969 s 50, s 52 and s 87
Order 17 Rules of Supreme Court
Result:
Order that property be delivered to First Claimant
Representation:
Counsel:
Applicant: Ms K Foley
First Claimant : In person
Second Claimant : Mr T Stephenson
Solicitors:
Applicant: State Solicitor
First Claimant : Not applicable
Second Claimant : Not applicable
Case(s) referred to in judgment(s):
Luckins v Highway Motel (Carnarvon) Pty Ltd (1975) 133 CLR 164
Case(s) also cited:
Ex parte Mersey Docks and Harbour Board [1899] 1 QB 546
Richard v Jenkins (1887) 18 QBD 451
State of Western Australia v Amidzic & Anor, unreported; DCt of WA; Library No D970160; 16 May 1997
State of Western Australia v Hawley [2001] WADC 255
WISBEY DCJ: The applicant filed an originating summons pursuant to O 17, r 1(a) of the Rules of the Supreme Court 1971 (WA) seeking interpleader relief in respect of six gold bangles seized by the police from the second claimant on 12 August 1993. The second claimant asserts that the bangles were given to her by Lindsay Gordon Roddan (Roddan) as a birthday present in July or August 1993. The first claimant, Lynette Beryl Crimmins, asserts that she purchased the bangles from Roddan, together with two heavier weighted gold bracelets, in December 1992.
The resolution of the dispute between the first and second claimants is dependant upon the District Court having jurisdiction to entertain interpleader relief.
In Cairns Australian Civil Procedure Ch 9, p 266 it is stated:
"Interpleader is a procedure, adopted from the old common law and Chancery procedure, by which a party that is faced with competing claims for the same debt or property may avoid liability by forcing the claimants to resolve the dispute among themselves. An interpleader order directs the various claimants to settle, or litigate, the claims amongst themselves. This procedure is open only where the party interpleading claims no property in the subject matter of the dispute, other than for costs, and is willing to pay the money (if the subject of the dispute is money) into court; or will dispose of the goods (if the subject of the dispute is goods) as the court directs … Before the Judicature Act the interpleader procedure was available both at common law and in equity but only limited relief was available. In the common law courts, the Interpleader Act 1931(UK) and English Common Law Procedure Act 1860 made available interpleader procedure where the applicant for an interpleader order had already been sued. There was no relief by way of interpleader before the issue of proceedings. Formal demands by competing claimants did not, under the statute, provide a ground for an interpleader order. In Chancery, the interpleader procedure was open only if the claims of the claimants had a common origin. These narrow provisions have been replaced by corresponding, but appreciably wider, procedures in the rules of court. A summons seeking interpleader relief is therefore procedural and is a means of bringing the claimants before the court to have their respective claims adjudicated upon. It follows that it is necessary that there be jurisdiction within the court to entertain the dispute between the claimants and that the court's rules of procedure facilitate an interpleader proceeding."
The jurisdiction of the District Court of Western Australia is conferred by statute, and its civil jurisdiction is derived from s 50 of the District Court of Western Australia Act 1969 which provides inter alia that subject to s 51 (the monetary limitation) the Court has the same jurisdiction to hear and determine and exercise all the powers and authority that the Supreme Court has or may exercise from time to time in relation to:
"(a)all personal actions, other than those of the kind referred to in subsection (2), where the amount, value or damages sought to be recovered is not more than $250,000, whether on the original claim or demand or a balance after allowing payment on account, or the amount of any set‑off admitted by the plaintiff."
The Act does not define the term "personal actions".
In Halsbury's Laws of England 3rd ed, vol 1, at par 41, it is stated that personal actions may be divided into actions arising out of contract (ex contractu) and actions arising out of torts (ex delicto). Clearly that includes actions in detinue, which categorises the dispute between the claimants.
Section 52 of the District Court of Western Australia Act 1969 provides generally that the practice and procedure of the Court as a court of civil jurisdiction shall be the same as the practice and procedure of the Supreme Court.
Section 87 of the Act provides that the practice and procedure of the Court shall be governed by the Rules of Court, and until provision is made by Rules of Court, or where no special condition is contained in the Rules of Court, the Rules of Court of the Supreme Court for the time being in force, so far as applicable, apply to the District Court.
Order 17 of the Rules of the Supreme Court sets out the procedure for instigating interpleader proceedings in the Supreme Court of Western Australia, and the matter not having been specifically addressed in the District Court Rules O 17 applies to the District Court. That such is the position was accepted by senior counsel before the High Court in Luckins v Highway Motel (Carnarvon) Pty Ltd (1975) 133 CLR 164 at 175 per Gibbs J.
The dispute between the claimants
As I have already indicated the bangles were seized by the police from the second claimant on 12 August 1993, the first claimant having advised them that they were stolen. As the bangles, prior to their seizure, were in the possession of the second claimant, the first claimant carries the burden of establishing ownership on the balance of probabilities.
In an affidavit sworn 6 October 2003 the first claimant states that she purchased eight gold bangles from Roddan in December 1992, being two heavyweight twisted 9 carat yellow gold and six lighter weight twisted 9 carat yellow gold bangles. She paid Roddan $500 for the six light weight bangles and $400 for the two heavyweight bangles. She stated that she wore the bangles for approximately three weeks before giving the six light weight bangles to Roddan at his request to show clients. Thereafter in spite of requests to do so he failed to return them, and she did not see them again until she attended Roddan's bail application on 12 August 1993 when she observed them being worn by the second claimant and told Detective Sergeant Gwilliam they belonged to her. She denied advising Detective Schubert that the six bangles had previously been stolen by Roddan from an Airport showcase.
During her evidence she denied having any discussions with Detective Schubert concerning the bangles, but confirmed that she told Detective Sergeant Gwilliam that she owned the bangles being worn by the second claimant. When her attention was drawn to the fact that both in her police statement and in a letter to the Commissioner of Police she had described the bangles as being twisted 9 carat gold, she stated that they had that appearance when worn together. She accepted, however, that they were scrolled not twisted gold.
Detective Sergeant Gwilliam both in an affidavit filed in these proceedings, and in oral evidence, stated that at the material time he was in charge of the Argyle Diamond inquiry, and that on 12 August 1993 the first claimant told him that the bangles being worn by the second claimant were bangles that she purchased from Roddan.
Detective Paul Stefan Schubert and Inspector Ronald Clarence Randall were also involved in the Argyle Diamond inquiry. Detective Schubert's recollection was that the first claimant told him that the bangles were part of some jewellery stolen from an airport display case.
Former Detective Sergeant Jeffrey Howard Noye was also involved in the Argyle Diamond inquiry, and his affidavit tends to support the view that the first claimant indicated that the bangles were part of the jewellery which had been stolen from a display case. It must be said, however, that in the context of the enquiries that were then being undertaken, the origin and ownership of the six bangles would have been of little consequence to the police. Also in the context in which the seizure occurred, there is clear room for misunderstanding.
In the result I prefer the evidence of Detective Sergeant Gwilliam as to what the first claimant said concerning the bangles at the material time.
Dianne Lorraine Candido, a medical receptionist, and long time friend of the first claimant, gave evidence that she could recall seeing the first claimant wear what she believed to be the disputed bangles in 1991/92. She stated that she was first asked to recall the matter in about 1998 some six or seven years subsequent to her having seen the first claimant wearing the bangles. Her recollection was that the first claimant always wore them. I believe that she was truthful as to her recollection, but in view of the time that has elapsed, standing alone it is not a safe basis for a finding of fact.
The second claimant stated that Roddan gave the bracelets to her in 1993, a couple of months before her birthday on 13 August, and there is no reason to suppose other than that is the position. Her evidence does little more than corroborate Roddan's evidence that he gave the bracelets to her, but is neutral on the question of ownership.
The evidence in support of the second claimant's position is that of Roddan who in his affidavit sworn 3 July 2001 stated that between 1990 and 1993 he sold various items of jewellery including "two or three twisted gold bangles" to the first claimant. The bangles the subject of the dispute were part of a consignment which he purchased in about June 1993 from an Eastern State jeweller, Eckstein. He described them as round with scrolling on them, and not twisted. The bangles that he sold to the first complainant were twisted. He denied in evidence that he had sold the disputed bangles to the first complainant.
It is necessary on the material to which I have referred, to resolve this dispute.
Mrs Crimmins gave her evidence in a clear and forthright manner and I had no reason to doubt her veracity. On the contrary, I do not accept the evidence of Roddan disputing the sale of the bangles to Mrs Crimmins. In the result the first claimant has discharged the burden of proof upon her as to ownership of the bangles.
I direct that the applicant do at the expiration of 28 days from the date hereof deliver the six yellow metal bangles referred to in the originating summons to the first claimant.
The applicant placed itself in the position of having to commence interpleader proceedings because the police essentially intervened in what was a civil dispute. I am not therefore prepared to order that its costs be paid by either claimant.
Having regard to the conduct of the parties and the general history of this litigation I am not in the circumstances prepared to make any order for costs.
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