Stec, Tadeusz v Orfanos, Nicholas

[1998] FCA 1647

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 128 of 1998

BETWEEN:

TADEUSZ STEC
APPLICANT

AND:

NICHOLAS ORFANOS
FIRST RESPONDENT

ANDREW CONROY
SECOND RESPONDENT

TADEUSZ RYBAK
THIRD RESPONDENT

PETER GEORGOPOLOS
FOURTH RESPONDENT

ELECTRO RESEARCH INTERNATIONAL PTY LTD
FIFTH RESPONDENT

JUDGE:	MANSFIELD J
DATE:	8 DECEMBER 1998
PLACE:	ADELAIDE

REASONS FOR DECISION

HIS HONOUR: On 12 October 1998, von Doussa J dismissed an application by the appellant to set aside a bankruptcy notice served upon him on 3 July 1997. His Honour also determined that the appellant did not have a counterclaim, set-off or cross‑demand of the kind referred to in section 40(1)(g) of the Bankruptcy Act 1966.  The bankruptcy notice had been issued on the application of the present respondents in respect of a debt of $26,289.07, based upon an order made by Olsson J in the Supreme Court of South Australia on 12 December 1996, to which reference is made in the reasons for judgment of von Doussa J.  That order of Olsson J set aside the stay previously granted in that Court of an order of Master Kelly made on 8 February 1995 with respect to those costs.  It effectively restored Master Kelly’s order.  Those orders were made in Supreme Court action 2045 of 1994. 

On 2 November 1998, the appellant appealed from the decision of von Doussa J.  That appeal is listed for hearing in the next sittings of the Full Court of this court in February or early March of 1999.  There are, however, three outstanding interlocutory issues which the parties have raised and which need to be dealt with before that appeal is heard.

The first is a notice of motion of 27 November 1998, initially filed by the appellant unsupported by any affidavit but now supported by the affidavits of the appellant, and in which the appellant in effect seeks orders, first, directing that the Registrar of this court direct the Director of Public Prosecutions for the Commonwealth to investigate certain alleged contraventions of the Crimes Act 1914 (Cth) by the first respondent, by the solicitors for the respondents, and by at least one other person identified in his affidavits, and to make the results of those investigations available to the appellant, and secondly, for an order adjourning the hearing of the appeal until the Director of Public Prosecutions has complied with that order and the appellant has had an opportunity to consider the results of those investigations.

The second outstanding matter is an oral application by the appellant that the present solicitors and counsel for the respondents should be disqualified from acting for the respondents on the appeal. 

The third outstanding interlocutory matter is a notice of motion by the respondents for an order for security for costs to be provided by the appellant in relation to the appeal, and that the appeal be stayed until any security so ordered has been provided.

I have today heard argument on the first and second of those two issues, and I propose to give reasons with respect to them.

I have considered the material provided by the appellant in his two affidavits of 4 and 7 December 1998, and the additional documentary material which he has tendered in relation to the motion of 27 November 1998. He has made significant allegations in those affidavits, and by reference to material annexed to those affidavits, that the first respondent, the solicitors for the respondents in the Supreme Court proceedings and his own solicitor for a time in the Supreme Court proceedings, have each engaged in criminal conduct in various ways. It is not necessary to spell out those allegations in these reasons. They are said to give rise to breaches of ss 36, 63, 67 and 90B of the Crimes Act 1914.

The appellant has explained in the course of oral submissions today that he understands from his inquiries with the Director of Public Prosecutions that the Director is presently not disposed to investigate his allegations while there are matters before the Court touching on them.  It is in that context that he has brought the present motion.  I do not propose to make the orders sought on that notice of motion. 

There are a number of reasons why I do not propose to do so. 

The first is that I do not consider that I have power to order the Director of Public Prosecutions to carry out an investigation into any particular matter.  Nor do I have power to direct the Director of Public Prosecutions to make the results of any investigation which he carries out available to any person, whether that be the appellant or anyone else.  The functions and responsibilities of the Director of Public Prosecutions are spelled out in the Director of Public Prosecutions Act 1983 (Cth).  There is nothing in that Act, or in the Federal Court of Australia Act 1976 (Cth), which gives me those powers. I invited the appellant to identify any other source of power to make the orders which he sought, but understandably - and I appreciate, frankly, given his lack of legal training - he acknowledged that he was unable to do so.

Even if the court may refer matters to the Director of Public Prosecutions, rather than direct the Director of Public Prosecutions to investigate a matter or matters, I do not think that that is a step which could usefully be undertaken in the present proceedings.  That is because the Court has no power to direct the Director of Public Prosecutions to make available the result of inquiries to the appellant or to anyone else.  That is entirely a matter for the Director of Public Prosecutions.

In addition, the time which would be taken in the Director deciding to consider the material provided to him by the appellant, to investigate it if he decided to investigate it, to assess it and then to determine whether to take any action with respect to it in the nature of a prosecution, would mean that the appeal would be put off for a considerable period of time.  There is a substantial public interest in matters in this court being disposed of in an expeditious way.  There is no special reason to treat an investigation by the Director as a necessary precondition to this proceeding.  There is no reason why the public interest should not be given due weight.  The conduct of any prosecution is a matter unrelated to the present appeal, albeit concerning potentially the same facts.  The appellant’s purpose behind the motion really acknowledges that he wishes the investigation as an evidence gathering process for the purposes of this appeal.  That does not appear to be one of the functions of the Director under the Director of Public Prosecutions Act 1983.

It is also of significance to note that the issue as to the production of falsified documents or the procuring of orders by fraud is not a matter before the court.  They are the sort of issues which the appellant wishes to have investigated.  The reasons for decision of von Doussa J identify ultimately the grounds upon which the application of the appellant went forward.  The relevant ground is paragraph 15 appearing in the reasons at the bottom of page 6 and which reads:

“That the Bankruptcy Notice issued on a base of falsified documents and order entered by fraud is invalid, defective, and will be set aside.”

However, as the reasons then record, the only point sought to be raised under that paragraph was that the order of Judge Kelly dated 8 February 1995 was not attached to the bankruptcy notice.  That is the only issue which the reasons for judgment address (reasons at pages 7 and 11). 

Accordingly, I do not consider it appropriate to accede to the application, and I dismiss that notice of motion.

I turn to consider the second of those two matters argued today, namely that the present solicitors and counsel for the third, fourth and fifth respondents on the appeal should be disqualified from appearing in that capacity upon the appeal.  The first and second respondents do not intend to appear on the appeal.  It is convenient to refer to the third, fourth and fifth respondents as “the respondents” hereafter.

Again I have considered the affidavit material and the written submissions provided by the appellant, together with the additional documentation which he has provided, and his oral submissions today.  There are several reasons why he contends that those solicitors and counsel should be disqualified.  The first is that he contends that instructions have not in fact been received from the respondents.  I am not satisfied that it is the right of an opposing party to go behind the assertion of a legal practitioner for the opposing party that instructions have been received.  If ultimately it transpires that instructions have not been received, then those solicitors have defended the proceeding without instructions and are personally liable for costs.  But even if I am prepared to entertain the appellant's contentions, I am not satisfied that I should make the order sought.  The appellant asserts that the appearance filed on 1 December 1998 has the incorrect addresses of the respondents Georgopolos and Electro Research International Pty Ltd.  I am not satisfied that that fact is made out.  In respect of the corporate respondent, he has directed me to an order made in the Supreme Court of South Australia on 14 August 1995 which indicates a different address for that corporate respondent.  It does not follow that the address of the corporate respondent has not changed.  Even if the addresses were incorrectly stated, I would not infer from that fact that those persons did not give the instructions to the solicitors which the appearance represents that they have received.

The second matter is that the appellant complains, in particular relying on paragraph 60 of his affidavit of 4 December 1998, that in June and July 1992 the present solicitors for the respondents acted for him in litigation against the University of South Australia.  He has exhibited to that affidavit a letter of 5 July 1991 from the Association of Professional Engineers and Scientists, Australia, which he deposes to having provided to those solicitors for the purpose of acting for him in that matter, and which he asserts was produced by those solicitors when acting against him in the Supreme Court.  I do not think that those circumstances preclude the present solicitors for the respondents from acting on this appeal.  It is not necessary to address the question of whether they should or should not have acted previously in the various Supreme Court proceedings or indeed in the proceedings before von Doussa J.  I do not want to be taken as indicating in any way that they should not have done so, but simply to indicate that for the present purposes it is unnecessary even to address that topic.  The present issue is whether they should be disqualified from acting for those respondents on this appeal.  It is necessary for the appellant to make out not simply that those solicitors previously acted for him, but they acted for him in circumstances in which they obtained from him confidential information, which information might conceivably be of significance and might conceivably be used adversely to him in relation to the conduct of the appeal.  They acted for him, as the material shows, in a claim against the University of Adelaide for his dismissal.  I am unable to perceive any circumstance at all in which the material then made available might in any way impinge upon the way in which the solicitors now acting for the respondents would conduct the appeal, based as it will be upon the record of proceedings before von Doussa J and his Honour's decision and reasons for that decision.  It is therefore unnecessary to consider whether the fact that those solicitors have acted in the proceedings generally in the Supreme Court and before von Doussa J in this court up to now, without any order of the nature now sought having been made against them, provides a further reason why this particular ground should be rejected.  I am simply not satisfied that there is a relevant conflict of interest based on the material upon which the appellant relies.

The third of the grounds upon which the appellant relies is that deposed to in paragraph 59 of his affidavit of 4 December 1998, namely that the solicitors presently acting for the respondents in July 1998 acted against them in respect of a debt recovery matter.  There is evidence which tends to confirm that.  I do not know the fate of that debt recovery matter, including whether it has been completed.  I do not know if the issue has been resolved.  It is sufficient to make those points to indicate that there is no material from which I could find that there is presently a conflict of interest on the part of the solicitors in acting for the respondents to the appeal in the light of that earlier action.  In my judgment, it is not really for the appellant to raise such matters of concern.  They are for the respondents and their solicitors.  But even if he is entitled to raise them, I do not think that his complaint is made out.

Finally, the appellant raised his concern as to the entitlement of those respondents to give instructions to those solicitors in any event.  That is a matter which has been ventilated at length in the Supreme Court proceedings and has, as von Doussa J indicated in his reasons, been resolved adversely to the appellant.  I need do no more than refer to his Honour's reasons at pages 5 to 6.  The present situation is that the solicitors have filed an appearance on behalf of the respondents.  They have filed also an affidavit from a director of the corporate respondent, indicating that the corporate respondent, through its directors, has appointed them to act as solicitors for the company on the appeal.  I do not propose to go behind that material.

Accordingly, I do not propose to make the order sought, disqualifying the solicitors for the respondents from appearing for the respondents on this appeal.

I order that the costs of today be the costs of the respondents Tadeusz Riebach, Peter Georgopolos and Electro Research International Pty Ltd in the cause. 

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield

Associate:

Dated:             

Applicant appeared in person
Counsel for the Respondent:	Mr D G Riggall
Solicitor for the Respondent:	Knox & Hargrave
Date of Hearing:	8 December 1998
Date of Judgment:	8 December 1998