concurrence of Luxmoore LJ) in Dumbell v Roberts

Court of Appeal (NSW)|1990-09-04|Before: Priestley JA, Meagher JA, Mason J, Maxwell J

DAEMAR; CORPORATE AFFAIRS COMMISSION vy CORPORATE AFFAIRS COMMISSION

PRIESTLEY, MEAGHER and HANDLEY JJA 24 July, 4 September 1990

The appeals arose from two separate proceedings wherein the plaintiff's summons sought to quash certain warrants for his arrest. First summons set aside on defendant's motion purportedly under Supreme Court Rules Part 11 R8 - true ground for setting aside was non-joinder of parties - trial judge failed to apply the relevant rules being Pt8 R7 and R8 - appeal upheld. Second summons then taken out - defendant appeals from order quashing warrants - trial judge failed to take any evidence appeal upheld. Appropriate orders where warrants spent considered. Further motion to adduce fresh evidence after hearing of appeals considered and dismissed.

Meagher JA These appeals add two more chapters in the saga of the hapless Mr Daemar's entanglements with the law. In 1983 a Mr Crellin laid an information befGre a Mr Sandilands, a Justice, who authorized the issue of a warrant for the arrest of Mr Daemar. The charge against him, purportedly under s178B and s351 of the Crimes Act, was that he aided and abetted the commission of a misdemeanour by a company called Quik Foods Pty Limited which obtained chattels from another company by passing to it a cheque which was not met on presentation. On the facts, the charge was entirely misconceived as property in the chattels had passed before the cheque was handed over. More than that, Mr Daemar should never have been arrested. At most the Justice should have issued a summons and not a warrant for arrest. As Goddard LJ said (with the concurrence of Luxmoore LJ) in Dumbell v Roberts (1944) 1 All ER 326 at 332: "In giving this power of arrest parliament obviously contemplated that it was only to be used if it was necessary to ensure the suspect being brought before the court. If his name and address could be ascertained the police could proceed by summons, which is the proper course to take in the case of misdemeanours or summary offences unless, where there is power to arrest, there is reason to believe a summons would not be effectual."

Mr Daemar took out a summons which came on for hearing before Yeldham J. His Honour, with considerable reluctance, refused injunctive and declaratory relief and declined to quash the warrant. His Honour applied the reasoning of Mason J in Sankey v Whitlam 142 CLR 1 that normally committal proceedings should be allowed to take their course. His Honour also held that, in case Mr Daemar sought to sue either or both Mr Crellin or Mr Sandilands for wrongful arrest or false imprisonment, the fact that the warrant was not quashed would not in law impede such an action. Subsequent authority has supported this view: Marriner v Smorgon (1989) VR 485 at 491, 507 and (1989) 167 CLR 368.

Fate struck Mr Daemar again when on 18 January 1989 he was arrested by two policemen who had a warrant in that behalf. It had been issued by a Justice at the behest of the Corporate Affairs Commission, whose representative had sworn an

information that Mr Daemar had issued a prospectus contrary to the provisions of s103(3) of the Companies Code (NSW). Mr Daemar therefore took out a summons to challenge the propriety of the warrant. The only defendant named in the summons was the Corporate Affairs Commission of New South Wales. The sumrnons came on for hearing before Maxwell J on 21 April 1989, when both parties were legally represented. Counsel for the defendant took out a motion, purportedly under Pt11 rule 8 of the Supreme Court Rules, to dismiss the summons. Counsel for Mr Daemar, perhaps surprisingly, waived his right to proper notice of the motion and the matter was dealt with by his Honour. His Honour set the summons aside with costs. His Honour's reasons, which are brief,

were: "The defendant by Notice of Motion pursuant to Pt11 r8 and dated21 April, 1989 seeks in relation to the plaintiffs summons a declaration that the Court in the exercise of its discretion should refuse to exercise jurisdiction in the proceedings or alternatively set aside the plaintiff's summons. I arn informed that the Clerk of the Local Court, Liverpool Street, Sydney has not been served with a copy of the summons. I am also informed that Mr Pike SM, of the Local Court at Castlereagh Street has not been served with a copy of the summons. In all the circumstances I order that the plaintiff's summons be set aside and I order the plaintiff to pay the defendant's costs."

The Clerk of the Court at Liverpool Street was the justice who had issued the warrant, and Mr Pike SM the magistrate who had refused to quash it.

Mr Daemar seeks leave to appeal from his Honour's order. In my view leave to appeal should be granted and the appeal upheld. I say that for these reasons. In the first place, the decision was indefensible. The ground for striking out was the non-joinder of defendants; but the motion was taken out under Pt11 r8, which does not address that subject matter. The Rule is in the following form:

"(11.8) Setting aside originating process, etc 8 (1) The Court may, on application made by a defendant to any originating process on notice of motion filed within the time fixed by subrule (2), by order -

(b) set aside the service of the originating process on the defendant;

(d) discharge any order giving leave to serve the originating process outside the State or confirming service of the originating process outside the State;

(e) discharge any order extending the validity for service of the originating process;

(i) property seized, or threatened with seizure, in the proceedings; or

(ii) property subject to an order restraining its disposition or disposal or in relation to which such an order is sought;

(g) declare that the Court has no jurisdiction over the defendant in respect of the subject matter of the proceedings;

(h) decline in its discretion to exercise its jurisdiction in the proceedings;

(j) grant such other relief as it thinks appropriate.

(b) shall bear a note "The defendant's address for service is" and state the address;

WREMAR; CORPORATE AFFAIRS COMMISSION v CORPORATE AFFAIRS COMMISSION (Meagher JA) (Meagher JA)

(3) The making of an application under subrule (1) shall not be treated as a voluntary submission to the jurisdiction of the Court."

It forms a portion of Pt11, which deals with appearances. It is intended to deal with, and only with, cases where a nominated defendant seeks to dispute the Court's jurisdiction, because for example the Court's process has not been properly served or because the defendant is not amenable to the Court's jurisdiction being, for example a foreign sovereign or foreign ambassador. The relevant Rules dealing with non-joinder are R7 and R8 of Pt8, which are in the following form:

(8.7) Misjoinder and non-joinder of parties 7 (1) Proceedings shall not be defeated by reason of the misjoinder of a party or the non-joinder of any person as a party.

(2) The Court may in any proceedings determine the issues or questions in dispute so far as they affect the rights and interests of the parties

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon,

the Court, on application by him or by any party or of its own motion, may order that he be added as a party and make orders for the further conduct of the proceedings.

(2) A person shall not be added as a plaintiff without his consent.

(3) Without limiting the generality of subrule (1), where a person not a party to proceedings for possession of land is in possession (by himself or by a tenant) of the whole or any part of the land, the Court, on application by him, may order that he be added as a defendant and make orders for the further conduct of the proceedings."

These rules display a manifest intention that proceedings be not dismissed for non-joinder except as a last resort. If his Honour had applied the relevant Rules and not an entirely irrelevant one, he would have come to the opposite conclusion to that at which he arrived. The second reason is that if leave be refused Mr

Daemar will be saddled with a totally unjustifiable order to pay the Commission's costs. The third is that Mr Daemar was still on bail at the time of the order, the

The appropriate orders on this appeal in my view are simply to grant leave to appeal and to set aside the order that Mr Daemar pay the Commission's costs. No other order is required, as the charges under the Companies Code have all been dealt with. The Commission should pay Mr Daemar's costs both before Maxwell J and on appeal.

Having been repelled by Maxwell J, Mr Daemar then took out a second summons, joining this time as defendants the Commission, Michael McTegg, the Clerk of the Court at Liverpool Street, and Mr Pike SM. The summons came on for hearing before Yeldham J on 9 June 1989. What happened on that day is set out in an affidavit sworn by Miss Ngai, a solicitor in the Commission's employ. The accuracy of her account was not challenged by Mr Daemar. As slightly amended, it reads as follows:

"Daemar ".... My application today is to dismiss the warrant for arrest... the defendants want an adjournment..."

Ngai ".... That is not strictly speaking correct.... The defendants seek a timetable to file three (3) affidavits in this matter... that of Maria Hayter, Frank Christensen and Ted Andrews, Daemar's trustee-in-bankruptcy..."

Yeldham J ".... Why did the matter proceed by way of warrant..."

Ngai "...1 was not involved in that aspect hence I am not one hundred percent sure but I am instructed that there were a number of reasons influencing the defendants, in that:

There was a phone call from Frank Christensen of Walker Wayland expressing concern as to the possibility of the plaintiff leaving Australia never to return;

That the plaintiff has not ties nor assets in Australia and is current undischarged bankrupt.

Despite numerous attempts by his trustee-in-bankruptcy to obtain his passport he has not handed it in..."

Yeldham J "....It is my view that proceedings should start by way of summons and not warrants... if the claimant wanted to file any affidavits it has (sic) ample time to do so... I will dismiss the warrants... ""

Miss Ngai deposed to a further colloquy to the same effect. His Honour was asked to supply reasons for his decision, but declined to do so. The Commission seeks to appeal against his Honour's order.

A preliminary question arose as to whether an appeal lay as of right or leave was required. In my view no leave is required. The only matter before the Court was the summons to quash the warrant; that was dealt with on a final basis; nothing further could be done in those proceedings; the orders made were therefore final and not interlocutory.

The next question is whether the appeal should succeed. Unhappily, in my view, it is all too clear that it should. His Honour disposed of the matter without hearing any evidence at all, either from the plaintiff or from the defendants. He did not embark on any enquiry, as he should have, as to whether the warrant should have issued. He denied the Commission the opportunity it sought to prove that exceptional circumstances existed which would have justified issuing a warrant rather than a summons, and he should have given his reasons.

Amore delicate question is what orders should be made. It was suggested that no order should be made, on the grounds of lack of utility. However, one powerful consideration militates against this course. If Mr Daemar sues for wrongful arrest the decision of Yeldham J, unless reversed, could constitute an estoppel in his favour to which he is not entitled. However, except for the question of costs there is no utility in remitting the proceedings to the Common Law Division for determination on the merits. The warrant is long since spent. The criminal charges were the subject of fresh proceedings commenced by summons which were concluded on 17 August, 1989 by convictions following pleas of guilty in respect of 5 charges, and by the dismissal of another 3 charges as a result of the prosecution offering no evidence. As I have said the only question raised by the Summons which is still alive is the question of costs (see Elders Pastoral Ltd v Bank of New Zealand (1990) 1 WLR 1090), which this Court is not in a position to determine.

In this appeal I therefore think the following orders should be made:

Order that the respondent Mr Daemar pay the appellant's costs of the appeal.

Order the the respondent have a Certificate under the Suitors' Fund Act.

WRAEMAR; CORPORATE AFFAIRS COMMISSION v CORPORATE AFFAIRS COMMISSION (Handley JA) (Handley JA)

Since the hearing of these appeals, an application was made on motion by Mr Daemar to adduce fresh evidence. That alleged fresh evidence consisted of the draft affidavits prepared by the Commission for the hearing before Yeldham J, together with evidence allegedly demonstrating the falsity of its contents. This application was obviously doomed to failure for many reasons, one of which was that the material was irrelevant to the only issue before us, which was whether Yeldham J had properly heard the Summons. The motion must therefore be dismissed with costs.

Leave to appeal from decision of Maxwell J granted.

The respondent Corporate Affairs Commission to pay Mr Daemar's

. Order that the respondent Mr Daemar pay the appellant's costs of the appeal from Yeldham J.

Order that the respondent Mr Daemar have a certificate under the

Suitors' Fund Act. 9. Motion to adduce fresh evidence dismissed with costs.

The Appellant/Respondent appeared in person Counsel for the Respondent/Appellant: A BENNETT

Solicitors for the Respondent/Appellant: MM MARTIN, SOLICITOR FOR THE COMMISSION

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