Global Custodians Limited v Mesh

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1 HIS HONOUR: These proceedings were commenced by summons filed 22 May 1998 whereby the plaintiff sought a declaration that the trust deed of the Estate Mortgage Fighting Trust had not been validly amended and for orders that it examine the books and records of the Trust. 2 The prime submission of the plaintiff, now the first plaintiff, was that the trustees collected moneys from the public to maintain litigation with an aim to recover moneys from the failed Estate Mortgage Trusts, but that the trust deed was invalidly amended to allow moneys to be paid as expenses to the third defendant and others to travel to and from India and that, in fact, considerable moneys had been used for this purpose. 3 The defendants deny that the first plaintiff has standing. The first plaintiff claims that it has an assignment from the people who are now the other plaintiffs, Mr and Mrs Speight and Mr and Mrs Greenlees who claim that they were subscribers to the Trust. The defendants deny that those other plaintiffs were ever subscribers to the Trust. 4 On 9 December 1998, the first plaintiff filed a notice of motion for separate issues to be determined. I heard that notice of motion on 19 May 1999. Mr Margo of counsel appeared for the first plaintiff, Mesdames Robinson and Macrae appeared for the first and second defendants (the trustees) and the third defendant appeared in person. After hearing evidence and submissions I reserved judgment which I handed down on 25 June 1999 ([1999] NSWSC 624).

5 My decision was that on the material before me the Speights and Greenlees were beneficiaries of the Trust at the date of the assignment of their interests to the first plaintiff but there were technical reasons why such assignment did not vest their interest in the Trust in the first plaintiff to enable it to have standing in these proceedings. 6 Both sides were unhappy by this decision. In due course, on 9 May 2001, I granted the first plaintiff leave to amend to add the Speights and the Greenlees as additional plaintiffs and I granted the third defendant leave to reopen his case to a limited extent. I indicated that my reasons for judgment delivered in June 1999 must be considered as being suspended. I fixed the resumed hearing of that notice of motion to 3 and 4 December 2001. 7 The only other background fact that I need note is that on 28 August 2000, on motion by the first plaintiff, I found the third defendant in contempt of court because of letters he had sent to the Greenlees and the Speights. The judgment is coded as [2000] NSWSC 845. I ordered, as follows: "…apart from the transmission of formal letters and court documents addressed to a party or its solicitors opposing the third defendant in any litigation, the third defendant is, until further order, by himself, his servants or agents, restrained from sending or communicating, by letter, facsimile, or e-mail, or any other means, any communication to any person who is on the opposite side to the third defendant in any litigation from time to time pending in this Court, or any officer or employee of such party, or any barrister or solicitor for such party, or any partner or employee of any such barrister or solicitor, or any person who has, or has intimated to the third defendant that he or she intends to make an affidavit in any such litigation on behalf of any party opposing the third defendant, without the prior leave of the Court." 8 On 4 May 2001, the third defendant laid an information before a Justice of the Peace at the Downing Centre Sydney, against Mr Greenlees. The information stated: " ALLEGED OFFENCE: That on 18/19th May 1999 at Sydney in the State of New South Wales, the said defendant Archie Greenlees acted dishonestly in making omissions at the hearing before Mr Justice Young on 18/19th May 1999 in Supreme Court proceedings No 2539/1998 intending thereby to pervert the course of justice." 9 There was attached to the information and to the summons a document headed: "STATEMENT OF EVIDENCE In respect of indictment of Archie Greenlees" 10 A similar summons was issued to Mr Speight. 11 On 7 May 2001 the third defendant wrote to Mr Greenlees a letter which was headed "Without Prejudice" and referred to "Criminal Summons served on you pursuant to s 319 of the Crimes Act 1900". The letter said, in essence, that Mr Greenlees may not have been aware that in acting dishonestly in making admissions at the hearing before me on 18/19 May 1999 he was liable to imprisonment for 14 years under s 319 of the Crimes Act. However, if Mr Greenlees were to notify the third defendant that he was induced so to act by various people by the payment of substantial inducements, he would seek instead to further charge those that induced Mr Greenlees to commit the criminal offence. 12 The third defendant also laid informations against Gary Weiss, an officer of the first plaintiff and other companies, David O'Bryen, similarly an officer of the first plaintiff and other companies, Michael Wilkins in the same plight and Sir Ron Brierley, whilst an officer of Tyndall Australia Ltd and Guinness Peat Group plc alleging a conspiracy to cheat and defraud the Meridian Investment Trust unitholders including the informant, those persons alleged to be "liege subjects of Our Lady the Queen" and also conspiracy to commence proceedings in this Court for a predominant collateral purpose "contrary to the said Act or Regulation in such case made and provided". 13 In addition, on 7 May 2001, the third defendant faxed various people that he wished to prosecute me, G C Lindsay SC, R F Margo SC and solicitors H Werksman and Ms T Leibman. 14 The plaintiffs claim an order that these summonses which were returnable at the Downing Centre on 19 June 2001 be stayed. The Court has jurisdiction under s 23 of the Supreme Court Act to supervise the activity of inferior courts and tribunals. In particular there is jurisdiction in this Court to stay proceedings in that court when there is an abuse of the lower court's process; see Walton v Gardiner (1993) 177 CLR 378, 391-2. 15 Additionally, there is inherent power in this Court even where there is no abuse of process to issue an injunction to prevent a party from having a matter that is before the Supreme Court from being determined in an inferior court; see eg Thames Launches Ltd v Trinity House Corporation [1961] Ch 197. 16 Dealing first with abuse of process, the circumstances where there will be such an abuse will be multifarious. I would hope that there is no precise precedent for the present situation. 17 There is no doubt that the third defendant has attempted to charge Messrs Speight and Greenlees with the offence of by omission intending to pervert the course of justice. This is an indictable offence. That is, if a person is committed by a magistrate for trial, or an ex officio indictment is filed, the accused is presented before a judge and jury for trial. 18 Because the third defendant does not appear to understand the significance of the word "indictment", I will summarise sections 10 and 50 of the Criminal Procedure Act 1986: "10(1) All offences shall be punishable by information (to be called an indictment) in the Supreme Court or the District Court, on behalf of the Crown, in the name of the Attorney General or the Director of Public Prosecutions. 50(1) An indictment shall be signed: (a) by the Attorney General, the Solicitor General or the Director of Public Prosecutions; or (b) for and on behalf of the Attorney General or the Director of Public Prosecutions by: (i) a Crown Prosecutor; (ii) a Deputy Director of Public Prosecutions; or (iii) a person authorised under sub-section 2 to sign indictments." 19 I have noted this as the third defendant is fond of saying in his faxes that X has been indicted when what he means is that he has sent a statement of allegations to a public official. 20 The offence under s 319 of the Crimes Act does not include an element of dishonesty as such. The usual form of indictment as set out in Howie and Johnson Annotated Criminal Legislation NSW 1999/2000 ed (Butterworths, Sydney, 2000) at p 1112, also does not include this element. I have serious doubts as to the form of all the charges laid. The charges against Messrs Speight and Greenlees appear defective in focusing on dishonesty rather than the omission and the charges of conspiracy contain this allegation about commencing Supreme Court proceedings for a collateral purpose. The third defendant says that he passed the draft informations under the eyes of a leading criminal barrister who said that they were in order. I worry about that statement for at least two reasons, (1) that a member of the bar would settle criminal charges for a litigant in person in circumstances where on the face of them the laying of such charges might constitute a contempt of court; and (2) that a member of the bar who settled the present charges could ever be classed as a leading criminal lawyer. 21 I am also concerned about the conduct of the Justice of the Peace who accepted the informations. The acceptance of an information and issuing of a summons is not just a mechanical process; see eg Ex parte Qantas Airways Ltd; Re Horsington (1969) 71 SR (NSW) 291. The law is that magistrates before whom informations are exhibited must exercise judgment and not allow their office to be used as a cloak for oppression. Where there is an information which alleges that somebody by omission in evidence before the Supreme Court intended to pervert the course of justice, then one would expect a Justice before whom it was laid to make firm enquiries to ensure that the proceedings were not still current in the Supreme Court. It is easy to give in to a demand of an insistent litigant in one's office, but Justices taking information must be aware and consider the embarrassment, expense and inconvenience to a defendant where a summons is issued on the information. It surprises me that in this case the person who appears to be a professional court employee would permit himself or herself to be made the tool of the third defendant in his present tactic of issuing criminal proceedings to boost his chances of success in civil litigation or to dissuade people from joining his opponents. 22 However, in the instant case the Justice who took the information is not a party to the proceedings nor is any prohibition sought against that magistrate or the local court. I indeed considered whether I should allow such an amendment to be made or indeed permit the magistrate before whom the summonses were returnable on 19 June to make the decision that he or she should stay them. However, in the ultimate, I agree with the submissions of Mr Lindsay SC for the plaintiffs, that to do so would not be appropriate in this case. Not only are the local court officials on the periphery of this case, but it would also impose considerable expense and embarrassment to the defendants to have to appear before the local court. 23 Returning to the central issue, the third defendant says he has a right to lay informations in respect of crimes he considers have been committed and he has reasonable grounds for such belief. That proposition is correct sub limine. However, I have already noted in my judgment of August 2000 that a person is not permitted to make any kind of threat to a party or a witness for the purpose of deterring that person from proceeding with litigation or being a witness in that litigation. Mr Bhagat's right as a citizen to lay informations is circumscribed by that consideration. 24 The letter to Mr Greenlees of 7 May 2001 may well be a breach of the injunction I made last year. I do not rule on that matter. However, the existence of the letter does give rise to the probability that having been prevented from communicating in the way my previous order noted, it was thought that there was a "loop hole" by issuing criminal proceedings. This is consistent with the conduct of the third defendant pursued in other litigation in this Court where he was told that no notice of motion filed by him would be heard unless it was certified and he sought to outflank that order by simply commencing new sets of proceedings. 25 The very idea that a person in a part-heard matter in the Supreme Court can charge a witness with perverting the course of justice by omission must almost by definition affect the ability of the Supreme Court to give a full and proper decision on unbiased evidence. 26 In my view the prosecutions are an abuse of process. 27 Even if I was not of that view, then the question that is posed to the local court by the summonses involves the local court determining the very question that is before this Court. That is not something which is permitted. Where there are proceedings pending in this Court, then inferior courts should be prevented both in their civil and their criminal jurisdictions from determining the same question, particularly in criminal proceedings. 28 I had the above reasons ready to deliver orally on 14 May 2001. However, I was requested by Mr Bhagat not to deliver them and I thought he gave an undertaking to the Court which would preserve the status quo until 3 July 2001. 29 Over the objection of Mr Margo, I indicated that on appropriate undertakings being given the judgment could be handed down on 2 July 2001. One of the main reasons for so deciding is that I had set aside an hour and a half for this matter on 14 May, a day on which I had numerous other cases to consider, and that time was talked out. There were, however, other grounds put forward by Mr Bhagat as to why I should adjourn the matter. 30 The transcript of 14 May 2001 (page 60) records Mr Bhagat as saying: "I am prepared to give the undertaking as already given, that I will not commence any proceedings against counsel or anyone else on the opposite side…". 31 I then stood the giving of judgment over until 2 July. However, the draft judgment was engrossed ready to deliver it on that day. 32 I am informed that at about 7 pm on 29 May 2001, a process server employed by the third defendant delivered to my home a document headed "Summons - General Purposes" addressed to "Young, J, Supreme Court" alleging that "the said defendant Young J acted dishonestly in wilfully lying in paragraph 11 of his Judgment in Supreme Court Proceedings No 2539/1998 intending thereby to pervert the course of justice." 33 The document has, of course, been conveyed to the appropriate people for the appropriate action. However, because of this development, I consider it necessary to publish the judgment so that it becomes public property. 34 In my view, even without the added action of the third defendant in issuing a summons against me, it is necessary to order that the third defendant by himself, his servants or agents be restrained from taking any action on any information laid by him against Archie Greenlees, Jack Speight, Dennis O'Bryen, Gary Weiss and Michael Wilkins, other than attending before the Downing Centre Local Court and having the same adjourned to a date later than 1 February 2002 or having the summons dismissed. I further order the third defendant to attend before the Downing Centre Local Court on the next return day of each of the said summonses and request the presiding magistrate to adjourn the same to a date later than 1 February 2002 or to have the summons dismissed. 35 I also order the third defendant by himself, his servant or agent be restrained from laying any information against any party to or to any person who has filed an affidavit in any proceeding in this Court in which the third defendant has also been a party or is or has been a barrister or solicitor for such a party without the prior leave of this Court. 36 I will reserve the costs of this application.

Last Modified: 06/01/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.