NOLAN v CURBY

Dowd J did not apply the correct question in determining whether a stay should be granted. His Honour did not advert to the question whether there was a serious issue to be tried. His Honour did not, however, decide the issue posed by the stricter test of whether the appellant's case was capable of establishing the cause of action on which he relied which is a different question to one which inquires whether the appellant's case established a cause of action but concluded that the appellant had not established exceptional circumstances. Following delivery of judgment by his Honour there was no indication by the solicitor for the appellant that he intended to appeal, nor did he seek a stay. In the circumstance that the respondent was quite free to do so he approached the Local Court at the Downing Centre on 17 November and laid four informations alleging offences under s178BA of the Crimes Act against the appellant. Four summons were then issued by the Local Court and these were served on the appellant on 17 November. In the light of these events, no injunction can be granted restraining the defendant from instituting the criminal proceedings referred to in the original process filed in the Court.

The parties reached agreement on two substantive matters.

(1) That in the event that the court considered that leave should be granted it should proceed to determine the substantive appeal on the basis of the arguments already presented and any further written submissions tendered to the court.

(2) That insofar as there were no questions of demeanour involved that if the Court considered that the appeal should be granted it should not return the proceedings to the Common Law Division but should make the appropriate interlocutory orders.

Held (per Clarke JA, Powell and Cole JJA concurring)

Was His Honour's ultimate decision wrong? The critical question is whether there is a serious question as to whether this is one of those exceptional cases in which, notwithstanding the reluctance of the civil courts to interfere in the criminal process, a stay should be granted.

The nub of the matter is that the proposed proceedings, or the proceedings commenced, are criminal proceedings and it is for the criminal courts to exercise the control necessary to prevent an abuse of their processes.

In the manner that this application was contested before Dowd J the parties focussed solely on the issue whether, accepting the appellant's evidence, there was a serious issue to be tried and they seem to have assumed that there was substantial relationship between

the material disclosed and the subject matter of the charges. It is appropriate that I do likewise. Upon this basis it seems to me that the undisputed evidence which is before the Court establishes a serious question whether the continuation of the prosecutions based on, or related to, the information and documents disclosed by the appellant as a consequence of the alleged representation constitute an abuse of process. However, that conclusion is not sufficient to secure an interim stay.

It is appropriate to approach the present question on the basis that the appellant needs to show that there is, at least, a reasonable prospect or probability of success in the final proceedings. A most important consideration in considering this question is the availability of relief in the criminal courts.

There are many possible remedies available to the appellant in the criminal courts whichever course the proceedings take and it is not self evident to me that they will prove inadequate to secure fairness and justice for the appellant. In my opinion the appellant has failed to demonstrate that there is a probability or reasonable chance of success in the final hearing and for this reason the application for leave to appeal should be dismissed. In saying that I do not wish to be thought to be passing judgment on the facts of the case. My conclusion is based solely on the fact that the strong probability is that the court conducting the final hearing will decide that this is not an exceptional case and not one in which the court should intervene. There is accordingly, little chance that final relief will

be granted in the civil courts and for this reason interlocutory relief should be refused. ORDERS The application for leave to appeal should be dismissed with costs.

Clarke JA Christopher John Nolan, the appellant, filed a summons on 13 November 1995 seeking an order that Paul Curby, the respondent, be restrained from charging, commencing or otherwise instituting any criminal proceedings against him related to any matter referred to in the material contained in the statements, audio tape recordings, video tape records or other documents given to the police by the appellant or his wife. (The summons originally named two respondents but as the second one was removed from the proceedings I will proceed as though there was only one.)

At the same time he filed a motion seeking to restrain the respondent from instituting criminal proceedings against him until further order of the Court.

The hearing of the notice of motion on the 13th November was adjourned until the 16th when it was heard by Dowd J. What, in my understanding, the appellant sought was interlocutory relief until the summons could be heard.

The appellant sought to rely on an affidavit which he had sworn on 13 November. In that affidavit he deposed to the fact he had been interviewed over many months (the months and years are not stated) by police officers attached to the Building Industry Task Force attached to the Building Industry Royal Commission. The appellant deposed that he made a number of statements. That he was interviewed on audio tape and video tape and that he freely provided the police with diaries and a number of other documents which they requested including invoices, statements and records of his companies.

"T was told that I had no choice but to answer the questions put to me and to hand over the documents requested of me because of the compulsive powers which vested in the Building Industry Royal Commission; that the Building Industry Task Force was attached to the Royal Commission and that the statements and documents being taken from me were taken preparatory to me giving evidence to the Royal Commission and possibly in later criminal proceedings against other persons; and that nothing that I said adverse to my own interests could be used against me because of the provisions of the Royal Commissions Act."

The appellant stated that he believed and relied upon what he had been told and that he co-operated fully with the police at all times. He also made the bald statement that the police officers promised him that he would not be charged with any offence. He conceded that he was cautioned that anything that he said may be given in evidence (which was accepted to be a proper caution) but in the context he understood that statement as a reiteration of what the police had already told him.

After saying that he would never have co-operated with the police if he had thought that statements he made would be used against him in criminal proceedings he says that an appointment was made for him to attend the Police Centre on 10 November 1995 for the purpose of being charged with several counts of obtaining a financial advantage by deception. At that stage he sought legal assistance.

His solicitor spoke with a representative of the New South Wales Director of Public Prosecutions and was advised that the appellant would be charged unless restrained by an order of the Supreme Court. Accordingly, the appellant filed his summons and notice of motion.

Upon the return of the notice of motion the appellant's solicitor informed Dowd J that he wished to file further affidavits in relation to "the stay sought in the summons". This statement I have taken from his Honour's reasons for judgment but it is one which I find somewhat ambiguous. On one view Mr Genge, the solicitor, was advising his Honour that he wished to file further affidavits in relation to the proceedings then before his Honour. On another view Mr Genge was simply informing his Honour that when the summons came on for hearing the appellant would wish to file further affidavits in support of the affidavit already filed by him. In the circumstance that the appellant declined an adjournment it probably does not matter which is the correct interpretation but on balance it would seem that the first one is correct for the reasons for judgment proceed:

"Mr Chambers, who appeared for the defendant, has conceded the facts alleged by the plaintiff for the purposes of this motion only, on the basis that he contends, even if those were the facts, there is no basis for a stay as sought by the plaintiff. I have not taken that concession by Mr Chambers to mean a concession of any of the facts alleged, for this or for any other purpose. The argument is, in effect, in the nature of a demurrer rather than a contest on the facts."

I have recited the whole of the paragraph because it provides the clearest indication of the inquiry on which his Honour embarked. In the reasons which follow his Honour, correctly in my opinion, pointed to the great reluctance of civil courts to interfere in the course of criminal proceedings and the consequence of that reluctance, which is that the courts will stay a criminal proceeding only in exceptional circumstances. His Honour then went on to conclude that the appellant had not made out a case for the court to find exceptional circumstances or "any circumstance to warrant the making of an order to stay the proposed criminal proceedings". Although it would appear that his Honour appreciated that the order sought was merely an interlocutory injunction pending the hearing of the summons his Honour's conclusion was expressed in terms of finality. That is to say, he concluded that, even accepting the facts put forward by the appellant, the case was not an exceptional one. That expression of his Honour's conclusion strongly suggests that his Honour did not apply the correct test. The one which his Honour was bound to apply in

determining whether interlocutory relief should be granted is to be found in Castlemaine Tooheys Ltd and Ors v The State of South Australia (1986) 161 CLR 148. It is sufficient at this stage to cite the headnote which reads:

"Tn order to secure an interlocutory injunction a plaintiff must, in the majority of cases, establish that there is a serious question to be tried. But in some cases, where the public interest would be adversely affected by the grant of an injunction, the plaintiff may need to show a probability, even a distinct probability, of success." (See at 1534).

His Honour did not advert to the question whether there was a serious issue to be tried and, while there are clear indications that his Honour understood that he was involved in an interlocutory proceeding, his reference to a demurrer and the concluding part of his judgment are clear indications to me that he failed to use the correct approach in determining whether relief should be granted. On one view, in applying a test in the nature of a demurrer, he sought to apply a stricter test - whether the appellant's case was capable of establishing the cause of action on which he relied. That is a different question to one which inquires whether the appellant's case establishes a cause of action. His Honour did not, however, decide the issue posed by the stricter test but concluded that the appellant had not established exceptional circumstances.

In the course of his judgment his Honour referred to R v Georgiadis [1984] VR at 1030, in which an application was made to the court during the course of a criminal trial which could best be described as an application in the nature of, or analogous, to an application for a permanent stay for an abuse of process. Dowd J quite properly distinguished that case for the application was made during the trial in a criminal court and the trial judge did not specifically consider the ultimate issue whether a stay should be granted.

His Honour also considered, amongst other cases, the decisions of Foster J, the Full Federal Court and Gaudron J in the High Court, respectively in Elliott v Seymour and Ors [1993] 100 ALR 1 and cited a passage from the judgment of Foster J in which his Honour said:

".. if it (the power of a superior court to prevent the initiation of a criminal prosecution) exists at all, could be exercised only in the most exceptional circumstances such as where to permit the prosecution to be launched would be to bring the administration of justice into severe disrepute. Clearly for this result to occur the behaviour of the prosecutor or those behind him would have to be extraordinarily reprehensible, heinous in the extreme."

His Honour's conclusion was that the exceptional circumstances had not been established in this case. Following the delivery of judgment by his Honour there

was no indication by the solicitor for the appellant that he intended to appeal, nor did he seek a stay. In the circumstance that the respondent was quite free to do so he approached the Local Court at the Downing Centre on 17 November and laid four informations alleging offences under s178BA of the Crimes Act against the appellant. Four summons were then issued by the Local Court and these were served on the appellant on 17 November.

These summons were returnable on 1 December on which day the appellant and two co-defendants appeared before the Local Court at the Downing Centre when the proceedings were stood over for further mention on 15 December 1995. It is apparent that, in the light of these events, no injunction can be granted restraining the defendant from instituting the criminal proceedings referred to in the original process filed in the Court. What, as I apprehend it, the appellant seeks to achieve by appealing from the decision of Dowd J is an order, somewhat

different from that which he originally sought, to the effect that the respondent be restrained from taking any further steps or otherwise proceeding in the summons matters until this Court has been able to give a final decision on the summons that was originally filed seeking an injunction. It is clear, however, that the summons will need to be recast and that no longer is this court concerned with any question about restraining the institution of proceedings. It is too late to take any step in that regard.

Before turning to the substantive question before the Court it is desirable that I indicate that, in a separate hearing before me on 13 December, after the Court had reserved its decision on the leave application, the parties reached agreement on two substantive matters. They were -

(1) That in the event that the court considered that leave should be granted it should proceed to determine the substantive appeal on the basis of the arguments already presented and any further written submissions tendered to the court.

(2) That insofar as there were no questions of demeanour involved that if the Court considered that the appeal should be granted it should not return the proceedings to the Common Law Division but should make the appropriate interlocutory orders.

I turn then to consider whether his Honour's ultimate decision was wrong.

The appellant's case was that he had provided information and documents to police associated with the Building Industry Task Force because he was told that he had no choice but to answer questions put and to hand over the documents requested; because he was told that this was preparatory to his giving evidence to the Royal Commission and possibly later criminal proceedings against other persons; because he was told that nothing he said adverse to his own interests could be used against him because of the provisions of the Royal Commissions Act and because unidentified police officers promised him that he would not be charged with any offence. The appellant submitted that he was induced by those statements, which were false, to co-operate when otherwise he would not have done so.

His evidence (which the Court is bound to assume is correct for present purposes) raises a serious question about the conduct of the officers involved but that does not mean that the proceedings, which were commenced the day after Dowd J's judgment, should be stayed pending the hearing of the summons. The critical question is whether there is a serious question as to whether this is one of those exceptional cases in which, notwithstanding the reluctance of the civil courts to interfere in the criminal process, a stay should be granted.

In support of the application the appellant's counsel referred to three authorities. The first of the three cases to which the court was referred (and to which his Honour was not referred) was R v Croydon Justices, ex parte Deane [1993] 3 AER 129, a decision of two justices of the Queens Bench Division. There the court was concerned with a case in which a person, who was an accessory after the fact, alleged that he had given assistance to the prosecuting authorities because the police wished to use him as a prosecution witness and had told him that he would not be prosecuted for offences associated with the murder of a named person.

Staughton LJ, who gave the judgment, concluded that the 'prosecution of a person who had received a promise, undertaking or representation from the police that he will not be prosecuted is capable of being an abuse of process'. In reaching that conclusion his Lordship considered a number of cases including R

v Milnes and Green [1983] 33 SASR 211, R v Georgiadis (supra), R v Betesh [1976] 30 CCC (3d) 233 and Chu Piu-wing v A-G (1984) HKLR 411.

A similar question was considered in R v Trainor (1991) 56A Crim R 102 by the Court of Criminal Appeal in Queensland. There the prosecutor and the appellant's solicitor reached an agreement that in consideration that the appellant would not seek an order for costs against the prosecutor the prosecution would be discontinued. Dowsett J considered that the mutual intention must have been that all proceedings in respect of the incident in question be then and there terminated and went on to say:

"Nothing is more likely to bring the judicial process into disrepute than to permit either the Crown or the police force to resile from such an agreement I consider that the subsequent proceedings constituted an abuse of process."

These cases, to adopt the words of Cox J in R v Vuckov and Romeo (Supreme Court of South Australia, 7 April 1986, unreported):

".. Show on the whole a cautious but steady development in recent years of the use of a stay of proceedings on the criminal side as a remedy against prosecutorial oppression in a variety of situations. They are not all concerned with the manner of a man's trial, but extend to the question whether he should be tried at all. There can be no set categories of cases that call for the exercise of this drastic but necessary power.".

Both Croydon Justices and Trainor and the other decision to which the court was referred (R v Tilley [1992] 109 FLR 155) were cases in which the courts intervened on the application of a party to prevent an abuse of process. In the Croydon Justices case the applicant had been charged and committed for trial and had applied for judicial review to quash his committal as a consequence of the alleged abuse of process. His application was based on s4(1) of the Criminal Law Act 1967 and was made pursuant to the grant of leave of a judge of the Queens Bench Division. In Trainor relief was granted pursuant to an appeal from conviction following a hearing after the recharging of the appellant. The appeal was allowed because of the court's view that the proceedings taken which led to his conviction constituted an abuse of the process of the magistrate's court. In Tilley the accused person appeared before Gallop J pursuant to his committal for trial and adhered to pleas of guilty which he had given in the Magistrate's Court. During the sentencing process Gallop J became aware of circumstances which, it is unnecessary to detail in this judgment but which persuaded him that the maintenance of the proceedings constituted an abuse of process. He accordingly did not sentence the accused person but permanently stayed the criminal proceedings. None of these cases, except for the special case of Croydon Justices in which statutory jurisdiction was being exercised, involved an attempt by a person about to be charged, or by a person who had been charged, to seek relief from a civil court, the effect of which would be to bring the processes of the criminal law to a halt insofar as they related to the offence with which he was about to be, or had been, charged. In Elliott the applicants did seek an injunction to restrain the institution of criminal proceedings but that case cannot be regarded as authority for the proposition that the court has power to prevent the institution of proceedings which was the question with which it was concerned.

Ihave already referred to the qualified statement made by Foster J. In the Full Federal Court the judges assumed the existence of a power without defining its precise ambit but accepting that it would only be exercised by a court in exceptional circumstances.

In the High Court Gaudron J also expressed doubt as to the right of a civil court to intervene in criminal proceedings saying (at 7):

"Tt is by no means clear that civil proceedings will lie to prevent the laying of criminal charges. But, if they do, it will only be because it would be an affront to justice if the proceedings were to be instituted or, and this may be an aspect of the same thing, because the safeguards available in criminal proceedings are clearly inadequate to protect against the injustice involved."

In my respectful opinion Gaudron J has fastened on the nub of the matter. The proposed proceedings, or the proceedings commenced, are criminal proceedings and it is for the criminal courts to exercise the control necessary to prevent an abuse of their processes. It is because the criminal courts are invested with wide powers to prevent an abuse of their processes and to provide an adequate remedy when oppression amounting to abuse has occurred that the courts in Elliott spoke of exceptional circumstances. It is primarily for the criminal courts to take action to prevent abuses of their process. It may be that there are circumstances in which a civil court will interfere in the criminal process but I am unable to accept that, except in extraordinary circumstances, such interference is justified in situations where there are adequate remedies in the criminal courts themselves. In this context it is worth citing the observations of Richardson J in Moevao v Department of Labour (1981) NZLR 464 (which were expressly approved by Mason CJ in Jago v District Court (NSW), (1989) 168 CLR 23 at 30):

'The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under the law. It may intervene in this way if it concludes from the conduct of the prosecutor in relation to the prosecution that the Court processes are being employed for ulterior purposes or in such a way (for example, through multiple or successive proceedings) as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court."

In the manner that this application was contested before Dowd J the parties focussed solely on the issue whether, accepting the appellant's evidence, there was a Serious issue to be tried and seem to have assumed that there was a substantial relationship between the material disclosed and the subject matter of the charges. It is appropriate that I do likewise. Upon this basis it seems to me that the undisputed evidence which is before the Court establishes a serious question whether the continuation of the prosecutions based on, or related to, the information and documents disclosed by the appellant as a consequence of the alleged representation constitute an abuse of process.

That conclusion is not sufficient to secure an interim stay. This is a case in which the public interest would be adversely affected to a significant degree by the grant of a stay in that there would be an interference with the criminal process and consequential delay in the finalisation of the proceedings which have been taken. Accordingly it is appropriate to approach the present question on the basis that the appellant needs to show that there is, at least, a reasonable prospect or probability of success in the final proceedings.

In considering that question a most important consideration is the availability of relief in the criminal courts.

In that respect there are a number of avenues of relief open to the appellant. In the first instance, as is usual in criminal proceedings, the Director of Public Prosecutions (DPP) will file a notice under s9 of the Director of Public Prosecutions Act (DPP Act) taking over the proceedings. Once that is done the appellant is fully entitled to make a full and complete submission to the DPP seeking a decision from the DPP that the proceedings instituted against the appellant be withdrawn.

Another course open to the appellant may be to have the issue ventilated before a Magistrate in the Local Court. In exchanges between counsel for the appellant and the court on 11 December discussion touched on committal proceedings. They are a possibility but so is a summary hearing. As a result of amendments to the Criminal Procedure Act, offences of the kind with which the claimant is charged are categorised as Table | offences and s33C(1) of that Act provides:

"An indictable offence listed in Table 1 to this Part is to be dealt with summarily by a Local Court unless the prosecuting authority or the person charged with the offence elects in accordance with this part to have the offence dealt with on indictment."

Whilst at this stage it is not known what attitude the appellant may take to the matter in the Local Court, it is possible that the matter could be dealt with summarily and as such the claimant could argue either that the impugned evidence ought be excluded or that the proceedings be stayed.

There must be, however, doubt as to whether he could succeed in an application for a stay of summary proceedings for the question of the Local Court's power to stay criminal proceedings must be regarded at the present as an open one. (See DPP v Boykin, Supreme Court of New South Wales, Wood J, 21 June 1994, unreported). The point was not debated before the court and it would not be appropriate for me to express a final conclusion upon it. On the other hand the appellant would be able to argue forcefully that the evidence ought to be excluded pursuant to s139 of the Evidence Act 1995. If the facts are as the appellant has deposed he must have a powerful case for the exclusion of that evidence. That remedy may, or may not, be adequate to counteract any injustice or oppression but it is impossible at this stage to rule that, assuming a summary disposal of the proceedings, the appellant will not be able to get adequate relief in the local court.

If the matter were to proceed by way of committal it must be accepted that the Local Court, as the committing court, would have no power to stay the proceedings. Grassby v The Queen, (1989) 168 CLR 1. The court would, on my understanding, have power to entertain an objection to evidence and then to consider the issue raised under s139 of the Evidence Act and, if appropriate, to exclude the evidence. If this were to occur then the impugned material could not be relied upon in the committal with the possible result that the court may decline to commit the appellant for trial.

In these circumstances, although it would still be open for the DPP to file an ex officio indictment, it cannot be said that this would be a probable or likely consequence and, in any event, the respondent, or the DPP, would be likely to be met with a stay application in the court before which the appellant was brought.

If the appellant were committed for trial he would be able to make an appropriate stay application in the court before which he was ultimately arraigned. Even if that were unsuccessful he could seek to have the impugned evidence excluded.

The point of this discussion is that there are many possible remedies available to the appellant in the criminal courts whichever course the proceedings take and it is not self evident to me that they will prove inadequate to secure fairness and justice for the appellant.

The argument which the appellant advanced before Dowd J to counter that conclusion was that the mere institution of criminal proceedings cast a shadow over the appellant's reputation and that nothing in the criminal procedures could prevent this damage occurring. It was only, he submitted, a civil court which could stop the appellant's reputation being damaged by the institution of proceedings which constituted an abuse.

That argument no longer holds good and the appellant's counsel has been forced to contend that his client should be spared the expense of a committal and trial, or a summary trial, because the proceedings are in truth an abuse. That argument is not, in my view, persuasive when what is sought is that a civil court disrupt the normal criminal processes in a case in which it has not been shown that the criminal courts cannot provide adequate relief. In my opinion the appellant has failed to demonstrate that there is a probability or reasonable chance of success in the final hearing and for this reason the application for leave to appeal should be dismissed. In saying that I do not wish to be thought to be passing judgment on the facts of the case. My conclusion is based solely on the fact that the strong probability is that the court conducting the final hearing will decide that this is not an exceptional case and not one in which the court should intervene. There is, accordingly, little chance that final relief will be granted in the civil courts and for this reason interlocutory relief should be refused.

The application for leave to appeal should be dismissed with costs.

Powell JA I agree with Clarke JA. Cole JA I agree with Clarke JA.

The application for leave to appeal should be dismissed with costs. COUNSEL: