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Supreme Court 19 March 2004

GARGAN v. WOODGATE; GARGAN v. COMMONWEALTH BANK OF AUSTRALIA & ANOR

[2004] NSWSC 177

Other

Citation: Gargan v Woodgate; Gargan v Commonwealth Bank of Australia & Anor [2004] NSWSC 177
Court: Supreme Court of New South Wales, Common Law Division
Date: 19 March 2004
Judge(s): Greg James J

Background

The plaintiff, a self-represented litigant, commenced multiple proceedings in the Supreme Court against a trustee in bankruptcy and the Commonwealth Bank of Australia. The proceedings arose from a bankruptcy administration in which the plaintiff held grievances about how mutual dealings had been accounted for and about various applications made to the court by the defendants.

The plaintiff purported to act as a "common informer," a historical concept referring to a private individual who sues to recover a statutory penalty, with part of that penalty payable to the Crown and part to the informer. He claimed the defendants had committed criminal offences under federal legislation, including obtaining a financial advantage by deception and perverting the course of justice, and sought to recover liquidated penalties said to flow from those offences.

The defendants applied for summary dismissal of the proceedings, arguing they constituted an abuse of the Supreme Court's process. The applications were heard together, as all matters raised a common question of law.

  • Whether a private individual has the authority to commence criminal prosecutions in the Supreme Court by summons, purporting to act as a "common informer."
  • Whether the summary procedure used by the plaintiff (a summons under Part 75 of the Supreme Court Rules) was available for the prosecution of criminal proceedings in that court.
  • Whether the offences of obtaining a financial advantage by false representation and perverting the course of justice can support a private right of action for penalties.
  • Whether the proceedings amounted to an abuse of the court's process warranting summary dismissal under Part 13 Rule 5 of the Supreme Court Rules.

Decision

The court found that the plaintiff's chosen procedure was fundamentally unavailable for the purpose he sought to use it. Criminal proceedings in the Supreme Court must be commenced by indictment filed by those lawfully authorised under State and Commonwealth law to do so. A summons in the form employed by the plaintiff was simply not a recognised mechanism for prosecuting criminal offences in that court.

The court also rejected the plaintiff's claim to proceed as a common informer. Even accepting the historical existence of common informer proceedings, the offences the plaintiff sought to prosecute did not give rise to any private right of action for penalties. An ordinary application to a court cannot amount to obtaining a financial benefit by deception, and a regular court application likewise cannot constitute an attempt to pervert the course of justice.

Greg James J concluded that the proceedings were doomed to fail because they disclosed no cause of action that the plaintiff could bring in that court. The use of court process to attempt to extract payments from defendants in this manner was characterised, in terms drawn from prior authority, as "an instrument of individual extortion, caprice and tyranny."

Given the multiplicity of proceedings brought by the plaintiff along similar lines, the court also indicated that the judgment should be drawn to the attention of the Attorneys-General for New South Wales and the Commonwealth, with a view to their considering whether an application to have the plaintiff declared a vexatious litigant was warranted.

Orders Made

  • The proceedings in each matter were declared to be an abuse of process.
  • Each set of proceedings was dismissed generally under Part 13 Rule 5 of the Supreme Court Rules.
  • The plaintiff was ordered to pay the defendants' costs on an indemnity basis.
  • The court indicated it would refer the matter to the Attorneys-General of New South Wales and the Commonwealth regarding a potential vexatious litigant declaration.

Key Takeaways

  • The Supreme Court confirmed that criminal proceedings cannot be commenced by summons under Part 75 of the Supreme Court Rules; indictment by a lawfully authorised party is required.
  • Proceedings framed as a "common informer" claim do not give rise to a private right of action where the underlying offences, here obtaining a financial advantage by deception and perverting the course of justice, carry no such private right.
  • An ordinary or regular application to a court cannot, as a matter of law, constitute either obtaining a financial benefit by deception or an attempt to pervert the course of justice.
  • In dismissing the proceedings, the Supreme Court treated the use of court process to extract penalty payments from defendants as an abuse that was independently sufficient to warrant summary dismissal, regardless of the precise procedural rule engaged.
  • Where a litigant has brought multiple proceedings of a similarly misconceived character, the court may refer the matter to the relevant Attorneys-General for consideration of a vexatious litigant application, and indemnity costs are available against such a litigant.

Legislation and Cases Referenced

Legislation:
- Supreme Court Rules (NSW), including Part 13 Rule 5, Part 15 Rule 26, Part 75
- Supreme Court Act 1970 (NSW), including s 17 and Schedule 3
- Criminal Procedure Act 1986 (NSW)
- Judiciary Act 1903 (Cth)
- Crimes Act 1914 (Cth), including ss 43 and 4B
- Criminal Code Act 1995 (Cth), including s 134.2
- Bankruptcy Act 1966 (Cth), s 86
- Fines and Forfeitures to the Crown Act (1670-71)
- Customs Act 1901 (Cth)

Cases:
- Hawkesbury City Council v Foster & Anor (NSW Court of Appeal, unreported, 18 December 1997)
- Morisset Mega-Market Pty Limited & Anor v Peter Alexander Gargan, No 12688 of 2002 (referenced in judgment)