JUDGMENT ko. O3.7.BB NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G713 of 1987 GENERAL DIVISION ee ee BETWEEN: RICHARD LINDSAY GOLDSPINK Applicant AND: ROBERT GEORGE MOODIE & ORS Respondent CORAM: Davies J. DATE: 22 January 1988 PLACE: Sydney REASONS FOR JUDGMENT I will deal first, gentlemen, with the tes ocutory application. The applicant, Richard Lindsay Goldspink, and four other persons were in 1985 charged with eight counts of conspiracy to defraud the Commonwealth, the substance of each charge being a conspiracy to avoid the payment of income tax by virtue of tax avoidance and bottom of the harbour arrangements. The affairs of approximately 1400 companies were involved in the prosecution. Committal proceedings in respect thereof, taken before Mr Butler, Stipendiary Magistrate, have taken a considerable time and are still on foot. The defendants have not yet made their addresses. to nee ee WT rer spe ern eee = 2. Mr Goldspink, who was formerly a practicing accountant and is now an undischarged bankrupt by virtue of civil recovery proceedings brought in relation to the subject taxation arrangements, has problems in addition to a present shortage of funds. He has psychological problems and is suffering from neurosis and phobia. There were some medical reports in the material before me, one of which has described his condition as phobic anxiety disorder, another of which has described his problem as a disorder of personality as a manifestation of which he has phobic symptoms. To date, Mr Goldspink has conducted his own defence in the committal proceedings, not being able to afford legal representation. In March 1987, the Director of Public Prosecutions came to the conclusion that four of the taxation arrangements, the subject of the prosecutions, had occurred after the coming into operation of the Crimes Taxation Offences Act 1980 and had been backdated. Four new charges were laid against Mr Goldspink and one of his co-defendants, Mr Newby, and Mr Butler, Stipendiary Magistrate, was informed that the charges before him in relation to those matters were withdrawn. Those charges were laid in March or April of 1987 and the four charges were fixed for hearing on 1 February 1988, the hearing being expected to last three weeks. On 1 December 1987, Mr K.R. Murray QC, senior counsel for Mr Goldspink, applied to Mr P.M. Norton, Stipendiary Magistrate, for an order that the four new charges be stayed until the conclusion of the proceedings before Mr Butler. A ground of the application was that it would be unduly oppressive to undertake the hearing of wae ee ee ee See La : J . yo. mee pe ee ee ee 3. those charges while Mr Goldspink had to contend with the committal proceedings before Mr Butler. The learned magistrate refused the application, being of the view that it was desirable to proceed with expedition with the new charges and that Mr Goldspink would not be unduly prejudiced by their so proceeding. On 9 December 1987, Mr Goldspink lodged with this Court an application under the Administrative Decisions (Judicial Review) Act 1977 for orders of review with respect to the Gecision of the Director of Public Prosecutions to institute the four new charges and the decision of Mr P.M. Norton, Stipendiary Magistrate, refusing to stay the continuance thereof. The application is intended to encompass also action by the Director of Public Prosecutions in continuing to prosecute the charges while the proceedings before Mr Butler were on foot. The application to this court was returnable in the first instance before Mr Justice Fox on 18 December 1987. No directions were given on that day, presumably because the parties were not agreed as to the directions that should be given. The matter was adjourned to the directions list on 5 February 1988. His Honour intimated that it could or might be proper for the magistrate hearing the committal proceedings not to proceed pending the determination of the matter in this court. On 24 December 1987, Mr Justice Fox handed down a reserved decision in a somewhat analogous application brought by <a wee me = - Hees a we ee me ree at wy pee eps He eee ren ce ee 4. Mr Newby. The subject of that application was the institution of the new charges. Mr Justice Fox rejected the application taking as one ground for that step the fact that application had not been made in the first instance to the Magistrates Court to have those proceedings dismissed as an abuse of process. His Honour thought that an application should be made to this court only after the matter had first been dealt with in the Magistrates Court. Shortly after the handing down of that decision the respondent in the present proceedings approached the registrar for a date for the hearing of this matter in January 1988. The seeking of a date for hearing in January was in my opinion premature for no directions had been given as to the future conduct of the matter. If the view expressed by Mr Staehli to me this day, namely that there is no merit in the application, be correct, it may have been appropriate for the respondent to seek to have the application dismissed or stayed on the ground that it was vexatious and had no prospect of success. If such an application had been made it could properly have been dealt with this month but no such application was made and it would not have been proper to set down the matter for hearing as if it had been fully prepared. The registrar properly referred the matter to the directions list. It came on before Mr Justice Beaumont on 15 January last and his Honour directed that the application be listed this day for directions and for the hearing of any interlocutory applications. Mr K.R. Murray QC and Mr A. Barrie weep ee epee eee oe eee ee tn wo z were ee "to 4 . aoe ee cern appeared for the applicant today and Mr D. Staehli appeared for the respondents. I shall deal hereafter with the question of directions and will deal at the moment only with the application, which was made by Mr Murray, for an interlocutory order restraining the hearing of the committal proceedings fixed for 1 February next. Mr Murray put the application on the basis that if an interlocutory order were not made, the subject matter of the dispute in these proceedings would disapppear for the substantial order sought in the review is that the committal proceedings should not go ahead at this time, being oppressive. Mr Staehli submitted in substance that the application had no merits and would inevitably fail. He submitted that to grant the injunction would be to achieve for the applicant what the application sought and that it would interfere with the ordinary and proper processes of criminal justice system. The principles to be applied have been enunciated in American Cyanamid Co v. Ethicon Limited, (1975) AC 396 in which, at page 409, Lord Diplock stated that, on the hearing and application for an interlocutory injunction, the court should not embark upon anything resembling a trial of the proceedings. At pages 407 to 408, his Lordship rejected the view that it was necessary to establish a prima facie case and said and I quote:- "The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried." At page 408, his Lordship said and I quote:- 6. "So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought." The view adopted in that case has since been adopted in many cases in Australia. It is sufficient for me to refer to Castlemaine Tooheys Limited and Others v. State of South Australia 67 A.L.R. 553, particularly at 557-8, and to Aboriginal Development Commission v. Ralkon Agriculture Co Pty Limited, 74 A.L.R. 505. The first question therefore is whether, on the material before the court at this early stage, it appears that the application is vexatious and without a serious question to be tried or whether, on the contrary, there does appear from the material to be a serious question that ought to go to trial. So far as the principal application deals with the decision of the Director of Public Prosecutions to institute the four charges, I do not see any material which raises a serious question in relation to that. Firstly, there is a lack of material as to the reasons for the institution of the charges. Secondly, the application was out of time and an extension of time would be required to deal with that decision. Lastly, this 1s not a matter which was raised in the magistrate's court and I entirely agree with what Mr Justice Fox had to say about that. However, on the question as to whether there should be a stay while the committal proceedings before Mr Butler are nye er oe easyer ee ee tee PO Te cae ar ee ny wa wane 7. concluded, there is, I think, a serious question to be dealt with. The evidence of Mr Goldspink shows and I quote:- "The committal proceedings before Mr Butler S.M. have to date invoived 115 sitting days; 65 witnesses, 180,000 documents in evidence; approximately 10,000 pages of transcript and 1326 companies." Mr Goldspink states also in an affidavit which was filed this day and I quote:— "On 7 December 1987, because of the huge volume of documents relating to me, I requested five months for preparation of my closing address. The other defendants asked for at least three months. Mr Butler S.M. set 24 March 1988 as the date for closing address." It seems to me that there is a serious question, at least an arguable case, that the committal proceedings in respect of the new charges ought not to have been permitted to go ahead in February while Mr Goldspink was involved in the preparation of his address to Mr Butler, his address being required as it now appears by 24 March. I take into account the fact that Mr Goldspink is unrepresented in these committal proceedings and is a person without legal background who has neurotic and phobia problems. It does not appear that the date of 24 March had been fixed at the time when Mr Norton refused the application to him. But what was known by Mr Norton on 1 December 1987 was that on the following Monday, 7 December, Mr Butler would set down a timetable for the continuation of the matters before him. It was on the following Monday that Mr Butler fixed the date for the submission of the defendant's addresses. Mr Norton was also aware that there would be further hearings and indeed a further hearing is fixed before Mr Butler for 3 February. There is, I ae ee et BR re pe swat 8 ne geine ene ee een ee, 8. think, an issue as to whether or not it was oppressive to Mr Goldspink, having regard to his circumstances, to have to face three weeks of new charges while in the process of preparing his address to be put to Mr Butler. Having made these remarks, I should make it clear that I do not have any view about the success or failure of the application and I express no criticism whatever of Mr Norton's decision. It is simply for me at the moment to ascertain whether there is an issue which ought properly to go to trial and on which arguments on both sides can be put. I think in the present case there is such an issue. I have therefore not attempted to form any final view about the success or failure of the arguments that might be put on either side and, of course, I recognise that the material before me is not the material in the form in which it will finally be when the application comes on for trial. Turning to the balance of convenience, it was not put by the respondents that there would be any prejudice to them if an injunction went but I take into account the considerable public interest in the expeditious handling of criminal charges. If there is an injunction then the injunction would merely delay the hearing of the charges. If no injunction goes then the applicant will totally lose his opportunity to obtain relief against the processes that he claims are oppressive. 9. In my view, the balance of convenience falls clearly on the side of the grant of an injunction at the present time, an injunction delaying the hearing of the committal proceedings until such time as the issue has been litigated in this court. For those reasons I am of the view that there should be an injunction until the hearing and determination of the principal application or further order. The injunction should go to the first and second respondents and should restrain them from continuing the prosecution proceedings in relation to the four new charges, Mr Murray also sought an injunction in relation to other prosecution proceedings but it does not seem to me that those are matters presently before the court and I do not include them in the order. It is, I think, unnecessary for me to make any order as against the local court and I shall therefore make the order in the form I have expressed it. I shall reserve liberty to apply so that application can be made at any time either to vary it or to terminate it. I certify that this and the preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Davies. Associate a Date: s ue 14% . " renee ep mane ieena aye cease pecan Counsel for the applicant: Solicitors for the applicant: Counsel for the respondent: Solicitors for the respondent: Date of hearing: 10. Mr K.R. Murray QC with Mr A. Barrie Mr R. Goldspink Mr D. Staehli Director of Public Prosecutions 22 January 1988 eos oee eer wea ows wwe ee ee mew rte yt