DAEMAR v CORPORATE AFFAIRS COMMISSION CORPORATE AFFAIRS COMMISSION v DAEMAR [1990] NSWCA 51

DAEMAR; CORPORATE AFFAIRS COMMISSION vy CORPORATE AFFAIRS COMMISSION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

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

[1990] NSWCA 51

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.

Priestley JA I agree with Meagher JA.

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."