NOLAN v CURBY [1995] NSWCA 324

NOLAN v CURBY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, POWELL and COLE JJA 11 December 1995, 20 December 1995

[1995] NSWCA 324

LEAVE TO APPEAL — APPLICATION FOR INTERLOCUTORY STAY OF CRIMINAL PROCEEDINGS — WHETHER SERIOUS QUESTION TO BE TRIED — PROBABILITY OF SUCCESS IN FINAL PROCEEDINGS AVAILABILITY OF RELIEF IN CRIMINAL PROCEEDINGS

FACTS

The appellant had been interviewed over many months by police officers attached to the Building Industry Task Force attached to the Building Industry Royal Commission allegedly on the understanding that the statements that he made would never be used against him in criminal proceedings. However, 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. The appellant sought a stay of the proposed criminal proceedings before Dowd J which was refused.

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.