MILLER v COTTER & ANOR [1999] NSWSC 854

New South Wales Supreme Court CITATION : MILLER v COTTER & ANOR [1999] NSWSC 854 CURRENT JURISDICTION : Civil FILE NUMBER(S) : 13018/97 HEARING DATE(S) : 19 August 1999 JUDGMENT DATE : 19 August 1999

PARTIES : Damon Charles Miller (Plt) Peter Cotter (1st Def) JUDGMENT OF : Newman J

LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Price SM

COUNSEL : Damon Miller (Plt in person) P Berman (1st Def) SOLICITORS : Damon Miller (Plt in person) Director of Public Prosecutions CATCHWORDS : DECISION : Summons dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

NEWMAN J

THURSDAY, 19 AUGUST 1999 13018/97 - Damon Charles MILLER v Peter COTTER & ANOR

JUDGMENT

1 HIS HONOUR: These are proceedings commenced by summons relating to criminal proceedings being heard in the Local Court. The summons issued is based on a number of grounds. 2 Essentially grounds 1 to 3 seek a declaration that the proceedings, if continued, would be in the relevant sense unfair to the plaintiff, and seek a stay on the basis of procedural unfairness. The summons then goes on to seek orders in the nature of mandamus and certiorari. 3 The matters which are before the Local Court are there consequent upon civil proceedings which were heard and determined in this Court by Master Macready on 22 August 1995. 4 The matter before Master Macready was a matter in which a mortgagee sought possession of property. Before the learned Master the only issue was whether or not the principal sum under the mortgage had been repaid. Plainly enough, if it had, the mortgagee would fail. If it had not been paid, then the mortgagee would succeed in obtaining possession. 5 In the event, the learned Master held that the principal sum had not been repaid and made orders favourable to the mortgagee. I gather the matter was the subject of an appeal to the Court of Appeal and subsequently an application for special leave to the High Court. Ultimately the orders made by Master Macready were upheld. 6 The matter came into the criminal justice system because Master Macready made a finding that, amongst other things a receipt dated 4 July 1994 allegedly over the signature of one Henry Allsop, which was produced on behalf of the defendant in those proceedings, by the present plaintiff, Mr Damon Charles Miller, was in effect a forgery. This occasioned the learned Master to refer the papers to the Director of Public Prosecutions. 7 As a consequence of the learned Master's referral to the Director of Public Prosecutions, two charges were laid against the present plaintiff in the Local Court. The first charge was one laid pursuant to s 300(1) of the Crimes Act 1900 and the second charge was laid pursuant to s 300(2) of that Act. 8 The first charge is essentially one that the plaintiff here did make a false instrument, namely the receipt to which I have referred and the second charge is that the plaintiff used that false instrument, namely the receipt to which I have referred, to cause the mortgagee to accept the receipt as genuine and to act according to the mortgagee's credit. 9 Mr Allsop, whose signature allegedly appeared on the receipt of 4 July 1994 was acting as an agent for the mortgagee at the relevant time. 10 Prior to the proceedings commencing before the learned magistrate in the Local Court, the solicitor for the present plaintiff quite properly wrote to the Director of Public Prosecutions and indeed to the officer in charge of the investigation pursuant to s 167 of the Evidence Act seeking access to the original of the receipt of 4 July 1994 and other documents which had been in evidence before Master Macready in order that they may be tested by an expert. 11 The upshot of the letters written was that the plaintiff's solicitors were advised that the document had been lost. Subsequent searches carried out in this Court and apparently elsewhere have not been able to discover the documents which were tendered before the learned Master. 12 At the hearing before the learned magistrate a copy of the subsequent receipt of 4 July was tendered. Objection was raised but the learned magistrate pursuant to s 48(4) of the Evidence Act 1995 admitted the document into evidence. 13 A stay was shortly afterwards obtained and the matter now comes before this Court. 14 The nub of the application before this Court is that the plaintiff has been denied procedural fairness because the loss of the relevant documents, and in particular the receipt of 4 July 1994, has meant that he has been unable to obtain expert examination of the documents and thus is disadvantaged. Accordingly, he puts it that he is so disadvantaged that the relief sought should be granted. 15 I should say at the outset it seems to me that neither mandamus or certiorari can lie in this matter. Mandamus lies only when a mistake of law has occurred which shows that the determination arrived at in the exercise of the jurisdiction is nugatory and void so that the ostensible determination by the magistrate was not a real performance of the duty imposed by law upon him. See R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 228 at 242-243. In other words that the magistrate must have misunderstood the nature of the jurisdiction which he purported to exercise in the matter before him. See Ex parte Hebburn Limited; re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420. 16 The principles are generally covered in Waterhouse v Gilmore (1988) 12 NSWLR 270 at 277. I refer also to what had fallen from Priestly JA in Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 at 418. 17 Essentially the plaintiff must show a constructive failure to exercise jurisdiction, and in the instant case it is plain he is unable so to do and accordingly mandamus does not lie. 18 Certiorari requires that an error on the face of the record or a jurisdictional error must be demonstrated. Here, the record is thus far limited to the charge and the magistrate's reasons. It follows that no relevant error can be demonstrated in terms of certiorari ie an error has to be demonstrated that the learned master mistakenly asserted or denied the existence of jurisdiction. Accordingly, certiorari could not lie in a case such as this. 19 I might also state that in the matters contained in the summons said to found relief, relief is sought under s 112 of the Justices Act. For that section to apply there must be a final order. 20 In the present matter the question which has arisen is the admission of evidence, which is not a final matter that comes within the concept of s 112. Accordingly that section cannot assist the plaintiff here. 21 Thus the matter which remains for determination by this Court is whether or not the court should grant a permanent stay. It is to be assumed for the purposes of this judgment that the documents which have been tendered in evidence before Master Macready are permanently lost. 22 The principles relating to the grant of permanent stays have, over the years, following the decisions of the High Court in Jago v The District Court of New South Wales (1989) 168 CLR 23 are well founded. 23 The law was well summarised by Bell J in the Court of Criminal Appeal in R v Carver (1999) NSWCCA 135 which was determined by that court on 11 June of this year. There Bell J noted that the principles applicable to the question of stay of proceedings are these: