Rapson v Wright [1999] NSWSC 566

New South Wales Supreme Court CITATION : Rapson v Wright [1999] NSWSC 566 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 13988/95 HEARING DATE(S) : 7 June 1999 JUDGMENT DATE : 7 June 1999

Dr Philip John Rapson (P1) Jennifer Margaret Rapson (P2) PARTIES : William Edwin Wright (D1) Jeffrey Ahern (D2) Kevin Maughan (D3) JUDGMENT OF : Hamilton J

LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 358/95 LOWER COURT JUDICIAL OFFICER : Maughan M

M S Jacobs QC and A S Kostopoulos (P1 & 2) COUNSEL : P I Lakatos (D1 & 2) Submitting appearance (D3) SOLICITORS : Greg Walsh & Co (P1 & 2) Crown Solicitor (D1 - 3)) CATCHWORDS : APPEAL AND NEW TRIAL [107] - Practice and procedure - New South Wales - Stay of proceedings - Subject matter likely to be destroyed - Special circumstances. Jennings Construction Ltd v Burgundy Royale Pty Ltd [No 1] (1986) 161 CLR 681 CASES CITED : Malubel Pty Ltd v Elder (1998) 73 ALJR 135 Rapson v Wright [1999] NSWSC 534 DECISION : Application for stay of proceedings refused.

RapsonWright7jun99 11/06/99 9:07

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J MONDAY, 7 JUNE 1999

13988/95 PHILIP JOHN RAPSON & ANOR v WILLIAM EDWIN WRIGHT & ORS

JUDGMENT His Honour: 1 On 19 December 1997 I made orders permanently staying proceedings on two informations that were before the Local Court at Sutherland, for reasons which I subsequently gave. Those orders were entered on 13 October 1998. On the 2 June 1999 I made orders that those permanent stays be lifted, insofar as necessary to permit the Local Court, in each case, to dismiss the information and to hear and determine an application by the defendant for an order in respect of the costs of the proceedings in the Local Court: Rapson v Wright [1999] NSWSC 534. I am now asked to stay that order lifting the permanent stays pro tanto pending the lodgement and determination of an application to the Court of Appeal for leave to appeal from those orders. Leave to appeal is necessary because the orders lifting the permanent stays are interlocutory in nature. 2 This matter first came before me just after noon today and it is now just after 2pm. The proceedings upon the informations were listed before the learned Magistrate in the Local Court at 2pm, to ask his Worship to make orders for dismissal of the informations consequent upon my partial lifting of the permanent stays. A request has apparently been made to the Registrar of the Local Court for the matter to be stood down till 3pm, but it is uncertain whether that has occurred, and I do not know whether or not the Magistrate is at the present time embarking on consideration of the application for dismissal. Furthermore, on this very day there is fixed for trial in the District Court at Sydney proceedings for malicious prosecution by the present plaintiffs against the first and second defendants in the present proceedings arising out of the bringing and fate of the informations before the Local Court. That matter has been assigned to her Honour Acting Judge Boland as trial Judge, and is also scheduled to be called on for trial at 2pm. 3 Mr Lakatos, of counsel for the first and second defendants, has moved for the stay of proceedings on the basis that, if I do not grant it, the subject matter of the application for leave to appeal to the Court of Appeal will be destroyed and any appeal consequential upon such leave, if granted, will be rendered nugatory: see Jennings Construction Ltd v Burgundy Royale Pty Ltd [No 1] (1986) 161 CLR 681; Malubel Pty Ltd v Elder (1998) 73 ALJR 135. There is force in what Mr Lakatos says and that would in many or most circumstances lead to a stay being granted. However, this is a very unusual case. The gravamen of my findings in my original judgment was that the informations laid in the Local Court were an abuse of process by reason of the fact that they were laid, not for the proper purpose of duly enforcing the criminal law, but for an improper motive. Details of the conclusions that I came to as to that matter are set out in my original reasons for judgment. That original judgment of mine was not appealed from. 4 The application which led to the partial lifting of the stays was brought by the present plaintiffs because it is to be contended on behalf of the first and second defendants in the proceedings in the District Court that the proceedings on the informations were not, in the sense required in the law of malicious prosecution, terminated in favour of the present plaintiffs by the granting of a permanent stay by this Court, but would only be so terminated by a dismissal of the informations in the Local Court. 5 The plaintiffs brought the application here for the lifting of the stay at a very late time. It was as long ago as last October that they first went to the Magistrate to ask him to dismiss the informations and, not surprisingly, procured the reaction from his Worship that he was unable to do so because the proceedings before him were permanently stayed by the Supreme Court. Mr Walsh, solicitor for the plaintiffs, who has in part conducted this application before me on their behalf (Mr Jacobs of Queen's Counsel being able to be present for only a part of the argument), frankly and fairly avows that that delay lies in his court. He raised the matter with the previous senior counsel, Mr Byrne SC, last year after the Magistrate's refusal to dismiss the informations, but did not take it up again until comparatively recently, when it was raised with him by Mr Jacobs QC. The urgency and the peculiar situation at this very moment, that the differences between these parties may be being agitated at the same time in three courts in this city, namely this Court, the District Court before her Honour Acting Judge Boland, and the Local Court before Magistrate Maughan, is in part produced by this tardiness. On the other hand, it must be said that the present application for a stay of proceedings has not been brought promptly in the circumstances. My judgment lifting the stays was delivered ex tempore on 2 June 1999. The written reasons were unable to be provided to the parties after correction until 4 June 1999. Mr Lakatos was asked for written advice on behalf of his clients and understandably was not able to give it until this morning, when the decision was taken to apply for the stay. However, the reasons are short and I hope reasonably clear. They were delivered in full in open court last Wednesday. Even before a final decision was taken to commit to an application for leave to appeal, in the circumstances that the District Court proceedings were coming on on the following Monday, the proper course in my view would have been for an application to be made immediately or promptly for a stay, so that there was more time to move in respect of the District Court matter. The plaintiffs are now, I am told, in a situation where a witness has been brought from Adelaide for the District Court proceedings, at considerable expense and in circumstances where it may be difficult to procure the witness's return at a later time. 6 The consequences of either the grant, or the refusal, of the stay for the proceedings in the District Court are not entirely clear. Mr Jacobs of Queen's Counsel, upon my suggesting that it might be inefficacious at this time to plead the dismissal of the informations if procured, since that would have occurred after the initiation of the proceedings in the District Court, said it would be his contention that this was a matter which, under the District Court Rules, could be proved, although occurring after the commencement of the proceedings, and that it was arguable that, whether it was led in support of the existing cause of action or as the formulation or bringing of a new cause of action, it could be pleaded and used at the trial in the District Court (see DCR Pt 9 r 11, Pt 17 r 4). Equally it is suggested, and it may well be so (I have not had time to look into it), that the orders for permanent stay were in fact a sufficient termination of the proceedings before the Magistrate, particularly bearing in mind the ground upon which they were made, for the plaintiffs to succeed, if their case were otherwise proved in the District Court. The situation thus is that it is far from certain whether the grant or non-grant of a stay will have an effect upon the result of the District Court proceedings. 7 I find the decision as to the stay pending appeal quite a difficult one. As I say, the destruction of the subject matter of a prospective appeal is a consideration which usually weighs heavily with courts. However, I bear in mind that, despite the plaintiffs' contribution to the delay by their late bringing of the application for lifting of the permanent stays, the very difficult situation today, with the matter in three courts simultaneously, is produced, at least in part, by the first and second defendants failing to make it plain, when judgment on the application to lift the stays was delivered, that an application for leave to appeal would or might be made and to make or foreshadow at that time an application for a stay of proceedings which could have been dealt with before this 11th, or perhaps it is the 12th, hour. I also bear in mind that, in a sense, the defence sought to be pleaded is not a highly meritorious one. It may be that, as a formal matter upon which the courts may be bound to act, a permanent stay is not a termination within the law relating to malicious prosecution. However, the merits of the prosecutions were made plain in my unappealed judgment, in which I found that the prosecutions were an abuse of process, so that on any basis the informations in the Local Court ought not proceed to conviction. Bearing in mind all the circumstances of the case, including the factors that I have mentioned in this paragraph, the conclusion that I have come to in this difficult situation is that the stay of proceedings ought be refused. 8 The orders that I make are: 1 I grant to the first and second defendants leave to file in Court the notice of motion dated today. 2 I dismiss the notice of motion. 3 I order the first and second defendants to pay the plaintiffs' costs of this motion.