C A Sweeney v Australian Securities and Investments Commission [2001] NSWCA 106

New South Wales Court of Appeal

CITATION : C A Sweeney v Australian Securities and Investments Commission [2001] NSWCA 106 FILE NUMBER(S) : CA 40164/01 HEARING DATE(S) : 9 April 2001 JUDGMENT DATE : 9 April 2001

PARTIES : Charles Augustine Sweeney - Claimant Australian Securities and Investments Commission - Opponent JUDGMENT OF : Giles JA at 1

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT ED 3339/99 FILE NUMBER(S) : LOWER COURT Austin J JUDICIAL OFFICER :

COUNSEL : I Barker QC & M Gorrick - Claimant M Pembroke SC - Opponent SOLICITORS : Noel F Bracks & Co - Claimant Jan Redfern - Opponent CATCHWORDS : STAY OF PROCEEDINGS - whether what was said as to one ground operated as a res judicata for another ground - on facts, did not do so. ND CASES CITED: Laurie v Carroll (1958) 98 CLR 310 DECISION : Notice of Motion filed 5 April 2001 is dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40164/01

GILES JA

Monday 9 April 2001 CHARLES AUGUSTINE SWEENEY v AUSTRALIAN SECURITIES & INVESTMENT COMMISSION JUDGMENT

1 GILES JA: This application is more limited than at times the claimant's submissions suggested. The explanation for it is as follows. 2 On 27 July 1999 the opponent commenced proceedings against the claimant by filing a statement of claim. On 24 November 1999 it obtained an order for substituted service of the statement of claim. On 23 December 1999 the claimant filed a notice of motion claiming various orders appropriate to his contention that the Court had no jurisdiction in the proceedings commenced by the statement of claim. He sought an order that the statement of claim be set aside; additionally or alternatively, an order that the order for substituted service be set aside; and additionally or alternatively, orders in the nature of declarations that the statement of claim had not been duly served on him and that the Court had no jurisdiction over him in respect of the subject matter of the proceedings. 3 The claimant's notice of motion was fixed for hearing on 27 February 2001. On 16 February 2001 the opponent filed a notice of motion returnable on 27 February 2001, seeking in part orders in relation to the claimant's notice of motion. Relevantly, the opponent sought an order that the claimant's notice of motion be stayed or dismissed generally, and in the alternative an order, stated to be in the event that the order for substituted service was set aside, extending the period of the validity of the originating process for a time to enable personal service. 4 Austin J, before whom the proceedings had been listed for 27 February 2001, made an order vacating that date as the date for hearing the claimant's notice of motion and another order setting down the opponent's notice of motion for hearing on that day. In circumstances not revealed, the opponent's notice of motion came to be argued before his Honour on 1 March 2001. His Honour delivered judgment on 6 March 2001. 5 Austin J's reasons took each of the ten grounds stated in the claimant's written submissions for the purposes of the hearing as the grounds on which the claimant contended that he was entitled to resist the opponent's notice of motion. The grounds obviously enough went into why the claimant would contend that he was entitled to the relief he sought in his own notice of motion. Austin J considered that all but one of the grounds did not avail the claimant. The one ground which his Honour considered was arguable, as indeed was conceded before his Honour by the opponent, was the claimant's fifth ground expressed in the terms, "Whether in the circumstances of the case the Court has jurisdiction, the defendant not having been served personally." 6 This was occasionally referred to before me as the Laurie v Carroll [(1958) 98 CLR 310] question, raising the circumstances in which the Court could have jurisdiction in relation to a defendant not served personally. It appears that in an earlier hearing in the proceedings before Young J his Honour had indicated that the answer to the question was of the nature "sometimes yes and sometimes no". 7 Austin J ended his reasons as follows: "For these reasons, my view is that nine of the grounds advanced by the defendant are either wholly inappropriate, or manifestly hopeless and doomed to fail, because they are based on demonstrably incorrect statements of fact or misapprehensions about relevant legal principles. Consequently, nine of the defendant's grounds disclose no reasonable 'cause of action' for setting aside the orders for substituted service. However, in light of counsel's concession about the tenth ground, I cannot make an unqualified order staying or dismissing the defendant's notice of motion. Counsel invited the Court to make an order dismissing or staying the defendant's application save in respect of that single ground. There is no direct authority in Part 13 Rule 5 for the Court to make an order that does not dismiss or stay a claim to relief, but merely limits the grounds upon which the claim can be made. However, the Court has the power to give directions to control its own processes, as part of its inherent jurisdiction as a superior court of record: Richie's Supreme Court Practice (looseleaf), para [s 23.3] and cases there cited. In my opinion that is a sufficient source of power for me to make the kind of order proposed by counsel for the plaintiff. Counsel for the defendant made it crystal clear that the grounds for setting aside the orders for substituted service, as set out in his written submission, have not been fully developed and are not necessarily exhaustive. Counsel submits that, because of the huge bulk of the documentary evidence that has been under review, he has not yet had the time to consider all possibilities, and that in those circumstances I should not pre-empt him from putting forward new grounds. In my view, however, an enterprise which depends on the consideration of massive evidence is misconceived from the outset, because of the limited scope of the review authorised by Part 11 Rule 8 and cases such as Agar v Hyde . The plaintiff, bearing the onus in the present application, submits that there is no conceivable way of putting the defendant's case on the application of 23 December 1999, which provides a reasonable basis for success on the application. I find that submission plausible. The defendant has had the opportunity to respond by pointing to some grounds which he would develop at the hearing of his application, and has done so. Apart from the fifth ground, none of them is a reasonable basis for the relief that the defendant's application seeks. In those circumstances, I accept the plaintiff's submission that there are no other grounds which would provide a reasonable basis for the defendant to succeed, and consequently I should make orders and directions confining the defendant's application to the fifth ground alone."