New South Wales Supreme Court CITATION : BHAGAT v MURPHY & ORS [2002] NSWSC 324 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20816/01 HEARING DATE(S) : 25 March 2002, 26 March 2002 JUDGMENT DATE : 26 March 2002 Hari Bhagat (Plaintiff) v John William Murphy (First Defendant) Michael Wilkins (Second Defendant) Tyndall Funds Management (NSW) Ltd (ACN 003 326 654) (Third Defendant) Tundall Australia Ltd (ACN 000 015 949) (Fourth Defendant) Guiness Peat Group plc (ACN 003 209 836) (Fifth Defendant) David O'Bryen (Sixth Defendant) Gary Weiss (Seventh Defendant) Sir Ron Brierley (Eight Defendant) Global Custodians Ltd (ACN 003 588 378) (Ninth Defendant) PARTIES : Westpac Custodian Nominees Ltd (ACN 002 861 565) (Tenth Defendant) Dennis Fox (Eleventh Defendant) Joe Bracher (Twelfth Defendant) Michael Good (Thirteenth Defendant) Elizabeth Grinston (Fourteenth Defendant) Leo Tutt (Fifteenth Defendant) John Mallick (Sixteenth Defendant) Harold Bentley (Seventeenth Defendant) John English (Eighteenth Defendant) Brian Preston (Ninteenth Defendant) Robyn Ann Chalmers (Twentieth Defendant) Tania Noonan (Twenty-first Defendant) Peter Young (Twenty-second Defendant) Nicholas Cowdery (Twenty-third Defendant) JUDGMENT OF : Adams J at 1 Plaintiff in person COUNSEL : Mr B Preston SC (First to Fourth Defendants, Sixth to Ninth Defendants, Eleventh to Eighteenth Defendants and Twentieth & Twenty-first Defendants) Mr S Knight (Fifth Defendant) Mr T H Barrett (Twenty-second & Twenty-third Defendants) Plaintiff in person SOLICITORS : Mallesons Stephen Jaques (First, Second, Third, Fourth, Sixth, Seventh, Eighth , Ninth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Twentieth and Twenty-first Defendants) I V Knight (Twenty-second & Twenty-third Defendant) Coudert Brothers (Fifth Defendant) LEGISLATION CITED : Supreme Court Rules DECISION : Applications refused; Proceedings transferred to Equity Division THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J TUESDAY 26 MARCH 2002 20816/01 - BHAGAT AS A BENEFICIARY OF THE MERIDIAN INVEST TRUST & SHAREHOLDER OF TYNDALL AUST LTD & GUINNESS PEAT GROUP PLC v JOHN WILLIAM MURPHY AS TRUSTEE & UNITHOLDER OF THE MERIDIAN SUB-TRUSTS & 22 ORS 20817/01 – BHAGAT v GLOBAL CUSTODIANS LTD & 13 ORS 20865/01 – BHAGAT AS A SHAREHOLDER OF TYNDALL AUST LTD & GUINNESS PEAT GROUP PLC & A BENEFICIARY OF THE MERIDIAN INVEST TRUST v ROYAL AND SUN ALLIANCE LIFE ASSURANCE AUSTRALIA LTD & 3 ORS 20095/02 – BHAGAT v PETER YOUNG & 12 ORS 20106/02 – BHAGAT v JOHN WILLIAM MURPHY AS TRUSTEE OF THE MERIDIAN INVESTMENT TRUST NO 4 & ORS JUDGMENT 1 HIS HONOUR: Application is made by the plaintiff, Hari Bhagat, to strike out the notices of motion of Peter Young who is one of a number of defendants in proceedings brought by Mr Bhagat in this Court (numbered 20816/01, 20817/01 and 20095/02). Those proceedings, so far as Mr Young is concerned, allege what I might generally call fraudulent behaviour. 2 The notices of motion seek an order pursuant to Part 13 Rule 5 of the Supreme Court Rules that the proceedings be dismissed or, alternatively, stayed on the grounds that no reasonable cause of action is disclosed or the proceedings are frivolous or vexatious or are an abuse of process of the court. 3 Mr Bhagat submits that this Court has no jurisdiction to consider such an application by virtue of the provisions of section 88 of the Supreme Court Act, 1970 which is in the following form - " Common Law Claim – fraud, defamation, etc 88. Proceedings on a common law claim in which there are issues of fact - (a) on a charge of fraud against a party; or (b) on a claim in respect of defamation, malicious prosecution, false imprisonment, seduction or breach of promise of marriage, shall be tried with a jury." 4 In my opinion, s 88 concerns the trial of proceedings on a specified claim in which there are issues of fact which are permitted to go to trial. In no sense does it reflect on the jurisdiction of the Court to exercise its powers under Part 13 Rule 5. I might say that the powers given by Part 13 Rule 5 are at all events inherent powers of the Court. 5 I note that s 88 was repealed by Act No 124 of 2001. I have made this judgment upon the assumption that s 88 applies to the present litigation. I should not be taken, however, as determining that question. 6 Mr Bhagat also submitted that the notices of motion filed on Mr Justice Young's behalf should be heard only by the Chief Justice. Even assuming I had the power to do so, which I doubt, there is no basis shown upon which such an order could be justified. Accordingly, I rejected the application. The order seeking dismissal of the notices of motion as frivolous and vexatious should also be refused. They raise matters of substance and I propose to hear and determine them. 7 No argument was tendered as to the application for leave to join further defendants and amend the statement of claim consequentially. I do not determine that application and it thus remains outstanding. Also outstanding is the application by Mr Bhagat to strike out notices of motion filed by other defendants in relation to their joinder in the various statements of claim. For the reasons sufficiently stated in the transcript, all outstanding applications both by Mr Bhagat and the defendants are transferred to the Equity Division of the Court. 8 I make no order as to costs of this notice of motion. ********** Last Modified: 05/06/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.