Moss v McIlveen [2010] NSWSC 1050

New South Wales Supreme Court

CITATION : Moss v McIlveen [2010] NSWSC 1050 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 16 August 2010

JUDGMENT DATE : 16 September 2010

JURISDICTION : Common Law

JUDGMENT OF : Adams J

DECISION : Leave refused. Summons dismissed with costs.

CATCHWORDS : Application for leave -- private prosecution for perjury – necessity to show reasonable prospects of success – mere attempt to relitigate lost case.

LEGISLATION CITED : Crimes Act 1900 ss 327 & 338 Director of Public Prosecutions Act 1986 ss 9 & 10

CATEGORY : Principal judgment

PARTIES : William Wayne Moss (aka William Walter Miller) (P) Luke McIlveen (D)

FILE NUMBER(S) : SC 2010/050095

COUNSEL : In person (P) D R Sibtain (D)

SOLICITORS : Self represented (P) Blake Dawson (D)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADAMS J

THURSDAY, 16 SEPTEMBER 2010

2010/050095 WILLIAM WAYNE MOSS v LUKE McILVEEN

JUDGMENT

HIS HONOUR:

Introduction 1 The applicant William Wayne Moss, also known as William Walter Miller, commenced proceedings on 25 February 2010 by summons seeking leave under s 338(2) of the Crimes Act 1900 to undertake the prosecution, as a private individual, of Mr Luke McIlveen and Miss Cindy Wockner, who at the time of the matters alleged to give rise to the proceedings were journalists. On 28 May 2010 the applicant discontinued the proceedings in respect of Ms Wockner but still seeks leave to prosecute Mr McIlveen. 2 The applicant alleges that the defendant lied when he gave evidence in the District Court during proceedings bought by the applicant against Nationwide News Pty Limited for breach of contract. In brief, the applicant claimed that he had information as to how the marijuana came to be in the luggage of Schapelle Corby when it was searched at Bali International Airport, Indonesia, in 2004, she denying that it was hers or that she knew it existed before it was discovered. The applicant first spoke to Ms Wockner, a reporter on the Daily Telegraph, about his information and was referred to the Sydney bureau of the newspaper. Shortly after, he spoke with the defendant several times. He alleged that the defendant agreed that the newspaper would pay him $250,000 for his story and that, relying on that agreement, he then divulged the information that was later published on 27 and 28 July 2005. The applicant demanded payment of the alleged agreed amount on 28 October 2005 and then again on 15 February 2007 but no money was paid to him. 3 The applicant's case against Nationwide News Pty Limited was heard in the District Court and on 31 January 2008 judgment was given in favour of the defendant plus costs. In addition to documentary material, oral evidence was given by the applicant (who was unrepresented) and the two journalists. The defendant's evidence was of critical importance. He deposed, in effect, that there was no agreement to pay anything at all to the applicant; to the contrary, the applicant was told that he would not be paid anything for his information. In substance, the trial Judge accepted this evidence and rejected that of the applicant. 4 The applicant by notice of motion filed 6 May 2008 in the Court of Appeal, sought a referral for legal assistance and an extension of the time within which to lodge a notice of appeal. On 16 June 2008, Beazley JA dismissed the notice of motion with costs. The applicant sought a review of that decision but on 8 September 2008 the Court of Appeal dismissed his notice of motion. 5 In what follows, all references to evidence concern what was said in the District Court proceedings unless otherwise indicated.