Abuse of process and disciplinary tribunals

In M v VCAT [2007] VSC 89, discussed in the next post, the Supreme Court of Victoria’s Justice Mandie provided a useful treatment of the law relating to abuse of process as applied to disciplinary tribunals. It is set out below in full.

’45 In Walton v Gardiner[16] (“Walton“) the High Court (Mason CJ, Deane and Dawson JJ) (Brennan and Toohey JJ dissenting) held that certain proceedings before the New South Wales Medical Tribunal had been properly stayed. The majority judgment said that it was settled that the New South Wales Court of Appeal’s supervisory jurisdiction with respect to “the administration of justice in New South Wales”[17] extended, in the absence of legislative intervention, to the making of an order staying proceedings in the Medical Tribunal on the ground that they constituted an abuse of the Tribunal’s process. Their Honours said:[18]

“The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. [Reference is then made to abuses of process constituted by cases where a court is a clearly inappropriate forum or where the continuation of proceedings would be unjustifiably vexatious and oppressive, having been disposed of by earlier proceedings.] The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police as ‘The inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people’.”

46 The majority went on[19] to refer to the breadth of the Court’s power as enunciated in Jago v District Court of NSW[20] (Jago“) in which case Mason CJ had referred to a court’s power to prevent its processes being employed in a manner which gave rise to unfairness and had quoted with approval the remarks of Richardson J of the New Zealand Court of Appeal in Moevao v Department of Labour[21] as follows:

“public interest in the due administration of justice necessarily extends to ensuring that the Court’s processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court’s processes may lend themselves to oppression and injustice.”

47 The majority in Walton also referred to the judgment of Gaudron J in Jago which stressed that the power of a court “to control its own process and proceedings is such that its exercise is not restricted to confined and closed categories, but may be exercised as and when the administration of justice demands”[22] and to her Honour’s additional comment:[23]

“that, at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand”.

48 The majority in Walton then went on to deal with the application of these principles to the Medical Tribunal and said:[24]

“In its application to the Tribunal, the concept of abuse of process requires some adjustment to reflect the fact that the jurisdiction of the Tribunal, which is not a court in the strict sense, is essentially protective – i.e. protective of the public – in character. Nonetheless, the legal principles and the decided cases bearing upon the circumstances which will give rise to the inherent power of a superior court to stay its proceedings on the grounds of abuse of process provide guidance in determining whether, assuming jurisdiction to do so, the circumstances of a particular case are such as to warrant an order being made by the Supreme Court staying proceedings in the Tribunal on abuse of process grounds… …

… The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process[25] similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners.”

49 In relation to the question whether a proceeding should be stayed as an abuse of process because it can be seen to be “foredoomed to fail”, the members of the appeal division of this Court had something to say in R v Smith[26]. Brooking J as he then was said:[27]

“It is not a use of the process of the courts for a purpose alien to the administration of justice under law (Williams v Spautz (1992) 174 CLR 509, 520) to make an unsuccessful claim if all that can be said is that the claim failed because the plaintiff or prosecution did not make out a case to answer. Process is not abused merely because it is employed without success. The very function of the courts is to hear and determine claims, sound and unsound, and to filter out those which are unsound, not (save in extreme cases, where a stay or other summary order may be appropriate) by declining to deal with them in the usual way, but by hearing and determining them. … Time and again it has been said that it is only in exceptional circumstances that a proceeding, civil or criminal, will be stayed on the ground that it constitutes an abuse of process…”

50 His Honour added:[28]

“I know of no previous case, reported or unreported, in which it has even been argued by an applicant, let alone judicially determined, that a civil or criminal proceeding should be stayed as an abuse of process because it will not be possible for the plaintiff or prosecution to prove some fact essential to the judgment sought.”

51 In the same case, Byrne J said:[29]

“To my mind, however, the no case test simpliciter is not the appropriate one for a case such as the present. It is evident from the expressions used in the passages quoted above from Walton v Gardiner that, for a successful stay application of the kind before us, the case must be not merely incapable of success but ‘clearly foredoomed to fail’; or in the words of Brennan J the vice is the institution of proceedings ‘which will inevitably and manifestly fail’. … It is sufficient that I refer to the dictum of Dixon J in Cox v Journeaux (No.2) at 720;

‘The inherent jurisdiction of the Court to stay an action as vexatious is to be exercised only when the action is clearly without foundation and when to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff …’”

52 In Williams v Spautz[30] the High Court upheld a stay of prosecutions in circumstances where the abuse of process was constituted by bringing the proceedings for a collateral purpose namely not to prosecute them to a conclusion but to use them to obtain some advantage unrelated to the purpose of the proceedings. 53 I think that it was common ground, and in any event the cases establish, that abuse of process in this context comprehends any proceeding that is being used in a way that is manifestly unjust, oppressive or unfair to a party to the proceeding, or would otherwise bring the administration of justice into disrepute among right-thinking people. The categories of such cases are not closed although they include cases where the proceeding is foredoomed to fail or is being used for an improper purpose. In the case of disciplinary proceedings, it is necessary for a court in considering whether there is any abuse of process to take into account the important factor that a disciplinary proceeding is protective of the public.’

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