Abrahams & Anor v Ryan

[2000] HCATrans 212

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M54 of 1998

B e t w e e n -

ALAN MAURICE ABRAHAMS and KERRY ROCHELLE ABRAHAMS

Applicants

and

WAINRIGHT RYAN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 26 MAY 2000, AT 12.37 PM

Copyright in the High Court of Australia

MR A.M. ABRAHAMS and MRS K.R. ABRAHAMS appeared in person.

MR A.C. NEAL:   I appear for the respondent.  (instructed by Wainright Ryan)

GLEESON CJ:   Is it Mrs Abrahams or Mr Abrahams is arguing the case?

MRS ABRAHAMS:   Mrs Abrahams.

GLEESON CJ:   Yes, Mrs Abrahams.

MRS ABRAHAMS:   Your Honours, I am Kerry Abrahams, I am a litigant in person and I make the submission on behalf of both my husband, Alan, and myself.  This matter seeking special leave to appeal to the High Court of Australia concerns three issues that should be of major concern to the administration of justice and, by implication, the public interest.  These concerns should be of sufficient gravity to warrant the granting of special leave.

Before I move to these three issues, I would like to say that this proceeding started out as a simple summary taxation of costs, with the prime objection being that Magistrates Court scale should apply to the Supreme Court proceeding 4995 of 1994.  Our objection was that the valuation of the relief sought was well within the scope of the Magistrates Court and furthermore, no warning was given to us that the Magistrates Court was available and that therefore we may not be able to recover our costs at Supreme Court scale.  We were denied our democratic right of freedom of choice and were put into a position of potential financial disadvantage.  I refer your Honours to the letter and file notes of the respondent at pages 1 through to 5 of the applicants’ supplementary documents.  Their own file notes show that this was clearly a Magistrates Court matter encompassing a backyard fence and the collection of $434.

Coming back now to the three issues that should concern this Court, firstly I would like to mention the abuse of process that has occurred at the hands of the respondent.  We succeeded in obtaining an authenticated order from the taxing master which is at page 1 of the application book.  That order dated 10 November 1995 states:

The Court found that by reason of the negligence of the Defendant in that the Defendant failed to advise the Plaintiff that proceedings could have been instituted in the Magistrates Court, the costs incurred on the Supreme Court Scale are excessive and the costs of the Defendant should be taxed or assessed at a gross sum in accordance with the Magistrates Court Scale pursuant to O 63 r 71.

It is clear that the taxing master has determined the scale, the assessment of lump sum, the negligence and the causation.

From that order the respondent lodged what is now known and admitted by them at 2.4 on page 92 of the respondent’s summary of argument to be an incompetent appeal dated 14 November 1995, which is on page 2 of the application book.  I now quote from this:

The Court of Appeal was (correctly) not concerned with the decision of the Taxing Master (Master Bruce).  The Respondent had sought to appeal against an “adverse finding” of Master Bruce but Beach, J had declined to entertain the appeal on the basis that it was not competent.  The inquiry and report ordered by Beach, J (and subsequently performed by Master Wheeler) was in relation to the present Applicants’ Order 63.23 summons and nothing else.

There is no order from Beach J stating this.

There were a number of effects from this action.  Firstly, it put us in a position of bringing our summons, on page 3 of the application book, for the repayment of costs already paid out to third parties before the judge who was hearing their appeal.  The reason for this is clear in law, as we knew all matters relevant between the parties should be brought before the court in one hearing.  We would have been unable to seek action to recover our costs to the third parties and a fresh proceeding in the future.

Secondly and very importantly, the appeal being incompetent and unable to be prosecuted, there obviously was another reason or reasons.  This, we believe, was in line with the authority of Williams v Spautz.  The incompetent appeal had an ulterior motive or motives.  We believe some of these were:  one, to exert lateral pressure on us to capitulate and settle the proceeding on terms other than the taxing master had ordered.  That is, to settle at Supreme Court scale.  Two, that if we did not succumb to that lateral pressure, the respondent had nothing to lose financially in proceeding to continue with the matter before a judge.  They were not exposed to the risk of a costs order against them as we were litigants in person and they had the added advantage that if they could not obtain costs orders against us, they could collect those costs as solicitors representing themselves at full scale fees.  That pressure of further costs being ordered against us was, we believe, part of the tactical lateral pressure, again in line with Williams v Spautz.

Logically we were also pressured by the effect of the incompetent appeal, being that as litigants in person we had to spend many days in the Supreme Court hearings together with many days of preparation which, as family people having to earn a living on a daily basis from physical work, we found exceedingly hard to bear.  I now quote to your Honours from William v Spautz, a copy of which you have in front of you, page 509, the highlighted section:

(2) Proceedings are brought for an improper purpose, and thus constitute an abuse of process, where the purpose of bringing them is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers.  An improper act by the party instituting the proceedings is not an essential ingredient in the concept of abuse of process.

I also quote from where I have highlighted on page 536:

The general principle applicable when a plaintiff intends to obtain a result outside the scope of the remedy was stated by Lord Evershed in In re Majory:

“court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused.”

I also turn back to page 510 where Brennan J stated:

An abuse of process occurs when the only substantial intention of a plaintiff or informant is to obtain an advantage or other benefit, to impose a burden or to create a situation that is not reasonably related to a verdict that might be returned or an order that might be made in the proceeding.

It is clear from the statements of your brother High Court Judges in Williams v Spautz that an abuse of process is viewed extremely seriously by the High Court and we contend that the lodging of an incompetent appeal from the taxing master was not in the interests of justice and therefore cannot be in the public interest.

I now ask your Honours to turn to page 520.  I have highlighted the section.  I believe this is a most important statement:

As Lord Scarman said in Reg v Sang, every court is “in duty bound to protect itself” against an abuse of its process.  In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process…..The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike.  The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice.

GLEESON CJ:   Mrs Abrahams, the proceedings that you say were an abuse of process was the appeal to Justice Beach.

MRS ABRAHAMS:   It was the lodging of the incompetent appeal against the order of the taxing master to Justice Beach.  That order is on page 2 of the application book, your Honours.  It does not follow the rules.

GLEESON CJ:   What I am concerned about is this:  we are here concerned with whether there is error in the reasoning of the Court of Appeal of Victoria.

MRS ABRAHAMS:   We follow on to that, sir.

GLEESON CJ:   Well, that is our job, to see whether there is an error in the decision of the Court of Appeal.  Yes, go ahead.

MRS ABRAHAMS:   I understand, sir.  The quotation that I have read out to your Honours, together with the respondent’s actions of lodging an incompetent appeal, should be sufficient alone to grant us leave to appeal because of the far-reaching ramifications that were stated in the above passage which I have just read.  However, the tactic of instigating a proceeding that was incompetent, and therefore abuse of process, to exert pressure on us did not work and the respondents found themselves having to go on with the proceeding.

This is where the problems started to arise.  An inquiry was ordered by Beach J and conducted by Master Wheeler.  At the outset of that inquiry – and I point your Honours to page 30 of the applicants’ supplementary documents.  These are pages 3 and 4 from the total of 375 of the transcripts of that inquiry.  As your Honours can see, we were informed that it went on appeal and the proceedings were a rehearing de novo.  The respondents and their counsel did not correct the Master.  At this point I will now pause and bring your Honours’ attention to the papers in front of you, one being Halsbury’s Laws of Australia.  These clearly state that the obligations of a solicitor, of duties to the court, the duties “in respect of legal processes and proceedings and the duty of candour and fairness”.  I quote briefly:

Duties in respect of legal processes and proceedings.  A lawyer owes a duty to the court not to abuse the court’s processes by the improper initiation or maintenance of court proceedings.  Further, a lawyer owes a duty to the court to refrain from conduct which may tend to defeat justice and must not consciously mislead the court.

Also, “DUTIES TO THE COURTS”:

In addition to the duty to uphold the law a lawyer also owes duties to the court arising out of the special relationship that a lawyer has with the court.  The duties owed to the court override the duties owed by a lawyer to a client or to other persons.  The duties to the court include responsibilities in respect of legal processes and proceedings and duties of candour and fairness.

These quotations are indisputable.

I also refer your Honours to the Court of Appeal judgment summary, second page, which states:

By notice dated 14 November 1995 Wainwright Ryan appealed to the judge in the Practice Court –

Nowhere does it state that the appeal was declined to be heard.  The result of the Master erroneously stating that he was hearing their appeal, and the respondent’s silence as to the competence of the appeal, and the now admission by the respondent that the appeal was declined to be heard was that we at all times believed that their appeal was competent and part of the proceedings.

This state of affairs was maintained into the final hearing before Mr Justice Beach and before the hearing before the Court of Appeal.  I refer your Honours to page 40 of the appellants’ supplementary documents, the appellants’ argument.  The opening sentence stated, “Justice Beach was hearing an appeal”.  As you can see, even at this late stage no disclosure had been made.  The respondent being solicitors and ourselves being litigants in person, the respondent had the task of producing for the Court of Appeal a summary of proceedings and issues and summary of facts for the use of Court of Appeal.  Nowhere in the document that they had prepared did they state that their appeal had been regarded as incompetent and declined to be heard.

This statement of facts and issues for the use of the Court of Appeal is basically in line with a sworn affidavit signed by Michael Augustus Ryan dated 29 July 1998.  I refer your Honours to that sworn affidavit at pages 42 to 47 of the applicants’ supplementary documents.  At page 43 line 25, “The Defendant gave Notice of Appeal”.  Nowhere in this sworn document does it state that the appeal was declined to be heard and/or incompetent.  The affidavit gives the impression that the appeal has stayed alive.  This affidavit and the summary of the receiving of facts for the use of the Court of Appeal are deceptive by admission.  It was only after the Court of Appeal judgment was published that we became aware that their appeal was incompetent, and that was stated in the appellants’ summary of argument submitted to the High Court.  But it was not until the respondent answered at 2.4 in their summary of argument that we were fully aware and able to prepare this matter properly.

Our answering applicants’ reply was necessarily done in a rush, as we only had a limited few days, but we could see then how Master Wheeler’s conclusion fitted harmoniously with the estoppel that we had pleaded.  We were also able to explain in the reply why Brooking J had been so puzzled and unable to explain an apparent inconsistency in the conclusion of the Master.  So at the current moment, your Honours, we have placed before you a clear cut abuse of process in line with Williams v Spautz, together with an outline of the deceptive conduct of the respondent.

The third item is the question of the law of estoppel as outlined in our applicants’ reply.  We do not believe it is necessary to fully cover what we have written.  However, I refer your Honours to the case of Hoysted v Federal Commissioner of Taxation and I quote from page 297:

To this it was answered, to put the matter briefly, that the former decision was right upon its merits, but that, whether so or not, the respondent was estopped by the judgment already pronounced.  If this argument be sound, there is an end of the case; and it will be unnecessary to enter upon the merits of the difference between the parties upon the construction of the statute.

In the opinion of their Lordships the contention of the appellants is sound, and the respondent is estopped by judgment.

On page 299, and I further quote:

Very numerous authorities were referred to.  In the opinion of their Lordships it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different assumption of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact.  Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances.  If this were permitted, litigation would have no end, except when legal ingenuity is exhausted.  It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle.  Thirdly, the same principle…..applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed.  In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which has not been taken.  The same principle of setting parties’ rights to rest applies, and estoppel occurs.

Your Honours, one further quote from Reg v Balfour at page 256 which states:

(ii) The principle of estoppel had been applied to preclude the bringing of an action which, if it succeeded, would result in a judgment which conflicted with an earlier judgment.

We have set before this honourable Court three items which should be of major concern in the administration of justice and the public interest.  We believe leave to appeal should be granted to us.  This will also allow the Court the opportunity to examine and settle the scope of the application of rule 63.23.  The facts in this case are not in dispute and we believe it can be determined on the documents.  We reject the respondent’s statement at 3.3 of their summary of argument that we are unimpressive witnesses and therefore it was open to Beach J to find as he did.

Master Wheeler did not criticise our honesty, credibility or candour.  Master Wheeler’s report and conclusion was determined on the documents and the facts they contain.  We believe that the facts are contained in the documents of which there is no dispute between the parties and this should facilitate the speed of hearing should leave be granted.  What we are saying is Mr Justice Beach, if the appeal was not competent before him or declined to be heard, which is now an agreed set of facts, did not have the power to overturn the taxing master or Master Wheeler’s report.  It was never before the court at that point of time.  Our cross‑summons was for third party costs only and yet this vehicle has been used to overturn the taxing master’s decision.  The causation was proved, the sum set at lump sum scale, and the

reason given for that was negligence by the respondent.  I thank you, your Honours.

GLEESON CJ:   The primary question for consideration by this Court is whether error has been shown in the Court of Appeal which is the Court from which the applicants seek leave to appeal in this longstanding litigation.  The Court is of the view that there are insufficient reasons to doubt the correctness of the decision of the Court of Appeal to warrant a grant of special leave and the application is dismissed.

Can you resist an order for costs, Mrs Abrahams?

MRS ABRAHAMS:   Yes, I resist an order, but I do believe, sir, that the Court of Appeal did not look at a wide enough view ‑ ‑ ‑

GLEESON CJ:   We have heard your argument on that.  The applicants must pay the respondent’s costs of the application.

We will adjourn until 2 pm.

AT 12.59 PM THE MATTER WAS CONCLUDED