Burton v The Office of the Director of Public Prosecutions

[2019] NSWDC 120

District Court

New South Wales

Medium Neutral Citation:

Burton v The Office of the Director of Public Prosecutions [2019] NSWDC 120

Hearing dates:

26 March 2019

Date of orders:

12 April 2019

Decision date:

12 April 2019

Jurisdiction:

Civil

Before:

Hatzistergos DCJ

Decision:

The proceedings are dismissed pursuant to UCPR 13.4(1)
The Plaintiff is to pay the Defendant’s costs.

Catchwords:

ESTOPPEL – Issue estoppel – Whether judicial review of Local Court determination amounted to an estoppel

 

TORTS – Miscellaneous torts – Collateral abuse of process – Whether initiating criminal proceedings without reasonable and probable cause constituted a collateral and improper purpose

  CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – No reasonable cause of action disclosed

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW)
Court Suppression and Non Publication Orders Act 2010 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

A v State of New South Wales at (2007) 230 CLR 500
Burton v Local Court of New South Wales [2019] NSWSC 191
Butler v Simmonds Crowley & Galvin [2000] 2 Qd R 252
Blair v Curran (1939) 62 CLR 464
Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Kable v New South Wales [2012] NSWCA 243
Kuligowski v Metrobus (2004) 220 CLR 363
Maxwell-Smith v S & E Hall Pty Ltd [2014] NSWCA 146
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
Williams v Spautz (1992) 174 CLR 509

Texts Cited:

JD Heydon, Cross on Evidence (11th ed, Lexis Nexis, 2017)
John Tarrant, Amending Final Orders and Judgments (Federation Press 2010)

Category:

Principal judgment

Parties:

Paul Robert Burton (Plaintiff)
Office of the Director of Public Prosecutions (Defendant)

Representation:

Counsel:
Mr E.Chrysostomou

  Solicitors:
Crown Solicitors Office

File Number(s):

18/309486

Publication restriction:

N/A

Judgment

1. On 21 December 2017, NSW Police charged the Plaintiff with four offences under s 105(2) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and six offences under s 16(1) of the Court Suppression and Non-Publication Orders Act 2010 (NSW). [1]

   1. Affidavit of Paul Robert Burton (17 December 2018) Annexure A.

2. On 10 October 2018 the Plaintiff filed a Statement of Claim commencing proceedings in this Court seeking damages in respect of an alleged collateral abuse of process.

3. On 12 October 2018 the Defendant wrote to the Plaintiff asserting deficiencies in the Statement of Claim and inviting the Plaintiff either to withdraw the claim or alternatively draft an Amended Statement of Claim. [2] The Plaintiff responded that it had fully particularised his claim and foreshadowed bringing proceedings for summary judgment unless a defence was filed. [3] In these circumstances a Defence came to be filed on 13 November 2018. [4]

   2. Affidavit of Lucinda Bozic (11 December 2018) at [7], Annexure B.

   3. Affidavit of Lucinda Bozic (11 December 2018) at [8].

   4. Affidavit of Lucinda Bozic (11 December 2018) at [9].

4. Thereafter an Amended Statement of Claim was filed on 16 November 2018. Although leave to file was not sought, the Defendant raised no issue in this regard. The Amended Statement of Claim related to three of the ten criminal charges which had been brought against the Plaintiff. These were pleaded as follows:

1. On or about 21/12/17 the Plaintiff was charged with the following offences:

A) Recklessly contravene non publication order under s 16 of the Court Suppression and Non Publication Orders Act 2010 in that he engaged in conduct that contravened a non publication order made by the Children’s Court of NSW on May 25th 2017 by publishing a video on the 4th July 2017 on facebook that identified [R] and that he was reckless as to whether that conduct constituted a contravention of a non publication order

B) Recklessly contravene non publication order under s 16 of the Court Suppression and Non Publication Orders Act 2010 in that he engaged in conduct that contravened a non publication order made by the Children’s Court of NSW on May 25th 2017 by publishing a video on the 6th July 2017 on facebook that identified [R] and was reckless as to whether that conduct constituted a contravention of a non publication order.

C) Recklessly contravene non publication order under s 16 of the Court Suppression and Non Publication Orders Act 2010 in that he engaged in conduct that contravened a non publication order made by the Children’s Court of NSW on May 25th 2017 by publishing a video on the 11th July 2017 on facebook that identified [R] and was reckless as to whether that conduct constituted a contravention of a non publication order [5]

5. Amended Statement of Claim at [1]

5. The Plaintiff further pleaded that the non-publication order made on 25 May 2017 was not in force at the time that the Plaintiff was alleged to have committed the offences referred to above. [6] The Plaintiff thereafter pleaded that as a consequence of the orders not being in force at the time of the conduct alleged, the charges could not in each case have constituted an offence. [7] This was said to be so as the non-publication orders did not contain a time duration as stipulated by section 12 of the Court Suppression and Non Publication Orders Act 2010 (NSW). [8]

   6. Amended Statement of Claim at [4].

   7. Amended Statement of Claim at [5].

   8. Amended Statement of Claim at [5A].

6. The Plaintiff pleaded that as a result, the conduct complained of by the Defendant could not have constituted the alleged offences and there was no possibility of obtaining evidence that the “suppression order was in force. [9] The Plaintiff further pleaded that the Defendant could not have had reasonable and probable cause in relation to the charges laid against the Plaintiff as a result of the lack of time duration being stipulated in the order of 25 May 2017. [10]

   9. Amended Statement of Claim at [5B].

   10. Amended Statement of Claim at [5C].

7. The Plaintiff then pleaded:

The Defendant instituted and laid the charges for a purpose other than that which the legal process offered and for a predominate purpose other than bringing a criminal charge laid for reasonable and probable cause and to secure a conviction on the allegation, or other proper use of the legal process, namely that it is vexatious and it amounts to a collateral abuse of process. [11]

11. Amended Statement of Claim at [7].

8. On 11 December 2018 the Defendant filed a Notice of Motion seeking that the proceedings be dismissed pursuant to UCPR 13.4, or in the alternative that the amended Statement of Claim be struck out pursuant to UCPR 14.28.

9. On 17 December 2018 the Plaintiff filed a Notice of Motion seeking inter alia:

The defence be struck out under UCPR 14.28(a) for disclosing no reasonable defence and (c) for being an abuse of process.

10. By letter dated 08 January 2019 forwarded to the Plaintiff by the Defendant, the Defendant particularised that it was relying on UCPR 13.4(1)(b)-(c) which relevantly reads as follows:

13.4 Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) …

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

11. The Defendant further relied on UCPR 14.28(1)(a) and (c) which reads: [12]

    12. Affidavit of Lucinda Bozic (11 December 2018), Annexure B.

14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

12. Both rules are predicated on the absence of a reasonable cause of action or abuse of process although UCPR 14.28 focuses on the pleadings whilst UCPR 13.4 refers to the proceedings ‘generally’ or ‘any claim for relief.’

13. With regard UCPR 13.4, the Defendant acknowledged that for the purpose of this application the Court is to proceed on the basis of the Plaintiff’s case taken at its highest. [13] The applicable principles were summarised by Gleeson JA in Simmons v NSW Trustee and Guardian. [14]

    13. Defendant’s written submission at [19].

    14. [2014] NSWCA 405 at [196] – [200] (Gleeson JA with whom Beazley P and Barrett JA agreed).

14. To the extent that the Defendant relies on UCPR 14.28, it accepts that the pleadings should not be struck out unless it is clear that they show no reasonably arguable cause of action. Further for a pleading to survive, I must be satisfied that there is a real issue to be tried. [15]

    15. Defendant’s written submissions at [22]-[24].

15. The Defendant’s principal submission was based on the application of UCPR 13.4

Local Court Proceedings

16. On 06 April 2018, Magistrate Stone sitting in the Local Court heard an Amended Notice of Motion seeking that the Court Attendance Notice be quashed and the prosecution proceedings be dismissed. The Amended Notice of Motion raised six grounds. They were:

1. The court attendance notice is void and invalid for violating section 23 of the Criminal Procedure Act 1986 (NSW)

2. The court attendance notice is void and invalid for including both summary and indictable matters in the one document

3. The court attendance notice is void and invalid for being an abuse of process

4. The failure of the Director of Public Prosecutions to give further particulars is a denial of natural justice

5. The conduct complained of the subject of the charges is constitutionally protected political free speech

6. The conduct complained of the subject of the charges is constitutionally protected exercise of religion

17. During argument the Plaintiff conceded that the first two grounds were unlikely to be successful. [16]

    16. Affidavit of Lucinda Bozic (13 March 2019) Annexure D, T 6.42-.47, 12.01-.02. and 13.44-.14.03.

18. Magistrate Stone did not accept the Plaintiff’s submissions in respect of the remaining four grounds and dismissed the motion. [17]

    17. Affidavit of Lucinda Bozic (13 March 2019) Annexure D, T 25.11-27.12.

Judicial Review

19. On 26 July 2018 the Plaintiff commenced proceedings seeking judicial review of the decision of Magistrate Stone. By Amended Summons filed 27 August 2018, the Plaintiff sought an order in the nature of certiorari reviewing the decision of Magistrate Stone to dismiss the Plaintiff’s Notice of Motion in the Local Court and an order in the nature of a mandamus returning the matter to the Local Court to be dealt with according to law. Amongst the grounds advanced were:

His Honour erred by failing to dismiss the three charges relating to May 25th 2017 suppression order which had expired and which meant there was no possibility of conviction on those charges.

20. On 20 February 2019 Harrison AsJ heard the judicial review application. On 08 March 2019, her Honour delivered her judgment and dismissed the summons. Relevantly her Honour concluded:

[60] On the face of the Court order, it is an interim order. By virtue of s 10(1) of the Court Suppression and Non-publication Orders Act, the interim order is to have effect subject to revocation of the Court, until the application is determined. Although s 10(2) states that if the order made is an interim order the Court must determine the application as a matter of urgency, the order cannot come into play until the plaintiff’s criminal charges are determined. The Magistrate’s reasons were correct. This ground of judicial review fails. [18]

18. Burton v Local Court of New South Wales [2019] NSWSC 191.

Estoppel

21. The Defendant based its claim for summary dismissal first on the basis of estoppel. [19] Although the Defendant’s particulars dated 08 January 2019 did not identify reliance upon UCPR 13.4 based on such a ground; this issue did not arise until Harrison AsJ’s decision of 08 March 2019 and no issue was raised in this regard.

    19. Defendant’s written submissions at [38].

22. The Defendant’s argument is that the proceedings brought in this Court should be summarily dismissed as the Plaintiff is estopped, by reason of the decision of Harrison AsJ, from contending that the order made on 25 May 2017 had expired which meant that there was no possibility of conviction on those charges.

23. The Defendant submitted that as this was the basis on which the cause of action before this Court for collateral abuse of process was brought, the issue sought to be litigated is identical to that in the Supreme Court proceedings. It therefore argued that the Supreme Court decision is final and the same issue cannot be raised in subsequent proceedings in this Court. [20]

    20. Blair v Curran (1939) 62 CLR 464, 531-532 (Dixon J).

24. The Plaintiff contended that Harrison AsJ did not determine the issue the subject of the proceedings before this Court and no issue of estoppel has arisen. He specifically draws attention to the fact that Magistrate Stone, in dismissing the motion at first instance, indicated that it was open to the Plaintiff in the criminal proceedings to raise the question of the interim order on 25 May 2017 in his defence to those charges. [21] Therefore, he contends that the issue has not been determined either by Magistrate Stone or Harrison AsJ and he can and will raise the matter in the criminal case so there can be no issue of estoppel.

    21. Affidavit of Lucinda Bozic (13 March 2019), Annexure D at T 18.27-.44.

25. Issue estoppel will arise where the following requirements have been satisfied:[22]

1. The same question has been decided;

2. The judicial decision which is said to create the estoppel was final; and

3. That the parties to the judicial decision or their privies are the same persons as the parties to the proceedings in which the estoppel is raised.

   22. Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853 at 935 (Lord Guest) cited with approval in Kuligowski v Metrobus (2004) 220 CLR 363 at [21].

26. In Tomlinson v Ramsey Food Processing Pty Ltd, [23] French CJ, Bell, Gageler and Keane JJ set out the basis of the principle of estoppel stating:

38. …… It is a principle at the core of our legal system that a party claiming or denying the existence of a legal right or obligation should have an opportunity to present evidence and arguments to establish the facts and law on which the claim or denial is founded. There are countervailing considerations, some of which operate to create exceptions to that principle. Finality and fairness, including maintaining the certainty of past adjudicated outcomes and ensuring the predictability of future adjudicated outcomes, are amongst those countervailing considerations, and the estoppels informed by those considerations are amongst the exceptions to the principle. The operation of an estoppel, it must be remembered, is to preclude the assertion in a subsequent proceeding of what is claimed to be the truth.

39.   The justice of binding to an estoppel a person who was a party to an earlier proceeding is readily apparent: the person has already had an opportunity to present evidence and arguments. The justice of binding to an estoppel a person whose legal interests stood to benefit from the making or defending of a claim by someone else in an earlier proceeding will often also be apparent. With the benefit of the claim or defence also comes the detriment of the estoppel. That, at least, is the underlying theory. But it is a theory which has limitations. It would be quite unjust for such a person to be precluded from asserting what the person claims to be the truth if the person did not have an opportunity to exercise control over the presentation of evidence and the making of arguments in the earlier proceeding and if the potential detriment to the person from creating such an estoppel was not fairly taken into account in the decision to make or defend the claim in the earlier proceeding or in the conduct of the earlier proceeding.

23. (2015) 256 CLR 507; [2015] HCA 28.

27. Specifically what the application before Harrison AsJ sought to do was determine whether there was an error of law that appeared on the face of the record of the proceedings in the Local Court within the terms of s 69(4) of the Supreme Court Act. 1970 (NSW). [24] As such the review conducted was confined to the record of the Local Court on what was an interlocutory application in criminal proceedings.

    24. Blair v Curran (1939) 62 CLR 464 at 531-2 (Dixon J).

28. During the course of the proceedings the Plaintiff indicated that he wished to challenge the text of the Order which he argued did not conform with what was actually made in the Children’s Court.

29. No submission was advanced that the doctrine of estoppel applies to interlocutory criminal proceedings. To the contrary, the Defendant accepted that the determination by Magistrate Stone would not constitute an estoppel in the criminal proceedings. So much must be accepted if for no other reason that the Crown will in any trial need to satisfy the Court beyond reasonable doubt of each essential element of the offences.

30. Accordingly a judicial review of the Local Court determination based on the evidence in an interlocutory application before it cannot rise any higher in terms of amounting to an estoppel. I am doubtful in any event that the terms of a court order issued by the Children’s Court could itself form the basis of an estoppel finding by a different Court. [25] Harrison AsJ’s reference to “on the face of the Court order it is an interim order” referred to the order as it stood.

    25. See Blair v Curran at p 532.

31. If in fact the order as minuted did not accurately reflect the Court’s intention as the Plaintiff asserts, then it can potentially be corrected. [26] Subject to that, the facilitation of proof of court orders is provided for in sections 157 and 178 of the Evidence Act 1995 (NSW). In JD Heydon Cross on Evidence (11th ed, Lexis Nexis, 2017) the learned author stated:

Once it has been drawn up, the order of the court is conclusive evidence of that which was directed by the judge. Steps may be taken to have clerical errors corrected, and there may be an appeal; but in any other proceedings, extrinsic evidence of the terms of the decision would be irrelevant. [27]

26. The UCPR does not apply to the Children’s Court. Nevertheless see Amending Final Orders and Judgments by John Tarrant (Federation Press 2010) at p 9. Also s 13 of the Court Suppression and Non-Publication Orders Act 2010 (NSW); s 15 of the Children’s Court Act 1987 (NSW).

27. at [39150].

32. I accept that the issue was the subject of detailed submissions by both parties, who are parties to proceedings before the Supreme Court.

33. Nevertheless the matter was determined only in the circumstances described Harrison AsJ’s decision cannot give rise to a binding estoppel in the manner the Defendant contended. [28]

    28. Kuligowski v Metrobus (2004) 220 CLR 363 at [25].

Abuse of Process

34. In the alternative, the Defendant asserts that the claim brought by the Plaintiff is an abuse of process within the terms of UCPR 13.4(1)(c) in that by collateral attack it seeks to directly or indirectly challenge or impugn the conduct of a proceedings in an earlier jurisdiction.

35. The concept of abuse of process existing from estoppel was described by French CJ, Bell, Gageler and Keane JJ in Tomlinson v Ramsay Food Processing: [29]

Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute . It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel . Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel. (footnotes omitted)

29. Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [25]-[26].

36. Bearing in mind my determination as to the question of estoppel, I am not satisfied that the matter amounts to an abuse of process within the abovementioned principles.

No Reasonable Cause of Action

37. The Defendant further contended that in the alternative, it was entitled to have the proceedings dismissed pursuant to UCPR 13.4(1)(b), being that no reasonable cause of action was disclosed. [30]

    30. Defendant’s written submissions at [40].

38. The Defendant contends the following for this basis of dismissal:

This is based on four reasons, which alone or in combination would lead to the conclusion that the proceedings be dismissed. Firstly, it fails to identity an improper purpose on the part of the defendant that is outside the ambit of the legal process. Secondly it fails to identify an overt act or threat performed in furtherance of the improper purpose. Thirdly, impugns only part (30%) but not all the Local Court Proceedings in the Proceedings. Fourthly, misconceives his cause of action relying on the CSNPO Act. [31]

31. Defendant’s written submissions at [41].

Particularisation of Improper Purpose and Overt Act

39. In the course of discussing the tort of collateral abuse of process, the plurality of the High Court in Williams v Spautz stated:

Central to the tort of abuse of process is the requirement that the party who has instituted proceedings has done so for a purpose or to effect an object beyond that which the legal process offers. The centrality of this element in the tort was recognized in the case which is generally recognized as having established the tort of abuse of process, Grainger v. Hill. ….. [32]

32. (1992) 174 CLR 509; [1992] HCA 34 at [27].

40. At [29]-[30] it was further stated:

In conformity with the approach adopted in Grainger v. Hill, this Court has regarded the purpose of the party instituting the proceedings as of crucial importance. In Varawa, the plaintiff alleged that the defendant company had instituted proceedings for breach of contract and procured the issue of a writ of capias ad respondendum pursuant to which the plaintiff was arrested with the intention of coercing him into paying the defendant moneys to which it was not entitled. The allegations were found unproved, but Griffith C.J., O'Connor and Isaacs JJ. recognized the existence of the tort of abuse of process (32) (1911) 13 CLR, at pp 55-56, 70, 91. Griffith C.J. referred to the abuse in Grainger v. Hill as being "a use of original process for purposes foreign to the scope of the process itself, that scope being merely to obtain security for enforcing the payment of an alleged debt" (33) ibid., at p 55. O'Connor J. expressed himself in similar terms (34) ibid., at p 70. And Isaacs J. observed (35) ibid., at p 91.

"In the sense requisite to sustain an action, the term 'abuse of process' connotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate they are regarded as an abuse of process for this purpose".

In Dowling, the respondent Society bought up a debt owing by the appellant and instituted bankruptcy proceedings against the appellant in order, after a sequestration order had been made, to ascertain by examination the identity of the person behind the appellant's publication of defamatory material. The making of a sequestration order was opposed on the ground, amongst others, that the bankruptcy proceedings were an abuse of process. This Court (Isaacs and Powers JJ.; Griffith C.J. dissenting) held there was no abuse of process. Isaacs J. said (36) (1915) 20 CLR, at pp 521-522.

"If the object sought to be effected by the process is within the lawful scope of the process, it is a use of the process within the meaning of the law, though it may be malicious, or even fraudulent, and in the circumstances the fraud may be an answer; if, however, the object sought to be effected by means of the process is outside the lawful scope of the process, and is fraudulent, then - both circumstances concurring - it is a case of abuse of that process, and the Court will neither enforce nor allow it to afford any protection, and will interpose, if necessary, to prevent its process being made the instrument of abuse. Grainger v. Hill laid down the distinction."

The words "both circumstances concurring" suggest that both an improper object and fraud are needed before abuse of the court process is made out. His Honour was concerned to take account of the advice given by the Privy Council in King v. Henderson (37) (1898) AC 720, at p 731 where, in the context of the Bankruptcy Act 1887 (N.S.W.), it was held that an abuse of process does not exist unless "the remedy would be unsuitable, and would enable the person obtaining it fraudulently to defeat the rights of others". In expressing the matter in that way, the Privy Council was doing no more than saying that the existence of an unworthy or reprehensible motive for bringing the action was not enough and that it must appear that the purpose sought to be effected by the litigant in bringing the proceedings was not within its scope and was improper. There is no suggestion elsewhere that fraud is an additional and indispensable element in the doctrine of abuse of process, though it stands to reason that a purpose which stands outside the scope of the process will often be unlawful, fraudulent or otherwise reprehensible. (emphasis added)

41. It was in that context that the plurality held at [38]:

Neither the authorities in Australia nor those in England insist on the need for an improper act as an essential ingredient in the concept of abuse of process. However, the authorities do speak of the "use" of process for a purpose which stamps it as an abuse (47) See, for example, Varawa (1911) 13 CLR, at p 55; Metall and Rohstoff v. Donaldson Inc. (1990) 1 QB, at p 469. That is not surprising because an improper act may, in appropriate circumstances, afford evidence of improper purpose and abuse of process. And in some, at least, of the cases there was a use of the process in the form of an improper act after the proceedings had been instituted. Thus, in Grainger v. Hill, the issue of the capias, though virtually contemporaneous with the commencement of the action in assumpsit, constituted an improper act within the framework of the principal proceedings that had been commenced immediately before. The statements that there must be a use of the proceedings are equivocal because the commencement of the proceedings may be described as a "use" of them, even if no attempt be made thereafter to take advantage of them for such a purpose as would constitute an abuse of process. Especially is this so when the party commencing the proceedings has previously threatened that, unless the other party complies with some improper demand the first party has made, such as payment of an alleged debt, criminal proceedings will be commenced and prosecuted to a conviction. In such a case, the very commencement of the proceedings amounts to use of them for an improper purpose.

42. In Butler v Simmonds Crowley & Galvin, [33] McMurdo P, Pincus and Thomas JJA followed the considered obiter dicta outlined in Williams v Spautz adding:

[24] In order to succeed in an action for collateral abuse of process it is not necessary to allege or prove that the initial proceeding has terminated in favour of the plaintiff, or that there was no reasonable and probable cause for instituting the initial proceeding (Williams v Spautz (1992) 174 CLR 509 at 523). It is however essential for a plaintiff to show that the defendant instituted proceedings for a purpose or to effect an object beyond that which the legal process offered. Such a purpose of the defendant in instituting the earlier proceedings is of crucial importance proceeding (Williams v Spautz (1992) 174 CLR 509 at 551-2). It is not sufficient to assert that the proceedings were instituted with an improper motive. The ulterior objective needs to be identified, and it also needs to be able to be seen as the predominant purpose of those proceedings and as outweighing any legitimate purpose that they might otherwise have… (footnotes omitted and emphasis added)

33. [2000] 2 Qd R 252.

43. In Kable v New South Wales, [34] Basten JA stated:

    34. [2012] NSWCA 243 (with whom Allsop P, Campbell and Meagher JJA, and McClellan CJ at CL agreed). Note however, that the principal determination made by the Court on the false imprisonment claim was reversed by the High Court in New South Wales v Kable (2013) 252 CLR 118.

[115] That which is sufficient to constitute a tort of collateral abuse of process is by no means amenable to precise expression. It is often explained by reference to that which it is not. Thus, in Williams v Spautz [1992] HCA 34 ; 174 CLR 509 the tort was discussed by Mason CJ, Dawson, Toohey and McHugh JJ by reference to its relationship with the inherent jurisdiction of the court to stay proceedings which were abusive: at 522–526. The case itself was concerned with the exercise of the judicial power to control proceedings, not the tort. Their Honours discussed the scope of the tort by contrasting it with malicious prosecution at 522–523:

The tort of collateral abuse of process differs from the older action for malicious prosecution in that the plaintiff who sues for abuse of process need not show: (a) that the initial proceeding has terminated in his or her favour; and (b) want of reasonable and probable cause for institution of the initial proceeding.

[116] It might be added that the abusive proceedings need not be criminal in nature. Accordingly, the only element of the four identified in respect of malicious prosecution required for abuse of process is “malice” in the sense of an improper purpose. There is a further difference: an action for malicious prosecution may be brought against a person who takes steps to initiate proceedings even if that person is not the informant: by contrast, in relation to collateral abuse of process, it has been held that the defendant must be the party who actually instituted the proceedings: Emanuele v Hedley (see [73] above) at [44], relying on three passages in the joint judgment in Williams v Spautz, at 523, 524 and 526. Whether or not such a principle can be derived from the discussion in Spautz at those pages, it has been affirmed by this court in Leerdam (see [73] above), particularly in the judgment of Spigelman CJ at [32]–[44], Allsop P and Macfarlan JA agreeing at [65] and [126] respectively. It is not necessary to deal with the appellant’s challenge to the correctness of that view.

[117] It is also not necessary to explore the ill-defined parameters of the concept of “improper purpose” in the context of this tort. There was no evidence that the Director, or any Minister or senior officer of the government who might have been in a position to influence the Director, had any purpose in respect of the institution or maintenance of the proceedings in the Supreme Court, other than to achieve that for which the Community Protection Act expressly provided. Accordingly, it was necessary for the appellant to contend that that purpose was improper because the Act itself was unconstitutional and thus provided no basis for such proceedings. However, this argument is unsustainable for the reasons given above in respect of the same argument in relation to malicious prosecution.

44. The decision in Williams v Spautz is seriously considered dicta that it is authoritative and binding. [35]

    35. Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [134].

45. Whilst the Defendant relied on Maxwell-Smith v S & E Hall Pty Ltd [36] to contend that the Plaintiff needed to allege and ultimately prove an overt act in addition to an improper purpose, I accept that for the purposes of the tort the commencement of the proceedings can amount to an overt act consistent with William v Spautz. To that extent, the Plaintiff’s pleading can be seen to be consistent with the tort, in which case the Defendant’s second argument falls away.

    36. [2014] NSWCA 146 at [54]).

46. Relying upon the decision of the Court of Appeal in Maxwell-Smith v S & E Hall Pty Ltd [37] the Defendant further submitted that the Plaintiff still did not identify that any particular investigating officer had an improper purpose or at all, but pleaded (paraphrasing) that:

…it was obvious that they could not fulfil their function and that the only logical conclusion from the fact that proceedings were commenced was for a predominate purpose other than brining a criminal charge.... namely vexatiousness. [38]

37. [2014] NSWCA 146, in particular at [32] – [54] Barrett JA (Beazley P and McColl JA agreeing).

38. Amended statement of claim at [7C].

47. The Defendant raised no issue as to the propriety of commencing proceedings against the Director as opposed to the police informant. In these circumstances I will leave this issue to the side.

48. As to the question of improper purpose the Plaintiff submitted that this can be inferred from an absence of reasonable and probable cause and the overt act can be the initiation of the process itself. This borrows the concept of improper purpose referred to in the context of a finding of malice for the purpose of the tort of malicious prosecution. [39]

    39. A v State of New South Wales at (2007) 230 CLR 500; [2007] HCA 10 at [91]-[92].

49. The Plaintiff has not identified an improper purpose other than to assert a purpose “other than that which the legal process offered and for a predominate purpose other than bringing a criminal charge laid for reasonable and probable cause and to secure a conviction on the allegation or other proper use of the legal process namely that it is vexatious.”

50. The Plaintiff’s particulars identify the substance of the Plaintiff’s assertion being that the relevant Court orders of 25 May 2017 had no period of operation such that the alleged breaches could never be proved such that the Court process was being pursed improperly for vexatiousness. So much was maintained in the Plaintiff’s correspondence of 12 November 2018 [40] and 13 December 2018. [41]

    40. Affidavit of Lucinda Bozic affirmed 11 December 2018 at Annexure C (this was before the amended Statement of Claim was filed).

    41. Affidavit of Lucinda Bozic affirmed 4 February 2019 at Annexure A.

51. This identified improper purpose does not amount to an object outside the lawful scope of the process as described in Williams v Spautz.

52. In Spencer v Commonwealth of Australia,[42] French CJ and Gummow J stated at [25]:

… Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success. [43]

42. (2010) 241 CLR 118; [2010] HCA 28.

43. This was based on an analogous argument under s 31A of the Federal Court of Australia Act 1976 (Cth).

53. The same could be said as to the application of UCPR 13.4(1)(b) and UCPR 14.28.

54. In circumstances described and where the Plaintiff, despite being given the opportunity to identify an improper purpose outside the lawful scope of the proceedings, has been unable to do so, I am satisfied the proceedings disclose no reasonable prospects of success.

55. Accordingly I would dismiss the proceedings under UCPR 13.4(1)(b).

Proceeding on Only Some Charges

56. The Defendant third argument relates to the fact that as the Plaintiff seeks to impugn in the proceedings only 3 of the 10 charges that he is facing on the basis that they amount to a collateral abuse of process and seeks damages in respect of those. Implicit in this is that the other 7 offences do not suffer from any alleged deficiency sufficient to form part of the proceedings. The remaining 7 charges relate to orders of 31 May 2017 (where the time stipulation is expressed to remain in place until the conclusion of the Children’s Court proceedings in New South Wales).

57. It was argued that this was an anomalous situation and amounted to a constructive admission that the legal process was being used for a purpose for which the proceedings are properly designed and exist. To that end, it was submitted that the Defendant was not seeking a collateral advantage beyond what the law offers. [44]

    44. Defendant’s written submissions at [50]-[52].

58. In oral argument, the Defendant accepted that there was no authority which supported a contention that it was not open to a party to bring proceedings for a collateral abuse of process where it relates to part of a proceedings against a party. Ultimately, this ground was faintly pressed. Were it to stand alone, it could not be contended that it demonstrated no reasonable cause of action although there may be issues as to the credibility of the allegations were they to have been properly advanced.

Summary Judgment

59. The Defendant further submitted that in the event no estoppel was established, the Plaintiff’s claim relies on the Court Suppression and Non Publication Orders Act 2010 (NSW) to contend that the three offences the subject of the claim were doomed to fail because no time duration was specified in the non-publication order made on 25 May 2017. This it argues, is misconceived, as it is clear that the order that was made was identified as an “interim order” and was made under section 7 of the Court Suppression and Non Publication Orders Act 2010 (NSW). As an interim order, did not include a time duration (as would ordinarily be required under section 12(1)), it would have effect, subject to revocation by the court, until the application is determined. In this light, it was submitted that the interim order would have had effect until the final determination of the relevant application.

60. On the evidence before me the order was an interim order. [45] I have however noted that in the Children’s Court proceedings a minute of a proposed order was submitted, which after some discussion and amendment, the Court made. [46] The transcript otherwise contains no recorded reference as to the duration of the order or anything that would indicate that a final determination had been made. The further order made on 31 May 2017 addressed different issues.

    45. Affidavit of Lucinda Bozic affirmed 13 March 2019 Tab A.

    46. Affidavit of Paul Robert Burton sworn 14 January 2019 Tab A p17-8.

61. The Plaintiff sought before this Court to see documents from the Children’s Court to clarify the status of the order it made. I indicated that this Court was not in a position to assist in this regard. The Plaintiff indicated that he had made an application for documents from the Children’s’ Court. [47] I have earlier referred to the circumstances in which orders of a Court can be corrected assuming any error exists.

    47. Plaintiff’s written submissions.

59. In the circumstances it is unnecessary to consider this further.

60. For reasons earlier given the relief sought by the Defendant must be granted.

61. It is also unnecessary in these circumstances to consider the alternative claim pursuant to UCPR 14.28 to strike out the pleadings. Whilst I accept that the pleadings are deficient in particularisation; had a cause of action been disclosed I would have allowed the Plaintiff leave to amend in order to attend to the deficiencies. Whilst the Plaintiff had before me foreshadowed some amendments that he would have made given the opportunity, these would not have resulted in him pleading a cause of action.

62. The Plaintiff’s motion seeking to strike out the Defence was not argued. The Defendant pointed out that there was no basis demonstrated. [48] Bearing in mind the Defendant’s success on its motion, this motion becomes redundant.

    48. Defendant’s written submissions at [10]-[12].

63. For these reasons I order:

1. The proceedings are dismissed pursuant to UCPR 13.4(1).

2. The Plaintiff is to pay the Defendant’s costs.

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Endnotes

Decision last updated: 12 April 2019