Perks v Amaca Pty Ltd(1)

[2002] NSWDDT 32

Dust Diseases Tribunal

of New South Wales

CITATION:	Perks v Amaca Pty Ltd(1) [2002] NSWDDT 32
PARTIES:	Donald Perks Amaca Pty Ltd
MATTER NUMBER(S):	149 of 1999
JUDGMENT OF:	Duck J at 1
CATCHWORDS:	:- Conduct
LEGISLATION CITED:
CASES CITED:	Grovit v Doctor (1997) 1 All E R 417; Walton v Gardiner (1992-93) 177 CLR 378; Moeva v The Department of Labour (1980) 1 NZLR 464 at 481
DATES OF HEARING:	23-27/09/2002
DATE OF JUDGMENT:	10/02/2002
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Ms A Katzmann, SC instructed by Turner Freeman FOR FIRST DEFENDANT: Mr M J Joseph, SC instructed by Holman Webb FOR SECOND DEFENDANT: Mr M Stevens instructed by Windeyer Dibbs FOR THIRD DEFENDANT: Mr J Gracie instructed by Vandervords

JUDGMENT:

1. The Tribunal has before it an application to strike out the plaintiff’s proceedings or alternatively to stay them. The application is put forward on the footing that the plaintiff’s conduct in the presentation of his case has been so bad that it amounts to an abuse of the process of the Tribunal. It is submitted on that account that proceedings ought not be permitted to go further.

2. It is convenient, firstly, to recount how the application came about. So far the present hearing is concerned it started last Monday at the Long Jetty Senior Citizens Club. Special arrangements had been made to sit at the club for the convenience of the plaintiff. The Tribunal sat at that club for two days and then moved to a neighbouring club, The Entrance Memorial Club, for hearings on Wednesday and Thursday. The plaintiff’s behaviour was unsatisfactory. By Wednesday there was disquiet being expressed in the courtroom about the way in which the proceedings were going. On Thursday the plaintiff’s conduct was even worse. During the course of the proceedings, and I think commencing on Wednesday the Bench expressed disquiet about what was happening. Mr Gracie, for the third defendant, raised for the first time the possibility of the proceedings being struck out. He was able to mention in support of that notion the House of Lords authority of Grovit v Doctor (1997) 2 All E R 417. No application to strike out was then made.

3. As the matter unfolded further Mr Joseph, learned senior counsel for the first defendant foreshadowed that in the light of what was happening he would be making an application to strike out the proceedings. Once again at that stage no formal application was made. On Thursday of last week, that is 26 September, the plaintiff’s conduct reached a point at which I said that it was no longer to be tolerated. Submissions were sought as to the way in which the Tribunal ought to proceed. Once again the idea of striking out the proceedings was discussed in submissions. I indicated that in the light of what had happened I was minded to proceed in that fashion, whereupon Ms Katzmann, learned senior counsel appearing for the plaintiff, said that she wished to prepare submissions and consider the evidence she wished to adduce on the hearing of such an application. The matter was stood over for argument on Friday afternoon, 27 September 2002.

4. Before the parties left the Memorial Club transcript from earlier proceedings for the dates 4 December 2001 and 5 December 2001 was tendered. It was initially marked as an exhibit in such a way as to suggest that the Tribunal was moving of its own motion. At the commencement of proceedings on Friday, 27 September, learned senior counsel for the first defendant indicated that the proper course was that a party should make such an application and that he wished to assume the conduct of the application on his client’s behalf. That is the way in which the matter proceeded.

5. The next matter which it is convenient to consider is what is it that the plaintiff has done which has led to the application. I wish to deal, firstly, with the events that happened before me and then to come a couple of other matters which happened earlier. Stated in dispassionate terms the plaintiff has done these things; he has repeatedly refused to answer questions, sometimes by evading them by asserting lack of memory, other times by various means of evasion. Topics about which he has been asked and about which he has effectively refused to provide answers to questions include the following.

(i) Whether in 1992 he had gone to the Philippines. His answer to that question was, “I don’t know.” Almost immediately when he could see a little more of the line of questioning which was being adopted he said he arrived back six weeks later.

(ii) Whether he had been to Sydney since the year 2000.

(iii) Whether he had been to Port Macquarie in the last couple of years and what was in his storage bin there.

(iv) The address of the man who drove him to Port Macquarie. The plaintiff blankly refused to give it.

(v) Whether he had ever written to Mrs Tattersall.

(vi) The addresses of his former helpers, that is those who provided services to him in his caravan.

6. In respect of this topic not only was there an alleged inability to remember but at T98 lines 9 to 13 it was put to the applicant that he was trying to prevent the Court or the parties from finding these individuals. He answered:

I’ve always stated that, yes, I do not want them coming here because they were friends of mine and now they’re not and I do not want them coming here because then they are going to get all this evidence that you are bringing up and that way my name is going to be shit around the Entrance just because of you, to make you happy.
(vii) Whether he had signed a loan application to the Commonwealth Bank at Port Macquarie, a copy of which was being shown to him.

An examination of the transcript at p 94 may give some indication of the plaintiff’s conduct in respect of this topic. Included at lines 44 to 45 was a blank refusal of the plaintiff to answer questions of the cross-examiner.

(viii) The address of Mrs Tattersall to which he had written letters.

ix) Whether he had been employed during 1997.

(x) Whether he had a car in 1997.

(xi) The relationship between himself and a man named John Williamson, the purported employer of the plaintiff.

7. Those topics are illustrations of the areas in which the plaintiff evaded or refused to answer questions in cross-examination. Related to that matter he gave non responsive answers to questions and made remarks unrelated to anything put to him by way of a question. He talked over people in the courtroom, including the Bench. He refused to comply with the directions of the Court, for example, in the following matters, sitting down on a chair, putting his trolley outside the courtroom or rather the room in which the proceedings were being heard, providing a sample of his handwriting to a cross-examiner.

8. The next area in which his conduct was adverse and affected the proceedings was coming late, and going away from Court when it suited him. In this regard it may be noted that on the Thursday when I had made it clear that the point had been reached at which his conduct was no longer tolerable he said he had to go to the doctor and that he would be a couple of hours. I said to him, words to the effect, “that’s all right, you go to the doctor.” He then sat and listened intently, without disturbing anybody for half an hour or so while submissions were made about how the matter ought to proceed. I infer that his expressed need to go to a doctor was simply an excuse to leave the court and disrupt the proceedings. No certificate from any doctor was presented on Friday.

9. I leave aside from consideration for the moment the rudeness he showed to everybody in the courtroom. The net result of his conduct on Thursday, 26 September was, that about 23 minutes of evidence was taken on that day all day. The estimate is that of counsel made in submissions about what the Tribunal should do about the plaintiff’s conduct. It is reasonable to note in this context I think that in written submissions advanced on his behalf by learned senior counsel appearing for him in respect of the application his conduct was described as disgraceful.

10. The next thing to consider is, assuming that such matters can amount to an abuse of process what power does the Tribunal have to deal with it. It has been submitted the Tribunal has no inherent power, its jurisdiction is derived from s 10 of the Dust Diseases Tribunal Act. Lengthy submissions were not made about this topic because it was conceded that the Dust Diseases Tribunal Rules adopt the Supreme Court Rules to the extent that they are not inconsistent with the Dust Diseases Tribunal Act. It has been conceded by learned senior counsel appearing for the plaintiff that Supreme Court Rules Pt 13 r 5 has application in the Tribunal. Accordingly it is conceded that the Tribunal has the power to order that proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings if it is satisfied that the proceedings are an abuse of the process of the Tribunal.

11. What then is abuse of process? Learned counsel have referred the Tribunal inter alia to the High Court decision of Walton v Gardiner (1992-93) 177 CLR 378. That was an appeal from the decision of the New South Wales Court of Appeal upholding a stay of proceedings in the Medical Tribunal against Dr Gardiner and others. At 392 the judgment of the majority, Mason CJ and Deane and Dawson JJ, contained the following:

None of the members of the Court of Appeal accepted the department’s narrow view of the extent of the jurisdiction of the Supreme Court to order a stay of proceedings on abuse of process grounds. Gleeson CJ and Kirby P considered the Court of Appeal has power to make an order staying proceedings if it is satisfied that the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. Their Honours made plain that the Court would only be so satisfied in an exceptional or extreme case. Mahoney JA adopted a similar approach while formulating the appropriate test in slightly different words. His Honour considered that the question for the Court of Appeal was whether in all the circumstances the continuation of the proceedings before the Tribunal would involve unacceptable injustice or unfairness. In our view the approach adopted by the members of the Court of Appeal was correct.

12. At 393 the following appears:

In Jago v The District Court of New South Wales (1989) 168 CLR 23 at least three of the five members of the Court clearly rejected `the narrower view’ that a Court’s power to protect itself from an abuse of process in criminal proceedings `is limited to traditional notions of abuse of process’ .

13. The joint judgment proceeded to say that a Court, “whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves,” possesses the necessary power to prevent its processes being employed in a manner which converts them into instruments of injustice or unfairness.

14. The judgment then quotes with approval a passage quoted by his Honour the Chief Justice from a New Zealand case, that passage being set out at 394. The case was Moevao v The Department of Labour (1980) 1 NZLR 464 at 481. It is not necessary for present purposes to set out that passage but it is relevant to observe that the passage introduces as a consideration what is described as a second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. The quoted passage concludes with this sentence:

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.

15. Later on the same page the joint judgment of the majority sets out the following:

In her judgment in Jago Gaudron J stressed that the power of a Court `to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands.’ Her Honour added the comment `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.’ Subsequently in her judgment her Honour made clear that subject to some refinements which she identified that comment was also appropriate to be adopted in relation to criminal proceedings.

16. At the foot of 395 the following appears continuing to 396:

As was pointed out in Jago (references are supplied) the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving the subjective balancing of a variety of factors considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.
The quotation continues:
The question whether disciplinary proceedings in the Tribunal, [that is the Medical Tribunal] should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process 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.

17. In this case Brennan J, as he then was, dissented, but his judgment contains some salutary reminders of the Court’s duty and the caution with which it should approach striking out a case.

18. I will come back to those matters in just a moment, but for the present purposes they assume importance in reinforcing what the judgment of the majority said at 392, which I repeat. Their Honours made plain the Court would only be so satisfied in an exceptional or extreme case.

19. At 410 Brennan J said:

I venture to repeat what I said in Jago v District Court of New South Wales (1989) 168 CLR 23 at 47. `An abuse of process occurs when the process of the Court is put in motion for a purpose which in the eye of the law it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve.’

20. The learned judge then gives examples. It is not necessary to set them out. At 411 he goes on to say about the examples:

They are simply vexatious or oppressive in the sense that they impose on the respondent party an unnecessary injustice, that is to say a burden other than and additional to the burden necessarily imposed on a party to litigation instituted on reasonable grounds for the purpose of obtaining relief within the scope of the available remedy.

21. At 415 the learned judge sets out a quotation from the case of Cox v Journeaux (2) (1935) 52 CLR. At 720 Dixon J said:

The principle in general paramount that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed must be observed. A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped.

22. The judgment of Brennan J then continues with this sentence:

Injustice is `unnecessary’ when it is a burden other than and additional to the burden necessarily borne by a party to litigation properly instituted and conducted.

23. Walton v Gardiner has been applied many times in subsequent decisions in the High Court and in the Court of Appeal. I will refer to a few of them although not at length. In the matter of K W Wentworth v G J Rogers & Anor a decision of Sperling J in the Supreme Court of New South Wales in which judgment was given on 10 September 1996 at p 18 his Honour said:

The main point in Walton v Gardiner was that the categories of abuse of proceedings are not closed and that the power to grant a permanent stay can be exercised whenever processes are employed in a manner which gives rise to unfairness (at 393); in particular, the jurisdiction is not confined to case where there is either an improper purpose or no possibility of a fair hearing (at 395).

24. In Rogers v The Queen (1994) 181 CLR 251 the High Court applied the authority of Walton v Gardiner. At p 24 McHugh J quoted with approval from Walton v Gardiner.

25. The authority was cited with approval in John Anthony Wridgway v The Queen in the High Court of Australia (1995) 129 ALR 41; (1995) 69 ALJR 48. At par 20 Toohey J made reference to the authority and then said:

There are distinct aspects of abuse of process in that proceedings may be stayed if it appears that they have been brought for an improper purpose even though there is no reason to doubt the accused will receive a fair trial. Equally an accused may not receive a fair trial by reason of delay, for instance, though there is no improper purpose in bringing the proceedings. But the power of a superior Court to stay its proceedings on grounds of abuse of process is not confined to those situations. A stay of criminal proceedings gives effect to the view that it would offend the Court’s sense of justice if the accused had to stand trial in those circumstances.

26. Walton v Gardiner was referred to in Regie National Des Usines Renault SA v Zhang 2002 HCA 10, in which judgment was given on 14 March 2002. It was referred to also in Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866; (1996) 186 CLR S41 in the High Court. It was cited with approval by the New South Wales Court of Appeal in a matter Nominal Defendant v Manning 2000 NSWCA 80.

27. I mentioned earlier that there had been some matters which occurred prior to the commencement of the hearing before me. They provide a context in which the facts relating to the present application fall to be considered. The case had been previously listed for hearing on 3 December 2001. Precisely what happened on that day is not clear to me because there is no transcript for it. Submissions were made to the effect that the plaintiff did not appear on that day. While I suspect that may be right I am not able to make a finding that that is so. The plaintiff did appear on 4 December 2001 and it is interesting that on p 1 of the transcript for that day his Honour - at line 28 - was constrained to ask counsel to keep the plaintiff quiet. “We will have difficulty with the sound recording if this continues.” At p 6 the learned judge was having trouble with the plaintiff’s location in the courtroom with sufficient degree to cause him to say, “I do not mean to be intolerant I am just trying to preserve order, that is all.” No evidence was adduced from the plaintiff on any of the three days.

28. Another aspect of the prior conduct of the plaintiff which is pointed to as illustrating a lack of intent on his part to cause the matter to proceed in a reasonable fashion was his insistence, which was repeated in evidence before me, that he was unfit to travel to Sydney for medical examinations. The matter was put in for directions before a judge constituting the Tribunal and medical examinations were arranged away from Sydney. There is evidence now adduced before me which suggests that the plaintiff has been able to go to Sydney for his own purposes at least six times and maybe as many as fifteen times between 2000 and the present date. As I say that evidence founds a submission that the plaintiff is intent on preventing his case proceeding in a normal fashion.

29. What then are the injustices complained of? The first of them I have just mentioned, the plaintiff by his conduct is preventing the proper completion of his case. The Tribunal has now devoted nine days to hearing it. The plaintiff’s evidence has not yet been completed. The case is of a type which one would expect to conclude in about three days if it were diligently run. At its present rate of progress it will take another fortnight, perhaps longer, to complete.

30. The second and related matter is that the expense being visited upon the defendants is enormous. It would not be unreasonable, it seems to me, to speculate that the costs in the courtroom are running at $20,000 a day and perhaps more. This seems to me to be something well over and above what a defendant might reasonably expect to have to endure by reason of the fact of court proceedings against it.

31. Thirdly, the persistent refusal of the plaintiff to answer questions interferes with the discharge by those appearing for defendants of their professional duties.

32. Another matter, and related to these considerations, is this, what a member of the public would think of court proceedings conducted in the manner that this plaintiff has conducted these proceedings one can only guess about. It seems to me to be probable that an ordinary person would he horrified it they thought that court cases were like this.

33. I conclude that the proceedings in the way they have been conducted have become unfair and unjustifiably oppressive on the defendants. Whether they are so unfair and so unjustifiably oppressive that the Tribunal should step in and stop the proceedings requires further consideration. To use the approach ascribed to Mahoney J at p 392 of Walton would the continuation of the proceedings involve unacceptable injustice or unfairness?

34. The plaintiff undoubtedly has asbestosis and asbestos related pleural disease. Those matters are not in dispute. The fact of his employment by the first defendant is not disputed. The only matters it was announced at the opening, which are in dispute so far is the first defendant is concerned are the extent of his disability, the extent of the exposure to the first defendant’s products in the first defendant’s employment, and quantum. There is also a defence raised under the South Australian Limitation Act.

35. Questions of apportionment between defendants have already been worked out, so that those matters will not trouble the Tribunal.

36. A related consideration has been a submission advanced that the problems which have arisen cannot be cured by costs orders because the plaintiff is impecunious and any orders made against him would be of little effect. I am not sure that the submission is valid. The Tribunal has wide costs powers and it is surely not beyond the wit of the experienced and diligent counsel who are appearing in this case to make submissions which would make cost orders effective. It seems to me not to be necessary to try to make suggestions in that regard at this stage but I would have thought that effective cost orders could be made. That being so it might assist everybody if those advising the plaintiff point out to him that if the matter continues, his misconduct is likely to be visited back on himself and that the financial impost which he may have to deal with is running at something like $20,000 a day wasted.

37. I am satisfied that it has been demonstrated that injustice is being visited upon the defendants. The real question is whether because of that fact the Court should step in and strike out or stay the plaintiff’s claim as the authority of Walton v Gardiner demonstrates. The Tribunal must undertake a balancing exercise. Bearing in mind what Dixon J had to say in Cox v Journeaux (Supra) it seems to me that on balance the Tribunal’s duty is to hear this case and to make such orders as it can at the end of it to deflect from the defendants to the plaintiff the oppressive costs problem which his conduct may have caused.

38. As a related consideration to do with the further conduct of the case, to date the Tribunal has accepted the contention advanced by the plaintiff that his health is so poor that the Tribunal should sit somewhere close to where he lives for his convenience. Evidence has been adduced in connection with this application which causes me to say that those concessions ought no longer be made for him. The evidence and the matters which cause me to say that are as follows.

39. Firstly, his own evidence is that since 2000 he has been to Sydney perhaps on fifteen occasions or ten occasions or one or two occasions. Financial records obtained in respect of him demonstrate that he has been in Sydney or that someone has been in Sydney operating his cashcard accounts on at least the following dates, 2 February 2000, 19 July 2000, 20 July 2000, 14 August 2001 at Gosford rather than Sydney, 10 September 2001. There have been other operations on his accounts which may have represented his attendance in Sydney or may have represented some telephone computer transaction, it is not possible to say, but the combined effect of his evidence and the evidence relating to his bank accounts suggest that he is a great deal more able to move around and in particular to travel to Sydney than he has been prepared to acknowledge.

40. The second thing to observe about his ability to travel is that he was able to travel to Port Macquarie with a friend whom he identified as Andie McFeat, however that is spelt, to visit his storage facility there. He stayed overnight at Port Macquarie.

41. Thirdly, he recently renewed his passport, as to which he said he was going to take a few boat trips.

42. Next, it may be observed that the applicant has two credit cards, one of them with a $10,000 limit.

43. The next thing to be noted is that on 25 September 2002 the applicant testified that he has been managing without his carer at his caravan, Mrs Small, and expected to be able to manage without her for one and a half weeks.

44. I conclude that the applicant is able to travel to Sydney if he wants to and that the rest of this case ought to take place in Sydney.

45. On the morning of Friday last, the day on which this application was argued, a document was received from the plaintiff by way of fax. It was ultimately tendered in the proceedings to strike out his statement of claim. The parts tendered were as follows:

Hello, well, I can’t say much as my behaviour and abusive nature, I call it my dark and nasty side. ..... I have no excuses except to say sorry in a big way and if given the chance I will certainly try my hardest to curb my behaviour. ..... I’m sorry and full of remorse ... my anger has now left me and I am starting to feel for other people again as my dark side feels for nobody.

46. The fact of the apology is noted. The plaintiff can demonstrate his remorse when the proceedings are resumed by behaving in a reasonable fashion. As a spur to him in that regard may it be pointed out that wasted costs resulting from his misconduct are likely to result in orders diminishing whatever it is he obtains from these proceedings, if anything, and the rate at which such costs are likely to be assessed are, as best I can tell, something like $20,000 a day.

47. Reference was made in submissions to an alternative power to strike out the proceedings, which power is contained in SCR Part 33 Rule 6(2). As the matter was not argued and in light of the conslusions expressed herein, it is not necessary to deal with the matter further.

48. I dismiss the application to strike out the proceedings.

49. I reserve the question of costs in respect of the application.

50. I indicate that because the plaintiff’s conduct brought about the application there should be no order requiring the defendants to pay his costs in respect of the application but I wish to reserve the question of costs until the end of the proceedings.

51. It seems to me that the best thing now to do is to fix a date for further directions. I suppose if we pick a day a month or so away that would be sufficient. The plaintiff can organise his affairs and he will be able to utilise the same means of travel that he used to come down to Sydney on all the other occasions.

52. I direct the Registrar to furnish to the plaintiff personally a copy of these reasons.

Ms A Katzmann, SC instructed by Turner Freeman appeared for the plaintiff
Mr M J Joseph, SC instructed by Holman Webb appeared for the 1st defendant
Mr M Stevens instructed by Windeyer Dibbs appeared for the 2nd defendant
Mr J Gracie instructed by Vandervords appeared for the 3rd defendant