Spautz v Morris

[2000] NSWSC 273

CITATION:	Spautz v Morris [2000] NSWSC 273
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC S15832/84
HEARING DATE(S):	3 & 6 April 2000
JUDGMENT DATE:	6 April 2000
PARTIES :	Michael Edward Spautz (Plaintiff) Allan Agipitos Morris (Defendant)
JUDGMENT OF:	Dunford J

COUNSEL :
SOLICITORS:	Plaintiff in person Mr A O'Reilly (Minter Ellison)
LEGISLATION CITED:	Supreme Court Act 1970, s 84
DECISION:	See para 34.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DUNFORD J
THURSDAY 6 APRIL 2000
S15832/84 - Michael Edward SPAUTZ v Allan Agipitos MORRIS
JUDGMENT

1 HIS HONOUR: These proceedings have been listed before me for the purpose of determining whether all of the issues in the proceedings have been determined, and if not to identify the outstanding issues. 2 On the 26 September 1984 Dr Spautz laid an information in the Local Court in Newcastle that Mr Morris conspired with the Honourable Mr Justice Michael Kirby and other members of the University of Newcastle to seriously injure Dr Spautz. The information alleged a criminal conspiracy. 3 On 12 November 1994 Mr Morris initiated these proceedings in this Court by issuing a Summons seeking inter alia, declarations that Dr Spautz was a vexatious litigant and that the prosecution in the Local Court at Newcastle was an abuse of process, and seeking orders for a perpetual stay of the criminal prosecution and an order pursuant to section 84(2) of the Supreme Court Act 1970, that Dr Spautz was a vexatious litigant.
4    On 15 March Dr Spautz filed a Cross-Claim in these proceedings against Mr Morris alleging a civil conspiracy in similar terms to the criminal conspiracy the subject of the Newcastle Local Court proceedings, and claiming damages. For reasons which will become clear when I detail the further history of the proceedings, the prosecution instituted in the Local Court on 26 September 1984 and the proceedings instituted in this Court by Summons on 12 November 1984 have been finally disposed of, but Dr Spautz submits that the Cross-Claim has not yet been finally disposed of. 5    After a contested hearing, in a judgment delivered on 2 October 1987, Smart J made the orders sought by Mr Morris in his Summons, that is to say:

"1. A declaration that the defendant was a vexatious litigant.
2. A declaration that the prosecution in the Newcastle Local Court was an abuse of process.
3. An order that the said prosecution proceedings be permanently stayed.
4. An order that the defendant be restrained from prosecuting the said proceedings any further.
5. An order that Dr Spautz be restrained from laying further informations or otherwise instituting any legal proceedings against Mr Morris in any Court without prior leave of this Court."

6    The substantial ground of his Honour's judgment was that Dr Spautz's prosecution for criminal conspiracy against Mr Morris had been commenced for an improper purpose and was therefore an abuse of process. 7    Dr Spautz's Cross-Claim filed on 5 March 1985 was not before his Honour on that occasion, and is not referred to in his Honour's judgment. The orders made by Smart J were not entered at that stage. 8    On 8 February 1988 Mr Morris filed a Notice of Motion seeking, inter alia, orders that the Cross-Claim be struck out as:

"(1) (a) An abuse of process;
(b) Vexatious;
(c) Defective in form;
(d) Discloses no reasonable cause of action; and
(2) That judgment be entered summarily (for Mr Morris)."

9    The Notice of Motion was made returnable for the 11 March 1998. On 12 February Dr Spautz filed a Notice of Motion also returnable on 11 March seeking orders that the declarations and orders made on 2 October 1987 be set aside. Both Notices of Motion came on for hearing before Smart J on 11 and 15 March 1988, and during the hearing Dr Spautz sought leave to file an Amended Cross-Claim in the form of a pleading. 10    Judgment was reserved on 3 June 1988, Finlay J made orders in a number of proceedings including that the files be remade so as to show Dr Spautz as the plaintiff rather than the defendant. 11    On 17 June 1988 Smart J delivered judgment in respect of the hearing of the 11 and 15 March that year. To understand his Honour's judgment, it is necessary to appreciate that these proceedings were being heard together with a number of other proceedings involving Dr Spautz, including proceedings which for present purposes are essentially similar to the present, instituted against Dr Spautz by Professor Williams, in which similar orders had been made on 2 October 1987, and in which Dr Spautz had filed a similar Notice of Motion seeking to have those earlier orders set aside. 12    In his judgment at pp 2 to 9 his Honour adhered to his earlier judgment and refused Dr Spautz's motion to set aside his earlier orders and then dealt with other matters involving Professor Williams at pp 9 to 16, and Mr Gibbs at pp 16 to 20. 13    His Honour then came again to the current case, and in respect of Dr Spautz's Notice of Motion to rescind the earlier declaration and orders at p 21 declined to do so for the same reasons that he had earlier given in respect of Professor Williams. 14    His Honour then dealt with Mr Morris' Notice of Motion to strike out and/or dismiss Dr Spautz's Cross-Claim filed on 15 March, and at pp 22 to 23 held that a member of a University Council cannot be sued for conspiracy to injure for voting to dismiss a member of the University staff at a Council meeting when the Council had to decide what course of action it would take, and there was an abundance of material available to such Council member to entitle him to vote as he did. He also referred to evidence given by Dr Spautz as to why Mr Morris had been chosen as a defendant. His Honour then concluded:

"Neither the cross-claim as framed nor the proposed amended cross-claim has the slightest prospect of success. I refuse the application for leave to amend the cross-claim. I dismiss the cross-claim."

15 As I read his Honour's judgment, having decided that the Cross-Claim had no reasonable prospect of success, his Honour refused to allow the amendment and exercised the summary powers to dismiss the case under Pt 13 of the Supreme Court Rules. He therefore found it unnecessary to give express consideration to whether the Cross-Claim was an abuse of process or vexatious. 16 In what appears as an appendix to his Honour's judgment following p 29, his formal orders are set out. Because a formal minute had not been entered in respect thereof, his Honour included the orders he had made on 2 October 1987, and in respect of the Cross-Claim his Honour's order was:

"6. Order that Dr Spautz be refused leave to amend his cross-claim and that his cross-claim be dismissed."

The orders in this form were passed, which appears from a document on the Court file duly sealed and signed by the Deputy Registrar but although ordered on 17 June 1988 it appears they were not entered until 13 May 1998, some nine years and eleven months later. Moreover, because of the way the formal minute of order was drawn up, the order relating to the Cross-Claim became the order numbered 4 in the formal minutes of order as entered.

17 Dr Spautz appealed and I have obtained access to, and carefully examined, the Court of Appeal file. The Notice of Appeal was filed on 15 July 1998 and was an appeal against the judgment of 17 June 1988 and the order made on that date. The Notice of Appeal therefore was a composite document relating to all the different proceedings which had been heard together by Smart J, so that whilst Dr Spautz was the appellant there were six different respondents. 18 What is important for present purposes is that the Notice of Appeal specifically refers to order 6 of 17 June 1988 in the appendix to Smart J's judgment concerning Mr Morris, namely, the order that Dr Spautz be refused leave to amend his Cross-Claim and that his Cross-Claim be dismissed, and amongst the orders sought was one that his Cross-Claims be allowed to proceed, with expedition. 19 This Notice of Appeal was amended by leave of the Court of Appeal on 24 October 1998 and once again the Cross-Claims were specifically referred to. The appeals were heard on 13 February 1990 when judgment was reserved and subsequently delivered on 28 November 1990. It is reported at 21 NSWLR 230. 20 As I read the judgments they dealt with the claims by Mr Morris and the other university people to restrain the various Local Court criminal prosecutions and the various declarations and orders which had been made under s 84(2) of the Supreme Court Act (vexatious litigant). No reference appears to have been made to the Cross-Claims. 21 The majority, Priestley and Meagher JJA, were of the view that the Local Court proceedings should not have been stayed and Dr Spautz should not have been declared a vexatious litigant under s 84 (2). No reference appears to have been made to any of the Cross-Claims (in Mr Morris' case claiming damages for civil conspiracy). 22 At the conclusion of his judgment, Priestley JA said at 267 "more matters were dealt with below than this Court has had to consider" but it is not clear to me whether this related to the Cross-Claim against Mr Morris for civil conspiracy. 23 The appeal was stood over to 12 December 1990 for the parties to bring in short minutes. On that day both parties presented draft short minutes to the Court; Dr Spautz's draft short minutes did deal with the Cross-Claims but that presented on behalf of the respondents to the appeal did not. 24 The Court accepted those prepared on behalf of the respondents. The transcript of proceedings on that date records the presiding Judge, Mahoney JA (who had dissented on the appeal, and I note that Priestley and Meagher JJA were sitting with him on the Bench that day) as saying:

"The Court has considered the terms of the short minutes of each party and has in mind what was intended by the judgment. And the Court's opinion is that the orders that should be made are those contained in the short minutes of order prepared by the respondent, that by Mr McClintock on behalf of the respondent. Therefore the orders that the Court makes are that in each of the cases the orders shall be as per the short minutes which I have initialled and which will be placed with the papers."

A copy of the short minutes prepared on behalf of the respondents initialled by his Honour and dated appears on the Court file. Those short minutes in relation to the case against Mr Morris set aside orders 1, 2, 3, 4 and 7 of the declarations and orders made by Smart J on 17 June 1988 but make no reference to order 6 (dismissing the Cross-Claim). The effect of these orders in my view was that the Cross-Claim for civil conspiracy remained dismissed and this appears to have been what was intended by the Court of Appeal. The formal order of the Court of Appeal was entered on 26 February 1991.

25    Subsequently an appeal to the High Court (Williams v Spautz (1992) 174 CLR 509) reinstated the orders of Smart J staying as an abuse of process the Local Court proceedings for criminal conspiracy but the appeal to the High Court did not deal with Dr Spautz's cross-claim for civil conspiracy nor the vexatious litigant issue, in both instances because the High Court was not asked to. 26 The issue of whether the plaintiff is a vexatious litigant is no longer relevant because, by reason of orders made under s 84(1) by McInerney J on the application of the Attorney-General, reaffirmed by Brownie AJ on 18 February 2000: [2000] NSWSC 45, Dr Spautz is presently prevented from instituting any proceedings or any application or appeal in any proceedings without the leave of the Court, and any application for leave requires that he give three days notice in writing to be given to the Crown Solicitor. 27 As I see the position at present the prosecution for criminal conspiracy against Mr Morris in the Local Court at Newcastle is permanently stayed by virtue of the orders that Smart J made on 6 October 1987 and 17 June 1988, reinstated by the High Court by its order of 27 July 1992; and the claim in this case for civil conspiracy instituted by the Cross-Claim filed on 15 March 1985 was dismissed by Smart J on 17 June 1988, and this order is unaffected by any subsequent order of the Court of Appeal or of the High Court. 28 It follows that at this stage there are no issues in these proceedings still outstanding in this Division. It may be that Dr Spautz could make an application to the Court of Appeal to amend the form of its orders of 12 December 1990 pursuant to the slip rule (SCR Pt 20 r 10) or under some inherent power in the Court, but I express no view on whether such an application would be successful. 29 In particular I note, in addition to the lapse of time, that Smart J's order dismissing the Cross-Claim appears on my understanding to be based on the proposition that a member of a University Council voting on a matter properly before that Council for its determination cannot of itself amount to evidence of a civil conspiracy with other members of the Council. 30 His Honour does not appear to have considered in relation to the Cross-Claim whether such proceedings were an abuse of process and ought to be stayed on that ground, but it may be that if the reasoning of the High Court in Williams v Spautz was applied to the Cross-Claim for civil conspiracy, a similar result would eventuate. These matters are not for my consideration at the moment and I express no concluded view on them. 31    I do observe, however, that in view of the order of McInerney J affirmed by Brownie AJ, in order to make any application to the Court of Appeal for amendment of its judgment Dr Spautz would require leave of this Court, and to obtain such leave he would need to make a formal application and give not less than three days' notice of such application to the Crown Solicitor. 32    Dr Spautz has submitted that I should refer the Cross-Claim to the Court of Appeal of my own motion but in all the circumstances I do not consider that is an appropriate course. I consider that the appropriate course is to make a declaration as to the conclusions I have reached and give a direction that if Dr Spautz wishes to make application for leave to make an application to vary the formal orders of the Court of Appeal he should do so within a limited time. 33    As this hearing has been initiated by the Court of its own motion rather than by either of the parties, I consider it appropriate that each party pay their own costs thereof. 34    I declare that Dr Spautz's claim against Mr Morris for damages for civil conspiracy is and remains dismissed pursuant to orders of Smart J made 17 June 1988, and I declare that there are no outstanding issues in these proceedings remaining for determination in this Division. I direct that any application by Dr Spautz for leave to apply to the Court of Appeal to vary or amend its orders of 12 December 1990 be commenced within 28 days of today. I make no order as to the costs of this hearing.

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Last Modified: 09/25/2000