Williams & Ors v Spautz

[1991] HCATrans 123

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4

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl45 of 1990

B e t w e e n -

ALAN JOHN WILLIAMS, ALLAN

AGIPOTIS MORRIS, COLIN LESLIE

GIBBS, and MARGARET YATES

Applicants

and

MICHAEL EDWARD SPAUTZ

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MAY 1991, AT 12.53 PM

Copyright in the High Court of Australia

Williams 1 10/5/91

MR c.s.c. SHELLER, QC: If the Court pleases, I appear with

my learned friends, MR B.R. McCLINTOCK and

MR K.P. SMARK, for the applicants. (instructed by

Minter Ellison)

MASON CJ:  Yes. And the respondent appears in person.

MR M.E. SPAUTZ:  Yes, Your Honour.

MASON CJ: Yes. Would you take a seat at the bar table,

Mr Spautz. Yes, Mr Sheller.

MR SHELLER:  If Your Honours please. Your Honours, may I

hand up four copies of an outline of argument which

has been supplied to the respondent.

MASON CJ:	Thank you.
MR SHELLER:	Your Honours, in this substantial application

book the proceedings with which Your Honours are

concerned can be found referred to in the judgment

of Mr Justice Priestley at page 121. Firstly,

Your Honours, the case of Spautz v Williams as it

is there called and, Your Honours, at the bottom of

the page, the part of the claim that was made by

Professor Williams which is before the Court now is

referred to at line 20, that is to say:

a declaration that the prosecution commenced

by Dr Spautz, a copy of which was annexed to

the summons, was an abuse of the process of
the court in which it was commenced; and

orders that the prosecution against him be

stayed permanently, and that Dr Spautz be

restrained from prosecuting it further.

And Your Honours will see at line 10 at page 122,
the nature of the proceedings before the magistrate

were criminal defamation under the Defamation Act.

Then, Your Honours, at the bottom of page 122, the

second proceedings, which were those by Mr Morris

against Dr Spautz, and that was a conspiracy to

injure by illegal means. That is referred to on

page 123. The third proceedings are referred to on

page 123, and those were by Mr Gibbs against

Dr Spautz. And Your Honours are only here

concerned with the part of Mr Justice Smart's
orders which were concerned with abuse of process.

Your Honours, those declarations and orders are set out at page 106 in the application book and

relevantly, so far as Professor Williams is

concerned, Your Honours will find them, 2 and 3 on

page 106. So far as Mr Gibbs is concerned, it is

No 1 at the bottom of page 107 and No 2 on the next

page; and so far as Mr Morris is concerned, it is 2

and 3 which are found on page 109.

Williams 2 10/5/91

Your Honours, as appears from the judgment of

Mr Justice Priestley at page 135, the basis upon

which Mr Justice Smart held that there was here an

abuse of process - if I could invite Your Honours

to go to line 20 on page 135 - was his conclusion

that the criminal proceedings against these

particular gentlemen:

"were instituted with the predominant purpose

of placing pressure on the University of

Newcastle to reinstate him and/or agree to a

favourable settlement of his wrongful

dismissal suit".

That was the ground, and Your Honours will find

it - it is probably unnecessary to go to it, but it

is referred to in Mr Justice Smart's judgment at

page 39, line 5.

Now, Your Honours, the basis upon which the

appeal against those declarations and orders was

upheld was that proof of predominant improper

purpose on the part of a person prosecuting does

not entitle a supervising court to prevent the

litigant prosecuting. Your Honours, in large

measure the conclusion reached - and I should say,

Your Honours, that, of course, Mr Justice Mahoney

dissented, but the majority judgment was that of

Mr Justice Priestley. That conclusion was said to

be arrived at as a result of guidance taken from

the decision of this Court in Jago.

HIS HONOUR: Well, it is not readily apparent what Jago has

to do with the case now before the Court.

MR SHELLER:  No. Your Honours, it has to do with it in this

sense: in that Jago, of course, primarily was

concerned with whether there was a right to speedy

trial. Involved in that was a question as to

whether delay involved unfairness, perhaps to such
an extent that there was an abuse.	Now, in the

course of that discussion, Your Honour the

Chief Justice, Justice Brennan and Justice Toohey

had each something to say, which we would say is

important, about abuse of process and what they say

is entirely contrary to what is said by

Mr Justice Priestley, and it is those passages that

I would particularly refer to in support of this

application.

MASON CJ: Yes, I follow that. Now, could you just identify

for us first what was the precise finding made by

Mr Justice Smart in relation to improper purpose?

You have referred to page 39. His finding seems to

commence at page 38, around about line 18 and maybe

he discusses it earlier, but I was concerned to

know whether His Honour was implying that there was

Williams 10/5/91

an element of purpose in securing a conviction in

itself.

MR SHELLER:	Your Honour, it is hard to answer that question with confidence. His Honour certainly does not
express that.  When His Honour talks about
"predominant purpose being to bring pressure on the
university to reinstate Dr Spautz", the other purposes to which he refers on page 38 are:

to vindicate his reputation and to collect

material for his research into corrupt

practices in Australian institutions.

And he says those purposes were:

interwoven with the purpose of exerting

pressure upon the University - - -

MASON CJ: Yes, but mind you, His Honour seems to be holding

that they are improper purposes anyhow but the

difficulty really arises from the earlier

interpolation:

most of which were also improper - - -

MR SHELLER:	Yes, I appreciate that, Your Honour.
MASON CJ:	- - - and that seems to imply that there were

some proper purposes or a proper purpose.

MR SHELLER:  Yes. Your Honour, we say that it does not

matter, that what is found here is a predominant

purpose:  a controlling; a prevailing purpose, and

to put it by way of illustration, it is as if an

officer of the Crown announced that he was

prosecuting somebody for the predominant purpose of

removing them or having them removed from office.

Now, we would respectfully submit that as a matter

of application of what might be said to be the

credit of the legal system - if one can call it

that - for somebody to announce that that is his

purpose - - -

GAUDRON J: But that purpose by itself does not really tell

you anything, does it, Mr Sheller? If his purpose
is the consequence of his or her estimation that

the evidence discloses a criminal offence, then the

purpose was entirely legitimate, surely.

MR SHELLER:  We would respectfully submit, Your Honour, the

answer to that is "No", for the reasons that have

been mentioned in the passages in the judgments in

Jago' s case.

Williams 4 10/5/91

MASON CJ:  Mr Sheller, we will adjourn now and you can take

up further answer to that question at 2 o'clock.

We will resume at 2 o'clock.

MR SHELLER: If Your Honours please.

AT 1.05 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.04 PM:

MASON CJ: Yes, Mr Sheller?

MR SHELLER:  Your Honours, I got to the point before lunch

where I had put forward a suggestion that if an

officer of the Crown's avowed purpose in

prosecuting somebody, the avowed predominant
purpose was to remove him from office, that would

be an abuse of process.

Now, Your Honours, it is not possible for me

to go to the evidence here and say that I can

demonstrate the purposes were only improper but, we

submit that predominance in the sense of that

purpose which prevails in setting about to achieve

a desired result is sufficient in this context.

MASON CJ: But, can I ask you what about the purpose

temporally? Was the purpose to secure a conviction

and then to bring about results that you would

describe as improper or was the purpose, by the
institution and the maintenance of the proceedings,

without securing a conviction to achieve the two

results?

MR SHELLER:

The latter, Your Honour, the institution of the

proceedings. Now, Your Honours, may I go to Jago's

case just to refer to the parts in the judgments to

which we make reference in our submission, and

could hand up to Your Honours photostats of that

decision.

In the written submission in paragraph 6 we

have sought to set out the nub of what was said by

Justice Brennan. If I could start by going to his

judgment, at page 47, as being a description of

when an abuse of process occurs; to come back to

Your Honour the Chief Justice's judgment to point

out what is seen as the rationale for it.	On
page 47, in the last paragraph on the page,

starting at the second sentence, His Honour said:

Williams 10/5/91

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.

Now, pausing there, in his judgment,

Mr Justice Priestley, when referring to this case,

picked up the second of those alternatives but not

the first, that is to say, for a purpose which it

is not intended to serve. His Honour then went on:

The purpose of criminal proceedings, generally

speaking, is to hear and determine finally whether the accused has engaged in conduct
which amounts to an offence and, on that

account, is deserving of punishment. When

criminal process is used only for that purpose

and is capable of serving that purpose, there

is no abuse of process.

So, again, both those conditions are there referred

to by His Honour.

Although it is not possible to state

exhaustively all the categories of abuse of
process, it will generally be found in the use
of criminal process inconsistently with some
aspect of its true purpose, whether relating
to the hearing and determination, its
finality, the reason for examining the

accused's conduct or the exoneration of the

accused from li_ability to punishment for the

conduct alleged against him. When process is

abused, the unfairness against which a

litigant is entitled to protection is his

subjection to process which is not intended to

serve or which is not capable of serving its

true purpose.

Now, Your Honours, that is what we have sought to

express in paragraph 6.

If I could just say in terms of consequence of

that, in the judgment of Justice Toohey at

page 71 - because, of course, when one is talking

about "fair trial", it was pointed out that there

are various ways that one can accommodate that

without the necessity of permanent stay, but when

one comes to abuse, we would submit that what

Justice Toohey says at page 71 - and this is at

about point 7, Your Honours, a sentence which
begins "Where proceedings, His Honour said:

Where proceedings have been instituted for an improper purpose (abuse of process), no remedy

Williams 6 10/5/91

is likely to be appropriate other than a stay

of the proceedings. No directions given by

the judge at trial can protect the accused in
that situation.

Now, for the rationale which we have sought to describe in paragraph 7, could I take Your Honours

back to Your Honour the Chief Justice's judgment at

page 30? Your Honour there quoted from the

judgment of Mr Justice Richardson in the New

Zealand Court of Appeal in Moevao v Department of

Labour, and at the top of page 30 Your Honour

quoted a passage which started with the sentence:

"It is not the purpose of the criminal law to

punish the guilty at all costs. It is not

that that end may justify whatever means may

have been adopted. There are two related

aspects of the public interest which bear on

this. The first is that the public interest

in the due administration of justice

necessarily extends to ensuring that the

Court's processes are used fairly by State and

citizen alike.

And so on, and then a bit further down the passage:

This lead on to the second aspect of the
public interest which is in the maintenance of

public confidence in the administration of

justice. It is contrary to the public

interest to allow that confidence to be eroded

by a concern that the Court's processes may

lend themselves to oppression and injustice.

And then Your Honour said:

In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the

processes preceding them are conducted fairly

and, secondly, that, as far as possible,

persons charged with criminal offences are

both tried and tried without unreasonable

delay.

And Your Honour there dealt with the question of

fairness. Then Your Honour said:

For the reasons given, I agree with the

approach of Richardson J. as I have explained it. Bearing in mind his Honours's relatively

broad view of what may amount to an "abuse of

process", I agree also with his explanation of the rationale for the exercise of the power to

stay a prosecution.

Williams 10/5/91

And then Your Honour then quoted this passage:

"The justification for staying a

prosecution is that the Court is obliged to
take that extreme step in order to protect its

own processes from abuse. It does so in order

to prevent the criminal processes from being

used for purposes alien to the administration

of criminal justice under law. It may

intervene in this way if it concludes from the

conduct of the prosecutor ... that the Court

processes are being employed for ulterior
purposes or in such a way ... as to cause

improper vexation and oppression. The

yardstick is not simply fairness to the

particular accused. It is not whether the

initiation and continuation of the particular

process seems in the circumstances to be

unfair to him. That may be an important

consideration. But the focus is on the misuse

of the Court process by those responsible for

law enforcement. It is whether the

continuation of the prosecution is
inconsistent with the recognized purposes of

the administration of criminal justice and so

constitutes an abuse of the process of the

Court."

Now, put bluntly, we would respectfully submit that

what the Court of Appeal concluded in this case, or the rationale for its conclusion, flies in the face of that.

May I, Your Honours, just on one more matter

on rationale, invite Your Honours to look at just

another part of Mr Justice Richardson's judgment in

Moevao, if I could hand that up to Your Honours.

It is again at page 482, right at the end of the

judgment, where His Honour said, at line 7:

Consideration of these kinds are, in my

view, at the heart of the abuse of process

principle. The concern is with conduct on the

part of a litigant in relation to the case

which unchecked would strike at the public

confidence in the Court's processes and so

diminish the Court's ability to fulfil its

function as a Court of law. As it was put by

Frankfurter Jin Sherman v United States:

"Public confidence in the fair and honorable

administration of justice, upon which
ultimately depends the rule of law, is the

transcending value at stake".

Now, Your Honours, we respectfully submit that

that principle and that rationale - if I could

invite Your Honours to go back to page 5 of our

Williams 10/5/91

written submission - stands behind the principle as it has been enunciated not only in Moevao's case in

New Zealand but also in England - and we refer to

In re Majory and to Goldsmith v Sperrings which was discussed at some length by Mr Justice Priestley.

MASON CJ:  They were civil cases, were they not?

MR SHELLER:  They were civil cases, Your Honour, yes. But

if I could just, Your Honours, hand up Majory to

refer Your Honours to a very short statement of

what there is said to be the general rule. At

page 623 - and this, as we say, Your Honours, is a

reserve decision of the Court of Appeal in England

and it is a decision of the whole court, given by

Lord Evershed. The bottom of page 623:

The so-called "rule" in bankruptcy is, in

truth, no more than an application of a more

general rule that 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.

Now, Your Honours, if one goes to the judgment

of Mr Justice Priestley here - if I could ask

Your Honours to go to paragraph 8 in our written

submission - when His Honour, at page 149 in the

application book, comes to deal with Jago's case -

and perhaps if I could invite Your Honours to go

back to page 148, His Honour there said that he was

taking up "the guidance to be obtained from Jago"

bottom of the page His Honour refers to passages in	to apply it in the appeal before the court. At the
Your Honour the Chief Justice's judgment but it
appears that he makes no reference to the passage
from Your Honour's judgment that I read from
page 30. He, as it were, passes over that. And,
similarly, when one comes to His Honour Justice Brennan's judgment, at about line 20 he
just deals with that alternative or that aspect
that says that a trial is not capable of serving
its true purpose. He leaves out the other
alternative that it is not intended to serve that
purpose. And when he comes, at page 151, to deal
with Justice Toohey's judgment, that is put aside, with respect, on the basis that:

Williams 9 10/5/91

His reasons were concerned much more with fair

trial than abuse of process.

That is at line 21. And then a bit further down:

In the absence of elaboration of these views

(unnecessary for his reasons in the case) I

would not take him as committing himself to
the proposition that improper purpose simply

of itself would justify a stay of proceedings.

GAUDRON J:	Now, you have to say - that is your point, your submission, that by itself, providing it is the
predominant purpose, that is sufficient.
MR SHELLER:	Yes.
GAUDRON J:	Even if the proceedings are capable of serving

their purpose and it is intended that the

predominant purpose should be achieved by their

serving their true purpose.

MR SHELLER:  Yes. Your Honour, clearly enough the

proceedings may or may not have basis. Now, if

they have no basis, that is an accepted ground of

abuse. This is on the assumption that they have

basis but the predominant purpose for instituting

them is collateral.

GAUDRON J:  And also one that will result from them serving

their true purpose, in this sense?

MR SHELLER:  Your Honour, it may or may not.

GAUDRON J: Yes. You say that is irrelevant.

MR SHELLER: That is irrelevant. But, Your Honour, if the

institution of itself, as here was held, is for

that predominant purpose, then if that predominant

purpose is achieved, Your Honour, whether or not

the matter proceeds to an ultimate hearing is

beside the point.

DAWSON J:  And the same principle would apply in civil and

criminal procedures?

MR SHELLER:  Of course, it is more difficult in civil

proceedings because one gets involved, for example,

in questions of settlement of civil proceedings.

But, Your Honour, as a matter of principle, the answer, we would respectfully submit, is yes, as

the English cases suggest. An example is a gagging

writ in a defamation action and that is discussed

in Goldsmith's case. So, the answer to Your Honour

is, in principle, it applies to both.

Williams 10 10/5/91

GAUDRON J:  Where does one draw the line in terms of a test

case?

MR SHELLER: Well, Your Honour, we have a case here in which

the avowed predominant purpose has been found to be

as described by Mr Justice Smart and, Your Honour,

we say that the Court of Appeal has simply said

that there is no power in the court to stay those

proceedings in the supervising court. We

respectfully say that - and the court arrives at

that conclusion in reliance substantially on what

this Court had said in Jago's case.

DAWSON J:  And the proceedings are not frivolous, not

vexatious.

MR SHELLER:  We assume not for this purpose, yes,

Your Honour. We assume that for this purpose.

Your Honours, we would respectfully submit that

this is a matter of great public importance and

that one has here a clear and obvious diversion between what is said in the Court of Appeal and what was said by those members of this Court to whose judgments I referred in Jago's case.

Your Honours, in paragraph 9 we refer to what

we would submit is the question of the question of

law being one of public importance. We submit that

the Court of Appeal's judgment, in effect, permits
the Crown or the private citizen to commence

criminal prosecutions for avowedly alien purposes.

Now, that, we would submit, is a matter of great

public importance.

GAUDRON J:	What if the Director of Public Prosecutions took over these proceedings? Would they be infected by
the purpose which you say attends Dr Spautz's
institution of the proceedings?

MR SHELLER:  They may be, Your Honour, with respect. I

mean, it would depend a bit on the factual

situation whereunder that came about. They may be.

I mean, what the citizen is being protected from is

this particular sort of abuse and - - -

DAWSON J:	But why should he be? Why is it not in the public interest that crimes, if they have been
committed, should be prosecuted, whatever the reasons for the prosecutor bringing the
prosecution?
MR SHELLER:	Your Honour, the answer to that is the answer

that the criminal law is not concerned, as it were,

with convictions at all costs.

DAWSON J: Not at all costs but it is certainly concerned

with convictions -

Williams 11 10/5/91

MR SHELLER:	Yes, of course, Your Honour, but - - -
DAWSON J:	- - - of crimes where crimes have been committed.

MR SHELLER: But, Your Honour, this is a case in which the

prosecution is instituted for an avowedly improper
purpose. Now, that, we would submit, can - I mean,

ultimately, of course, it is a question as to

whether or not the court considers that the

proceedings should be stayed.

DAWSON J: But you carry that forward, "Well, perhaps that

is so." And if there is no basis for the

prosecution, then it will disappear at some stage

but if there is a basis for it, it matters not what

the motivation was. I am not putting that as a

proposition, I am just suggesting it to you.

MR SHELLER:  Your Honour, that, obviously, with respect, is

the argument that is put the other way but we would

respectfully submit that that is quite contrary to

the views certainly expressed by Justice Brennan in

Jago's case, and we would respectfully submit that

that picks up a principle of long standing and it

is also, we would respectfully submit, contrary to

the import of what Your Honour the Chief Justice

says in that case. And, at the moment,

Your Honour, the law simply stands that on the one

hand one has that in Jago's case and, on the other
hand, one has a decision here which effectively

says the supervising court has no power. Whatever

the circumstances - if there is this alien purpose,

whatever that purpose may be - and, indeed, as far as it goes, Your Honours, even if it were the sole

purpose, still the court has no power. Now, we

would respectfully submit that that is an extreme

position to reach and is contrary to all authority.

GAUDRON J:  Can informations be withdrawn other than by

leave?

MR SHELLER:  I think the answer to that, Your Honour, is no

but I do not pretend to be entirely familiar with

that.

GAUDRON J: It does seem strange if, an allegation of a

criminal offence having been made, it cannot be

terminated save by leave and yet it could be

stayed, you say, by a supervising court. There

does seem to be some tension there, Mr Sheller.

MR SHELLER:  Your Honour, it goes to public confidence in

the administration of justice. That is what is

seen as the principle at issue here. What is the

public confidence in a system of justice whereunder

people can use criminal proceedings for alien

purposes.

Williams 12 10/5/91

GAUDRON J: Well, it is not necessarily for an alien

purpose. You see, on the basis of your submission,

you accept that it is not even inconsistent, it is

just another purpose; a purpose which, on your

submission, might only be realized by the

proceedings serving their true purpose.

MR SHELLER:  Your Honour, with respect, if I have suggested

that here it is not an alien purpose - my

submission is that it is.

GAUDRON J: Well, you are using "alien" then as meaning

something - to mean extraneous and not

inconsistent?

MR SHELLER: Something that is not the purpose of the

administration of the criminal law, Your Honour.

Criminal law is not there - - -

GAUDRON J:  You do not mean inconsistent with it?

MR SHELLER: - - - to assist people to be reinstated in

positions in universities.

GAUDRON J: That may be so so but one can think of many

cases in which reinstatement, for example, very

much does depend upon criminal proceedings running

to an end, not perhaps at the other side of the
coin but in industrial activities there are many
cases of reinstatement that depend upon persons
being acquitted of charges. It is the other side

of the coin.

MR SHELLER: But, Your Honour, the question is what is the

purpose? What is the design which led to these
prosecutions being instituted? What is the result

which led to these prosecutions being instituted?

And we would respectfully submit that in this it is

plain, and to allow it to proceed and for the court

to say that it is simply powerless, we would - - -

GAUDRON J: Well, it says "powerless" but what it may say is

that, in itself, does not constitute an abuse. The

language is - I mean, it is not a question of power

at all really, is it, Mr Sheller?

MR SHELLER: Well, Your Honour, it is simply saying that the

court cannot interfere to stay proceedings

instituted for this purpose.

GAUDRON J: Because they are not an abuse is ultimately what

is being said.

MR SHELLER:  If that is what is being said, we would

respectfully submit, it flies in the face with what

is said here.

Williams 13 10/5/91

GAUDRON J: Without more because - that is not exactly what

the court said either. It said "purely, on that

ground".

MR SHELLER:	I am sorry, Your Honour, I do not - - -
GAUDRON J:	The question is one of sufficiency, whether what you would call - perhaps we will say an extraneous
motive is of itself sufficient. That is the
question.
MR SHELLER:	A predominant purpose.
GAUDRON J:	To constitute an abuse of process.

MR SHELLER: Yes, and we would submit that - I am sorry, I

am repeating myself, but we would submit so to hold

is contrary to authority as it appears and

certainly contrary to what is said in Jago.	I do
not - - -

DAWSON J: It really amounts to saying that an individual

should not be allowed to manipulate the law for his

own purposes.

MR SHELLER:  But the criminal law, if I may ask it

rhetorically, Your Honour?

DAWSON J: Criminal law.

MR SHELLER:  Yes. We would respectfully submit that an

individual should not be allowed to manipulate for

his own purposes.

GAUDRON J: But you say, also, it should not be allowed to

invoke it, for example.

MR SHELLER: Yes. Well, I was dealing with His Honour's

question:  "manipulate".

DAWSON J: Yes. Well, it is a matter of words but the

invocation may be the manipulation.

MR SHELLER:  But I mean it is the same thing, of course.

So, that is the basis upon which we submit that

this is an appropriate case for special leave. If

Your Honours please.

MASON CJ: Yes, thank you, Mr Sheller. What do you say

about this, Dr Spautz?

MR SPAUTZ: Well, Your Honours, I have got here my reply

which I served upon them this morning. I received

their arguments late yesterday and I spent up until

midnight - - -

Williams 14 10/5/91

MASON CJ: Yes. I think you ought to stand in front of one

of the microphones, otherwise your comments may not

be recorded.

MR SPAUTZ:  Thank you. Well, Your Honours, do you want to

read that now or should I make my oral comments and

you can read that later.	How do you want to do
this?

MASON CJ:  We can read it now, which we shall do, and then

you can speak to it if you wish to do so.

MR SPAUTZ: Yes, thank you.

MASON CJ: Yes.

MR SPAUTZ:  May I speak now?

MASON CJ: Yes, Dr Spautz.

MR SPAUTZ: Before I go any further I would like to point

out that my opposition to this application is what

might be considered a formality because I do not

have any profound aversion to going to the High

Court. My main concern is with practical matters

such as the length of time that would take and I am

especially concerned about the fact that, from my

point of view, these issues have long since been

settled, perhaps a century ago, and it has only

been in very recent years that these issues have

come up, this question of improper purpose

constituting an abuse without more. I think my

cases, starting back before Judge Hunt in 1983, were the first ones, to my knowledge, that have

occurred in this century and I think it is because

practitioners have more or less considered it trite

law for this century and therefore have not tried

to raise any such complaints against a criminal

prosecution.

Of course, there is the problem that not many

people have tried to bring criminal prosecutions
personally and so, maybe, it is mainly because

defenders of the accused persons are not about

ready to take on the authorities but they are

perhaps willing to take on a guy like me.

Respectfully, I suggest that the legal profession forgot about the law on this issue and it is now

having to be revived and I think it might be about

time for the High Court to actually sit down and

settle this thing once and for all.	I think it has
been settled already but -

MASON CJ: Well, you seem to be supporting your opponents at

the moment.

Williams 15 10/5/91

MR SPAUTZ: Well, Your Honour, this is mainly from the point

of view of providing the legal profession with an

authoritative statement that is not old one that

they can rely upon from hereon out until the

revolution occurs. Anyway, like I say, this is

more of a formality than anything else. I do not

like the prospect of going to the High Court mainly

because of the cost and time - especially the time

of the Court, my own time is not that valuable. I

do not mind going because I can get legal aid.	In
fact, I have got lawyers all lined up already in
case leave is granted. I am sure I can get legal aid because, after all, I won in the Appeal Court
and therefore it would be unreasonable to deny me
this opportunity.

Before I go any further, I would like to ask

leave of Your Honours that if in case leave is

granted I would like to have the opportunity to

represent myself. I think you can bend the rules

because the rules are set by yourselves and I think

it is traditional that if you see fit you could

allow me to represent myself.	So, I do not
mind - - -

MASON CJ:  You do not need a grant of leave from us,

Dr Spautz.

MR SPAUTZ:	To represent myself.
MASON CJ:	You do not need a grant of leave, not on the

hearing of the appeal itself.

MR SPAUTZ: Thanks, Your Honour. I was told otherwise. In

fact, I think some people have been refused the

opportunity to represent themselves.

MASON CJ:  No, the rules provide that an application for

special leave shall be presented by counsel. That

is the requirement of the rules.

MR SPAUTZ: Okay, I have been - I thought I was misinformed

then by the Registrar.

MASON CJ: But you should not construe my comment to you as

an indication that it would be in your best

interests for you to appear on your own behalf.

MR SPAUTZ: Yes, Your Honour, I understand that.

MASON CJ:  You would be well advised, if leave were granted,

to secure the services of legal representatives.

MR SPAUTZ: Yes. Thanks for the advice, Your Honour. I

have been successful so far in this matter and I

think I could carry it off but - - -

Williams 16 10/5/91

MASON CJ:  Not all the way along the line though.

MR SPAUTZ:  No, no, but in the crucial points. Now, my

reply here I think pretty well speaks for itself

although I must call it to Your Honours' attention that as I mention at the note at the bottom of the

first page, I have not gone to the trouble and

expense - because I am on the dole and could not

afford it, amongst other things - to provide

numerous copies of all of these cases that I have

listed here.

MASON CJ: Well, we would not expect you to do that at this

stage of the proceedings, Dr Spautz.

MR SPAUTZ: Right, I understand, but they have, in fact,

provided me with copies of their's for which I

thank them. However, it should be pointed out that

they do have copies that I provided to them of all

the relevant cases, of which this is only a small

sample. Many years ago in the first instance court

before His Honour Mr Justice Smart, I handed up a

big thick wad of such photocopies and that would

include all these old CLRs, the Bayne cases and

Dowling and Goldsmith, Rozenbes and Varawa. I

mean, these are all binding and they were binding

upon His Honour Mr Justice Smart but he more or

less kicked the ball up to the Appeal Court and for

some reason they did not take much cognizance of my

lengthy lists that I handed up to them. I think

the reason being that they thought Jago did the job

and they did not need to refer back to Bayne and

Dowling and so on.

MASON CJ: But we are not really interested in the history

of the matter. We are interested in hearing

anything you might say by way of argument against

the grant of leave.

MR SPAUTZ:  Yes. I am going to do that right now,

Your Honour. All right, I would like to proceed in

this fashion: first, replying to my friend's

submissions. Then, I would like to go beyond that
and make comments on the main cases that
Your Honours have to consider, namely, the one in
the court below, especially His Honour

Judge Priestley's rulings and on Jago, which would

involve your own as well as two of your other

colleagues.

So, the first thing I want to do is to go

through and sort of briefly comment on my friend's

submissions. I think somewhere along the line he

said that Priestley and Meagher were relying upon

Jago as their main support. Well, I think this is

true but, on the other hand, if you look through

that lengthy judgment you will find numerous

Williams 17 10/5/91

references to other cases as well and, as I

understand it, their arguments do not even require

that they rely upon Jago. I think Jago is, as

Your Honour even mentioned at the beginning,

relatively irrelevant to this case because it was

mainly focusing upon the undue delay or the alleged

abuse - - -

MASON CJ: Yes, it is a fair trial case, it is not a

question of improper purpose.

MR SPAUTZ: That is right. However, I think the reason why

Jago was selected by Priestley in the first

instance is because of all the general statements

that are sprinkled throughout Jago generally.

MASON CJ: Well, certainly. That is an explanation as to

why he referred to it but we are not really

concerned with the motives that he had in referring

to it. We are only concerned with whether or not

there is an important question which should attract
the grant of special leave. Now, you are to direct

your remarks to that.

MR SPAUTZ:  Yes, Your Honour. To make a long story short, I

think that their submissions are to the effect that

Priestley flew in the face of the High Court,

namely, yourself.

MASON CJ:  You might refer to him as Mr Justice Priestley.

MR SPAUTZ:  Yes, Mr Justice Priestley. I think that is his

main argument, that he was in error in the law in

that it flies in the face - to use his own

expression - of what you said, what Brennan J said

and what Deane, I think - Toohey - mainly those

three because the other two evidently were not

concerned about this particular issue and so,

therefore, I say, to make a long story short, far

from flying in the face, I think that it is very

consistent not only with all of those Jago

Justices' rulings but with all of the rulings upon

which those Justices relied.

Now, I guess that is like going to the bottom

line on his arguments which I could get into more

detail but I think that suffices for that purpose.

MASON CJ: Yes.

MR SPAUTZ:  Now, comments on what Mr Justice Priestley

himself said.	Now, I am not going to do, as my
friend did, and quote at length.	I think it would
suffice if I were - - -

Williams	18	10/5/91
MASON CJ:	No.	Well, bear in mind we have read the

judgments so there is no occasion to go to the

judgments in any detail.

MR SPAUTZ: That is right. That is what I want to avoid. I

just wanted to mention the pages if I could,

Your Honours. I think the most juicy passages for

my purposes would be pages 148 in the appeal book

through about 170, something like that because that

gets at the gist of this series of questions about

what is an abuse of process; whether an improper

motive all by itself constitutes grounds for

declaring it an abuse and then permanently staying. I think all these issues are pretty well handled in those pages and I respectfully agree with

His Honour and with Your Honours as well in the

High Court Jago case.

So, I think suffice to say that that is what I would rely upon along with my own cases that I have

listed here of Bayne, Rozenbes, Varawa, and all

those are all consistent with each other.

Now, a few comments on the Jago case. I have

got a copy that my friend provided me with and I

would like to just comment on what pages I think

are especially relevant.

DAWSON J: What is the purpose of these comments, Dr Spautz?

MR SPAUTZ:  The purpose is to focus upon the passages which

my friend claims are contrary to

Mr Justice Priestley.

DAWSON J:  You see, I do not understand you to be saying

there is not an important point involved.

MR SPAUTZ: There is an important involved. There is an

important point.	The important point I am trying
to make is that Jago supports Priestley and vice

versa. I think that what it all boils down to. I

think it would be sufficient for me to say that

without wasting any more of your time. So, I think

that is all I have to say and I am prepared now to

accept your decision.

MASON CJ:  Thank you, Dr Spautz. Do you wish to say

anything in reply, Mr Sheller?

MR SHELLER:  No, Your Honours.

MASON CJ: There will be a grant of special leave in this

case.

MR SHELLER:  Would the costs be the costs in the appeal, if

Your Honours please?

Williams 19 10/5/91

MASON CJ: Well, they always are.

MR SHELLER:  Thank you.

AT 2.45 PM THE MATTER WAS ADJOURNED SINE DIE

Williams 20 10/5/91