Batistatos v Roads and Traffic Authority of New South Wales

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow,Hayne,Crennan JJ,Kirby J,Callinan J,Heydon J
• Judgment Date: 14 June 2006
• Neutral Citation: 2006-0614 HCA B,[2006] HCA 27
• Court: High Court
• Docket Number: S530/2005 & S531/2005 Matter No S531/2005
• Date: 14 June 2006

[2006] HCA 27

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ

S530/2005 & S531/2005

Matter No S530/2005

Matter No S531/2005

Andrew Batistatos by his Tutor William George Rosebottom

Appellant

and

Roads and Traffic Authority of New South Wales

Respondent

Andrew Batistatos by His Tutor William George Rosebottom

Appellant

and

Newcastle City Council

Respondent

Representation

Matter No S530/2005

B M Toomey QC with S J Maybury for the appellant (instructed by T D Kelly & Co)

I D Temby QC with C F Hodgson for the respondent (instructed by Crown Solicitor for New South Wales)

Matter No S531/2005

B M Toomey QC with S J Maybury for the appellant (instructed by T D Kelly & Co)

M J Joseph SC with S P W Glascott for the respondent (instructed by Phillips Fox Lawyers)

Limitation Act 1623 (Imp) (21 Jac I c 16), ss 3, 7.

Limitation Act 1969 (NSW), ss 5, 11(3), 51(1), 52.

Supreme Court Act 1970 (NSW).

Supreme Court Rules (NSW), Pt 13 r 5.

Batistatos v Roads and Traffic Authority of New South Wales Batistatos v Newcastle City Council

Abuse of Process — Delay — Proceedings commenced in 1994 in respect of causes of action which accrued in 1965 — Appellant suffered quadriplegia and other injuries in motor accident allegedly caused by the negligence of, and nuisance created by, the respondents — Appellant born mentally retarded and later orphaned — Applications brought by respondents for summary dismissal or permanent stay for abuse of process — Whether, due to the effluxion of time since the causes of action accrued, a fair trial was not possible for the respondents.

Abuse of Process — Delay — Factors to be considered in determining whether delay precludes the conduct of a fair trial — Whether actions commenced by appellant untenable or futile — Whether actions commenced by appellant present real question to be determined — Sufficiency of evidence — Relevance of fundamental right to bring legal proceedings — Relevance of summarily denying right to a trial — Relevance of appellant's severely disabled condition — Relevance of the extent of the investigations made by the parties — Relevance of the disparity in the economic resources of the parties — Relevance of fact that the 30 year ultimate limitation bar had not yet descended.

Limitation of Actions — Appellant born mentally disabled and suffered quadriplegia in the accident out of which these proceedings arose — Appellant's causes of action not subject to 6 year limitation period which would otherwise have been imposed by the Limitation Act 1969 (NSW) by reason of the appellant's disabilities — Actions commenced within 30 year ultimate limitation period — Whether Limitation Act 1969 (NSW) precludes court from summarily dismissing or permanently staying proceedings for abuse of process when actions commenced before expiry of limitation period — Whether exercise of power to dismiss or stay in such circumstances is exceptional and requires proof of oppressive or contumelious conduct on the part of the plaintiff.

Courts — Powers of courts — Whether supplementary power of Supreme Court of New South Wales properly described as inherent or implied — Distinction between inherent powers and implied powers — Basis from which the State Supreme Court derives its jurisdiction to summarily dismiss or permanently stay proceedings.

Courts — Powers of courts — Jurisdiction — Rules of Court — Whether Rules of Court are exhaustive of the circumstances in which the Supreme Court can dismiss or stay proceedings for abuse of process — Weight to be given to the relevant legislative context in exercising discretion to dismiss or stay proceedings — Where both Rules of Court and supplementary jurisdiction empower Supreme Court to stay or dismiss proceedings for abuse of process — Relationship between supplementary jurisdiction and Rules of Court.

Words and phrases — ‘abuse of process’, ‘delay’, ‘inherent jurisdiction’, ‘implied jurisdiction’.

ORDER

In each matter, the appeal is dismissed with costs.

1 Gleeson CJ, Gummow, Hayne and Crennan JJ. These appeals from the New South Wales Court of Appeal 1 were heard together. The issues which arise illustrate the point made by Griffith CJ in Varawa v Howard Smith Co Ltd2 that the term ‘abuse of the process of the Court’ has been (as it still is) used in many senses. Reference to some of these senses of the term should first be made.

The meaning of ‘abuse of process’

2 The process with which these appeals is concerned is that of the Supreme Court of New South Wales. But it appears that the procedures of non-curial bodies may attract the ‘abuse of process’ doctrines. Thus, an unchallenged assumption underlying the majority decision of this Court in Walton v Gardiner3, to which extensive reference was made in submissions in these appeals, was that the entertainment by a tribunal constituted under the Medical Practitioners Act 1938 (NSW) of complaints referred to it, might be stayed as constituting an abuse of process. However, in his dissenting judgment, Brennan J carefully distinguished the concept of alien purpose seen in the principles respecting abuse of administrative power, where the focus is upon the purpose of the repository of the power, rather than upon the purpose of the moving party 4.

3 Distinctions also are to be drawn between an order staying pending proceedings as abusive (with which these appeals are concerned) and an action for what have become recognised in Australia as the torts of malicious prosecution and of collateral abuse of process. In their discussion of the subject in Williams v Spautz5, Mason CJ, Dawson, Toohey and McHugh JJ remarked 6:

‘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.’

From what follows in these reasons, it will be apparent that the central requirement specified in the above passage does not apply outside the area of tort.

4 There is a further point to be made here. Objections by plaintiffs to the exercise of the power to order a stay which rely upon the point that there are available to the defendant remedies in tort have not prevailed. The reason was explained in the joint judgment in Williams v Spautz as follows 7:

‘Neither the action for malicious prosecution nor the action for collateral abuse offers the prospect of early termination of the subject proceedings. An action for malicious prosecution cannot be brought until those proceedings have terminated. Although an action for collateral abuse can be brought while the principal proceedings are pending, the action is at best an indirect means of putting a stop to an abuse of the court's process which the court should not permit to continue.’

5 These appeals concern abuse of process as understood in the exercise of the ‘inherent jurisdiction’ of superior courts to stay proceedings. The phrase ‘inherent jurisdiction’ itself is a slippery one. In Australian Securities and Investments Commission v Edensor Nominees Pty Ltd, Gleeson CJ, Gaudron and Gummow JJ remarked 8:

‘“Jurisdiction” and “power” are not discrete concepts. The term “inherent jurisdiction” may be used, for example in relation to the granting of stays for abuse of process, to describe what in truth is the power of a court to make orders of a particular description 9. In Harris v Caladine10, Toohey J said:

“The distinction between jurisdiction and power is often blurred, particularly in the context of ‘inherent jurisdiction’. But the distinction may at times be important. Jurisdiction is the

authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and ‘such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred’ 11“.’

Reference in this regard also may be made to the judgment of McHugh J in Solomons v District Court (NSW)12, and to that of Gummow, Hayne and Heydon JJ in Minister for Immigration and Multicultural and Indigenous Affairs v B13.

6 Accordingly, in Hunter v Chief Constable of the West Midlands Police14 Lord Diplock used the term ‘inherent power’ rather than ‘inherent jurisdiction’. In Walton v Gardiner15, the majority, Mason CJ, Deane and Dawson JJ, accepted as correct the passage in Hunter16 in which Lord Diplock spoke of ‘the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people’. His Lordship went on to describe as ‘very varied’ the circumstances where ‘abuse of process’ can arise 17. It will be necessary to return to that consideration later in these reasons.

7 In Hunter18, Lord Diplock disavowed the use of the word ‘discretion’ in describing the exercise of the power to prevent abuse of process. Thereafter, in R v Carroll19, Gaudron and Gummow JJ observed that the use of the term ‘discretion’ in this context indicates no more than that, although there are some clear categories, ‘the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse’. They added 20:

‘It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not. However, as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted...