Case: Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713
Outcome: cited
any event, the caution with which courts approach an application for a permanent stay of proceedings before them is also well-known. It has been described as an exercise of discretion by a court in only the most exceptional circumstances. As Dixon J said in Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713 at 720: 'The inherent jurisdiction of the Court to stay an action as vexatious is to be exercised only when the action is clearly without foundation and when to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff. 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.' [see also Batistatos at 71, Jago at 31] In concluding that there was no error of principle in the decision of the Court of Appeal, the majority of the High Court said: '... in the circumstance of the present case, attention must be directed to the burdensome effect upon the defendants of the situation that has arisen by lapse of time. The Court of Appeal held that this was so serious that a fair trial was not possible. The result was that to permit the plaintiff's case to proceed would clearly inflict unnecessary injustice upon the defendants. What Deane J said in Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 at 247, with respect to the staying of local proceedings, is applicable also to a case such as the present one. His Honour emphasised that there is no 'requirement that the continuance of the action would involve moral delinquency on the part of the plaintiff'; what was decisive was the objective effect of the continuation of the action. In assessing that effect there must be taken into account the consideration expressed by Dixon in Cox v Journeaux [No 2] [1935] HCA 48 ; (1935) 52 CLR 713 and set out earlier in these reasons. Bryson JA in terms did so. He went on to remark in that connection that the defendants had not shown that the plaintiff's action was "clearly without foundation". But, he concluded that there was "in practical terms nothing of utility to place in the balance against the defendants' claim for a permanent stay.' [[2006] HCA 27 at [69-71]] Although as a general rule the applicants are entitled to bring their claims before the Court and have their claims heard, as I have already noted this entitlement is subject to principles in respect of abuse of court process. In reviewing the material before me however, I keep in mind the warning of Dixon J in Cox v Journeaux and approach the matter with caution. Key questions of evidence before the Court, for the purposes of this analysis, may be summarised as follows: 1. What is the likelihood of Mr Allan Hockey giving evidence? 2. To paraphrase Bryson JA in Batistatos , is there useful evidence available upon which to conduct a trial, or is the position that a trial of the proceedings could not rise above a debate about the effect of scraps of information with the result that no more than a formal enactment of the process of hearing and determining the plaintiff's claim could take place? This second question should be particularly considered in light of evidence to which the applicants refer, including: A) Records before the Court, as contained in the affidavit of Mr David Sutton sworn 22 November 2005, and the further evidence given by Mr Sutton arising from cross-examination on 17 July 2006. B) The affidavit of Mr Patrick Killoran sworn 12 May 2006. C) Affidavits of Sir Llewellyn Edwards, Hugh Lionel Fawsett and Sir Leo Arthur Hielscher. d) Queensland Government Cabinet documents from the relevant period. E) Affidavits of Bernadette Irene Albert, Evelyn May Barker, Shane Arthur O'Connor, Eric Michael Porter, Maxwell Athol Smith and Paul Toolis. It is clear that obtaining evidence from Mr Hockey would be very important to the conduct of this case from the perspective of both the applicants and the respondents. Mr Hockey was appointed Acting Superintendent of the Doomadgee Aboriginal Mission Reserve from 1 November 1958. I understand he remained in that management position until some time in 1983, and that he eventually left Doomadgee on 6 April 1983. His management role means that he would be able to give key evidence as to the role of the respondent in the conduct of the Doomadgee Mission over that period, and to explain relevant documents and records from that period. The importance of that evidence is enhanced by the fact that a number of key witnesses involved in the management of Doomadgee mission, and liaison between the Doomadgee Mission and the respondent during the relevant period have died (for example, Mrs Hockey and Mr Bedford), or are elderly, frail and unable to give evidence (for example, Mr Killoran). It is clear however that Mr Hockey himself is now elderly, and in frail health. At the hearing on 14 July 2006 the ability of Mr Allan Hockey to give evidence at a hearing of the substantive matter was in dispute. Counsel for the applicants indicated that he had spoken with a third party who had been in contact with acquaintances of Mr Hockey, and was able to provide evidence that Mr Hockey was capable of giving evidence relevant to the issues in dispute. I indicated that, if this were the case, the best evidence would be that from Mr Hockey himself. I adjourned the hearing to allow the parties the opportunity to contact Mr Hockey and ascertain his ability to give evidence, whether at the hearing itself, by a preservation of evidence hearing, by affidavit or otherwise.