Case: O'Brien v Wily (2009) 74 ACSR 145
Outcome: referred to
examination directed at testing a liquidator's preliminary view that claims in current litigation have good prospects of success in not an objectionable purpose (per Barrett J in O'Brien v Wily (2009) 74 ACSR 145 ('Wily') at [37]-[38]). Where the predominant purpose of a liquidator in conducting examinations is to put himself into a position from which he can make a final decision whether or not to pursue litigation is permissible (see per Barrett J in Wily at [45]). The approach taken by Courts to prevent abuses of process in inter-partes litigation may not necessarily apply in all circumstances to summons issued pursuant to the investigative powers conferred upon, amongst others, a liquidator, as an eligible applicant in relation to a corporation's examinable affairs. However, what has been said in relation to abuse of process in the context of inter-partes litigation will, of necessity, be relevant to determining questions of abuse of process in respect of the issue and use of examination summons. In Jeffery &amp; Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 260 ALR 34 at [27]-[29] French CJ, Gummow, Hayne and Crennan JJ said in respect of the prevention of abuses of process: '[27] An early statement of the power of any court to prevent abuse of its processes is found in an 1841 case, Cocker v Tempest : The power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of injustice. That statement foreshadowed the contemporary approach in the United Kingdom and Australia which takes no narrow view of what can constitute "abuse of process". Nevertheless, certain categories of conduct attracting the intervention of the courts emerged in the 19th and 20th centuries and included: (a) proceedings which involve a deception on the court, or are fictitious or constitute a mere sham; (b) proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way; (c) proceedings which are manifestly groundless or without foundation or which serve no useful purpose; (d) multiple or successive proceedings which cause or are likely to cause improper vexation or oppression. [28] The term "abuse of process", as used in Australia today, is not limited by the categories mentioned above or those which constitute the tort. It has been said repeatedly in the judgments of this court that the categories of abuse of process are not closed. In Walton the majority adopted the observation in Hunter that courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of court, would nevertheless be "manifestly unfair to a party to litigation ... or would otherwise bring the administration of justice into disrepute among right-thinking people". This does not mean that abuse of process is a term at large or without meaning. Nor does it mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process if it can be characterised as in some sense unfair to a party. It is clear, however, that abuse of process extends to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" or "productive of serious and unjustified trouble and harassment". [29] In Campbells , Gummow, Hayne and Crennan JJ (with whom Gleeson CJ agreed in this respect) declined to formulate an overarching rule of public policy that would, in effect, bar the prosecution of an action involving an agreement to provide money to a party to institute or prosecute the litigation in return for a share of the proceeds of the litigation. Nor would they accept that there should be a rule which would bar the prosecution of some actions according to whether the agreement met some standards relating to the degree of control or the amount of the reward the funder might receive under the agreement. It was not shown that apprehensions that the funder might improperly interfere with the conduct of the proceedings could not sufficiently be addressed by "existing doctrines of abuse of process and other procedural and substantive elements of the court's processes".' (footnotes omitted) In Wily Barrett J at [42] opined that it was a clearly impermissible purpose for a liquidator to conduct a dress rehearsal for cross-examination or to seek to assemble material in order to attack a potential witness's credit. No such impermissible purpose is apparent in the circumstances of this case. Furthermore, one must not overlook Street J's observation in Re Hugh J Roberts Pty Ltd that testing the reliability of an examinee from who information is being obtained can be a legitimate use of the examination power. Background facts