Case: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509
Outcome: cited
Council then submitted that in seeking an order that will not remove oppression the plaintiff had commenced and continued the proceeding as a means of obtaining some advantage for which the proceeding was not designed or some collateral advantage beyond what the law offered: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 526 7. The Council contended that the plaintiff's true purpose in bringing the proceeding was to obtain findings from the court for potential distribution to members of the Council. The Council relied on the following passages in Mr Szental's cross-examination: "But isn't your position in this litigation that you want the court to order an independent report to be provided to the members and then you want the members in some fashion to consider that report?---I think an independent report from the court or the court findings would carry different weight to the proposition that you've been putting, which is basically that I am a sole dissenting member of the board, and I think that it would carry an independence and a weight that possibly I could never muster. It would also - - - Though really it is sorry?---And it would make findings that there are actual deficiencies. So really is the object of this exercise to get court findings rather than an independent report? ---The object of this exercise is to bring to the attention of the members that the management of the industry association up till now has been far from adequate and not in their best interests. I mean I have nothing to gain out of this other than to try and improve the benefits. I led three-quarters of the members through the BCSE into this merger and I have an obligation to them and I'm trying to fulfil that obligation by trying to inform them that what they signed on for isn't what they got." I do not accept the Council's submission. The plaintiff has brought the proceeding in order to have the manner of the conduct of the Council's affairs changed. It seeks to achieve this result by seeking certain relief a report by an independent accountant to the members of the Council in relation to particular aspects of the conduct of the Council's affairs. For reasons to which I shall refer, I do not consider that that form of relief is appropriate in the circumstances of this case or that it will achieve a result of the type contemplated by ss 232 and 233. But that conclusion does not mean the plaintiff has been motivated by an improper purpose in commencing the proceeding. Its purpose in bringing the proceeding is to end a course of conduct. Accepting Mr Szental's evidence that the plaintiff commenced the proceeding to obtain findings by the Court which it could distribute to members does not mean an abuse of process. Rather, it means that the means by which the plaintiff is seeking to achieve its purpose is misguided and inappropriate. The discretion committed to the Court by s 233 is very wide and unconstrained. In an appropriate case, a particular type of conduct of the affairs of a company might be eliminated or terminated by directing a particular person to report on particular aspects of the conduct of a company's affairs to its members or by a Court making particular findings as to the manner in which the company's affairs have been conducted.