Case: Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378
Outcome: followed
The leading High Court authority in respect of abuse of process is the decision in Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378. In that decision Mason CJ, Deane and Dawson JJ said at 392-3: 'Gleeson CJ and Kirby P considered that the Court of Appeal has power to make an order staying proceedings if it is satisfied that the continuation of the proceedings would be "so unfairly and unjustifiably oppressive" as to constitute an abuse of process. Their Honours made plain that the court would only be so satisfied in an exceptional or extreme case. Mahoney JA adopted a similar approach, while formulating the appropriate test in slightly different words. His Honour considered that the question for the Court of Appeal was whether, in all the circumstances, the continuation of the proceedings before the Tribunal would involve unacceptable injustice or unfairness. In our view, the approach adopted by the members of the Court of Appeal was correct. The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness ... proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.' 24 The first respondent, however, says that Raphael FM relied upon Walton v Gardiner rather than Applicants S503 . I disagree with the first respondent that Walton v Gardiner indicates that a case should be dismissed as an abuse of process where proceedings of the same nature have previously been discontinued, even where no determination on the merits has taken place. I would respectfully adopt the reasoning of Edmonds J in respect of this matter. It appears to me that the words ' disposed of ' in the passage from Walton v Gardiner cited above are intended, in all the circumstances, to mean ' dismissed '. I do not consider they necessarily decide the question in respect of cases where a notice of discontinuance is filed before a merits hearing has taken place. 27 I do not consider that every time an application is discontinued before a hearing has taken place and proceedings of the same nature are subsequently instituted, it must necessarily follow that the re-instituted proceedings are an abuse of process. The question whether an abuse of process has occurred is a matter of discretion, and it is a discretion which, in my opinion, should be cautiously exercised in circumstances where no issue estoppel arises. Whilst the High Court indicated in Walton v Gardiner that proceedings may be stayed as an abuse of process even where there is no issue estoppel if their continuance would be ' unjustifiably vexatious and oppressive ', the Court also made it clear that this should only occur in an extreme or exceptional case. 28 In my opinion, upon a plain reading of the reasons of Raphael FM, his Honour did not exercise a discretion at all. The passage from his Honour's reasons, reproduced at [14] above, suggests that his Honour considered that the law required the strike out of the application simply because a second application had been filed. I consider this proposition is incorrect. The authority relied upon by his Honour ( Applicant S503 ) was clearly distinguishable from the present case and, furthermore, an allegation of abuse of process must be considered specifically upon the facts of the particular case. His Honour may have been entitled to strike out the application after considering all of the circumstances, but it was not a foregone conclusion that the application was an abuse of process. In view of the observations of the High Court that the power should be used only in exceptional and extreme cases, I would have doubts about the appropriateness of dismissing the application at all. 29 Accordingly, in my opinion, the exercise of his Honour's discretion was affected by an error of principle.