Case: Jago v District Court (NSW) [1989] HCA 46 ; (1989) 168 CLR 23
Outcome: cited
nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise namely that the power is, in essence, a power to refuse to exercise jurisdiction. The power is to be viewed in light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised (Gaudron J in Jago v District Court (NSW) [1989] HCA 46 ; (1989) 168 CLR 23 at 76). This principle was itself elaborated by Deane J in re Queensland Electricity Commission; ex parte Electrical Trades Union of Australia [1987] HCA 27 ; (1987) 72 ALR 1 at 12 as: 'the prima facie right to insist upon the exercise of jurisdiction (as) a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is 'amendable to the jurisdiction' of the courts and other public tribunals.' [cf Gaudron J in Jago at 76] It is clear that superior courts of justice, including the Federal Court of Australia, have the power to control and supervise proceedings brought within their jurisdiction, including the power to stay proceedings which are an abuse of process (cf Jago v District Court (NSW) [1989] HCA 46 ; (1989) 168 CLR 23 per Mason CJ at 25, 28, Deane J at 58, Gaudron J at 74, 76; Williams v Spautz [1992] HCA 34 ; (1991-1992) 174 CLR 509 at 518 per Mason CJ, Dawson, Toohey and McHugh JJ; Walton v Gardiner [1992] HCA 12 ; (1992-1993) 177 CLR 378 at 393; Lord Diplock in Hunter v Chief Constable of the West Midlands Police (1982) AC 529 at 536; Miller v University of New South Wales [2003] FCAFC 180 at [77-81] ; and note the consideration of this issue by the majority of the High Court in Batistatos v Road Traffic Authority of New South Wales [2006] HCA 27 at [5-8] and by Kirby J at [121-128]). Applications for permanent stay based on effluxion of time appear to be rare (note comments of Bryson JA in Newcastle City Council v Batistatos [2005] NSWCA 20 at 56). The issue has however been the subject of comment by the High Court of Australia in the context of criminal proceedings ( Jago ), in relation to tribunal deliberations ( Walton v Gardiner ), and recently in relation to civil proceedings ( Batistatos ). In 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]