The decision of her Honour Margaret Wilson J in Frikton v Plastiras [2010] QSC 5 helpfully summarises the principles regarding abuse of process:

 [35]

Mr Frikton asserted that he never agreed to be bound in this proceeding by the

findings of Muir J in the other proceeding. He submitted that there were many

errors made by his Honour, and that he should not be prevented from re-litigating

issues his Honour determined against him.

[36]

Those submissions must be viewed in light of the submission made by his counsel

on 7 February 2007 that there were issues common to the two proceedings and that

both parties ought to be bound by findings made in BS 3205/05. And they need to

be viewed in light of the Court of Appeal’s having dismissed his appeal against

Muir J’s decision and the High Court’s having refused him leave to appeal further.

[37]

The Court has inherent power to prevent an abuse of process. In Rogers v The

Queen1 Mason CJ said –

“The concept of abuse of process is not confined to cases in which the purpose

of the moving party is to achieve some foreign or ulterior object, in that it is

not that party’s genuine purpose to obtain the relief sought in the second

proceedings. The circumstances in which abuse of process may arise are

extremely varied and it would be unwise to limit those circumstances to fixed

categories.2 Likewise, it would be a mistake to treat the discussion in

judgments of particular circumstances as necessarily confining the concept of

abuse of process.”

And in Walton v Gardiner3 Mason CJ, Deane and Dawson JJ said –

“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. Thus, it has long been established that, regardless of

the propriety of the purpose of the person responsible for their institution

and maintenance, proceedings will constitute an abuse of process if they

can be clearly seen to be foredoomed to fail.4 Again, proceedings within

the jurisdiction of a court will be unjustifiably oppressive and vexatious of

an objecting defendant, and will constitute an abuse of process, if that court

is, in all the circumstances of the particular case, a clearly inappropriate

forum to entertain them.5 Yet again, 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.6 The

jurisdiction of a superior court in such a case was correctly described by

Lord Diplock in Hunter v Chief Constable of the West Midlands Police7 as

‘the inherent power which any court of justice must possess to prevent

misuse of its procedure in a way which, although not inconsistent with the

literal application of its procedural rules, would nevertheless be manifestly

unfair to a party to litigation before it, or would otherwise bring the

administration of justice into disrepute among right-thinking people’.”

[38]

It may be an abuse of process to allow a party to relitigate an issue decided between

him and a third party if the subsequent proceeding was initiated to mount a

collateral attack on a final decision against him made by another court of competent

jurisdiction in which he had a full opportunity of contesting the decision.8 The

Court’s powers to prevent an abuse of process are to be exercised sparingly and

with great caution.9 As Giles CJ explained in Stenhouse,10 whether there is an abuse

of process depends very much on the circumstances –

“The guiding considerations are oppression and unfairness to the other party to

the litigation and concern for the integrity of the system of administration of

justice, and amongst the matters to which regard may be had are –

(a) the importance of the issue in and to the earlier proceedings,

including whether it is an evidentiary issue or an ultimate issue;

(b) the opportunity available and taken to fully litigate the issue;

(c) the terms and finality of the finding as to the issue;

(d) the identity between the relevant issues in the two proceedings;

(e) any plea of fresh evidence, including the nature and significance of

the evidence and the reason why it was not part of the earlier

proceedings; all part of –

(f) the extent of the oppression and unfairness to the other party if the

issue is re-litigated and the impact of the re-litigation upon the

principle of finality of judicial determination and public confidence in

the administration of justice; and

(g) an overall balancing of justice to the alleged abuser against the

matters supportive of abuse of process.”

1 (1994) 181 CLR 251 at 255.

2 Hunter v The Chief Constable of the West Midlands Police [1982] AC 529 at 536 per Lord Diplock.

3 (1992-1993) 177 CLR 378 at 392-393.

4 See, e.g., Metropolitan Bank v. Pooley (1885) 10 App Cas 210 at pp 220-221; General Steel

Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 CLR 125 at pp 128-130.).

5 See, generally, Voth v. Manildra Flour Mills Pty. Ltd. (1990) 171 CLR 538.

6 See, e.g., Reichel v. Magrath, (1889 14 App Cas 665 at p 668; Connelly v. DPP [1964] AC 1254 at

pp 1361-1362.).

7 [1982] AC 529, at p 536

8 Hunter v The Chief Constable of the West Midlands Police [1982] AC 529 at 541; State Bank of New

South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423; Reichel v Magrath (1889) 14

App Cas 665.

9 Clout v Klein [2001] QSC 401 at para 54; Spalla v St George Motor Finance Limited (No 6) [2004]

FCA 1699 at para 70.

10 State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 at 64, 89.

Brisbane Barrister – David Cormack

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