It is otherwise when the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed [ In re Majory [1955] Ch 600 at pp 623-624] or some collateral advantage beyond what the law offers [ Goldsmith v Sperrings Ltd [1977] 1 WLR at pp498-499; [1977] 2 All ER at pp581-582; see also Varawa (1911) 13 CLR at p91]. So, in Dowling [(1915) 20 CLR at p524], Isaacs J pointed out that "if, for instance, it had been shown that the Society had simply threatened Dowling that unless he did what they had no right to demand from him, namely, give up certain names, they would proceed to sequestration, and they had proceeded accordingly, there would have been in law an abuse of the process". However, because the Society wished to use the process for the very purpose for which it was designed, there was no abuse of process.
9 This passage contemplates that proceedings may be "designed" to produce results ("advantages" from the plaintiff's viewpoint) beyond the simple attainment of the relief sought in the writ or implicit in the criminal charge, without necessarily involving an improper purpose.
10 The prosecuted alderman is an example of this phenomenon. Another example is given elsewhere in the principal judgment: their Honours held (at 516-7, 529-30) that vindication of reputation may be a proper purpose of a prosecution for criminal defamation even though the conviction and punishment of the defendant is the only expressly avowed end.
11 Similarly, the action for trespass has often been used as the legitimate vehicle for determining fundamental constitutional principles (cf Egan v Willis (1996) 40 NSWLR 650 at 653). Such proceedings would not be an abuse of process merely because the plaintiff would not have brought them if only concerned to obtain the nominal monetary or purely declaratory relief claimed in the writ.
12 In Williams, Brennan J held (at 535) that:
There is no impropriety of purpose (whatever may be said of motive) when a plaintiff commences or maintains a proceeding desiring to obtain a result within the scope of the remedy, even though the plaintiff has an ulterior purpose - or motive - which will be fulfilled in consequence of obtaining the legal remedy which the proceeding is intended to produce.
13 After reviewing several cases, his Honour concluded (at 537, my emphasis):
For these reasons, I would hold that an abuse of process occurs when the only substantial intention of a plaintiff is to obtain an advantage or other benefit, to impose a burden or to create a situation that is not reasonably related to a verdict that might be returned or an order that might be made in the proceeding.
14 In the Court of Appeal, in Spautz v Gibbs (1990) 21 NSWLR 230, Mahoney JA (dissenting) described Dr Spautz's improper motive in the following terms (at 233, my emphasis):
In the present proceedings brought by Dr Spautz, the position is that if they are successful, they will produce only orders that the relevant person be fined or imprisoned. Dr Spautz' purpose or intention was not to produce that, as such. It was to produce that result (or to create the possibility of it being produced) so that, as he would hope, the person sued would be led to influence the University to give him what he believes he should have. Therefore his object is not to obtain the relief which the law gives for the breaches or causes of action which he claims to have. It is to obtain that relief only so that another result will flow from it or, as I think the position is, from the threat of it.
15 These passages offer possibly different formulations of the issue presently to be determined. Is the State's purpose in prosecuting the cross claim shown to the requisite standard to be:
• the use of proceedings as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers?
• not reasonably related to the verdict that might be obtained against the claimants?
• only so that another result will flow, ie indemnification by a party not legally obliged to indemnity?
16 It is for the claimants to establish an abuse of process against themselves. Mere pressure on a third party to act in a way that is lawful cannot be enough, even if (ex hypothesi) the pressure is intended.
17 Let it be assumed that the State is pursuing the claimants with the intention of creating a situation where a crippling judgment against the claimants is the intended spur to induce LLC to give up a position which it would almost certainly be entitled to adopt in light of the law post-Salomon's Case [1897] AC 22 (see generally Briggs v James Hardie & Co Pty Ltd (1989) 16 NSWLR 549; Adams v Cape Industries plc [1991] 1 All ER 929 at 1019; James Hardie & Co Pty Ltd v Hall (1998) 43 NSWLR 554 at 583-4). There is no suggestion that LLC was on notice of circumstances likely to generate the claims in the proceedings when its subsidiary was placed into voluntary liquidation.
18 There are still points of distinction between the present case and Williams. In Williams, the purpose was to obtain some advantage for which the criminal proceedings against the individuals were not designed, namely favourable intervention by the University. Absent that purpose, the proceedings would not have been brought (hence the finding of predominant improper purpose). In the present case (ex hypothesi), the purpose is to obtain a monetary award against the claimants and then to stare down LLC, the ultimate holding company that profited by their labours in its corporate enterprise, to see if it is prepared to risk the general opprobrium or industrial backlash that might ensue from leaving its former subsidiary's employees in the lurch. But, unlike Williams, the pressure comes after and in consequence of the award which the law permits, ie the verdict against the claimants personally. In that sense, the State is using the legal process available to it, in the sense discussed by Isaacs J in the passage in Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509 at 521-22 that was cited with approval in the judgments of Williams. In Dowling, the creditor petitioned for sequestration in order to ascertain on an examination of the debtor after sequestration the identity of persons who had instigated the debtor to publish defamatory matter of the creditor. This was held not to involve an abuse of process.
19 The word "only" that I have emphasised in the passages quoted from Brennan J and Mahoney JA makes a similar point.
20 It seems to me that the present case, thus analysed, is analogous to the example of the prosecuted alderman given by the majority in Williams. In that example the ultimate purpose of the prosecutor was to bring about his or her political opponent's vacating of office, but the immediate purpose (and means) was to secure the conviction. It was sufficient that the latter purpose was within the scope of the legal process: no abuse of process was involved.
21 The alderman's disqualification from office was the automatic consequence of conviction, whereas the situation in Dowling involved a remedy available at the option of the creditor. But in either case there was a legal entitlement to the step that followed the conviction/sequestration order. By contrast, the consequence sought putatively by the State is at most a matter of moral obligation. Does this matter? I think not. Both categories fall within the scope of the following principle, stated by Brennan J in Williams (at 534):
These cases show that a plaintiff's intention to achieve a result must be distinguished from his motive for commencing or maintaining a proceeding, though the distinction may be elusive. In Bayne v Baillieu [(1908) 6 CLR 382 at p403], O'Connor J cited with approval a statement by Holroyd J in a Victorian case [ In re Morrissey (1899) 24 VLR 776 at p778]:
I think that if the object of an act is legal, and there is no wrongful intention in it, but the intention is to do something also legal, founded upon that act - it is perfectly immaterial what the ulterior motive of the party may be - what it may be that prompts him to do the legal act.
22 Here the State intends to do something legal "founded upon" the act of securing judgment against the claimants.
23 In reaching the conclusion that there is no abuse of process I recognise the importance of freedom of access to the courts and I do not discern that refusal of the stay would lead to an erosion of public confidence in the courts (see Williams at 519-20). Salomon may indicate LLC's legal entitlement to benefit from the endeavours of its subsidiary's employees without standing behind them in their time of need, but it goes no further than that. There is nothing unlawful in anyone asking LLC to indemnify the claimants if and when judgment is obtained against them.
24 I agree with Hodgson JA on the Evidence Act issues, subject to the following. As to the meaning of "a power" in the phrase "in a furtherance of a deliberate abuse of a power" in ss125(1)(b) and 131(2)(k) of the Evidence Act 1995, I prefer the view of Santow JA. Here the relevant power is not the pure creature of the common law, because the proceeding in question is a cross-claim which, as a procedural right, is sourced in s78 of the Supreme Court Act 1970. To my mind this is a specific enough power to fall within the letter and spirit of the paragraphs in question. No basis for reading down is established.
25 I agree with the orders proposed by Hodgson JA.
26 HODGSON JA: These applications for leave to appeal arise out of eight proceedings in which various plaintiffs sue for damages of many millions of dollars in respect of losses caused by a landslide at Thredbo on 30 July 1997. In each of these cases, the State of New South Wales and the Roads & Traffic Authority of New South Wales are defendants, and in some of them The Minister Administering the National Parks & Wildlife Act 1974 is also a defendant. In each of these cases, these defendants (which I will call the State interests) have put on a cross-claim against Lend Lease Corporation Limited (LLC), Lend Lease Residential Pty. Limited (LLR) and five individuals, seeking damages and/or indemnity and/or contribution. The five individuals were former officers and employees of a company which then had the name Kosciusko Thredbo Pty. Limited and which was de-registered in about 1993 (KT1). KT1 was ultimately owned by LLC.
27 In all proceedings, the five individual defendants (the claimants before this Court) applied by Notice of Motion for orders that the cross-claims against them by the State interests be stayed or dismissed. On 5 April 2002, Adams J dismissed those Notices of Motion with costs. The claimants apply for leave to appeal against that decision.