109 His Honour was correct in observing that the practitioner had been unable to identify "from his firm's index of archived files any file that may have contained material relevant to the quarry matter", but with respect, the question was far wider. The index relevant to portion of the period was no longer in existence. The evidence established that notes and documentation were not always placed on a particular file. It had not been established that all files retained after 1992 remained in existence. The practitioner could do no more than claim general prejudice since it was impossible to claim that "file note X" had been placed on "file Y". The multiplicity of dealings between Adams and Spaulding over many years made identification of a specific item impossible.

110 The varying formulations of the complaints concerning the "quarry property" and "Lot 7" with subsidiary concerns, made documentation essential ingredients in any fair resolution of the proceedings.

111 But a more fundamental problem remained despite the findings made by the learned primary judge. The particulars of misconduct contained the allegation of detriment. It is one thing to conclude that a lawyer acting for a friend is unwise unless separate advice is obtained. It is another to suggest that the other "suffered loss" or that the lawyer obtained personal benefit. These two issues formed the core of Spaulding's complaint. In order to meet the fundamental claim by Spaulding, it would be necessary to reconstruct the history of dealings and identify the stage at which Spaulding's financial affairs deteriorated. The claim that he was obliged to purchase Lot 7 when he was financially insecure is serious. The sale to Knight raises a similar question. Whether the terms of purchase for the quarry property were unfair and caused economic loss to the advantage of Adams goes to the heart of a claim of unprofessional conduct.

112 The mechanics of the transactions were not in dispute. Adams did act for Spaulding, was the owner of Lot 7 and had an interest in the "quarry property". He did not suggest the taking of independent advice. There was little, if any, need for documentation on those matters. It was the financial ramifications and timing of the transactions which were central to the nature of the "professional misconduct". The dealings in relation to the "quarry property" involved others and records of their consultation and involvement might have served to place the transaction in a different context.

113 The claims stated in the affidavit sworn 7 September 2001 of "difficulty in borrowing" (par10(a)), "rights and interests" (par10(b) and (c)), "imprecision of boundaries" (par10(d)), and "stratum title" (par10(c)), might be met with material located on a general file referable to the other owners of Gunner's Quoin which might have revealed notes of discussions and comment.

114 There is a secondary, but no less important, basis for not confining the issue of delay and the lost files to the precise documentation relating to the identified transactions. Spaulding had made many and varied complaints concerning dealings between 1984 and 1990. There was a strong likelihood that many of these matters would be raised during the course of these proceedings, either as matters going to credit, explanatory of a fact in issue or showing a course of conduct indicative of abuse of a professional relationship for personal gain. Those matters are raised or their potential alluded to in Spaulding's affidavit filed in support of the application. The following extracts from that affidavit illustrate the potential:

"14 At the time of this [Lot 7] proposed purchase there existed a close relationship between myself and the practitioner. He was aware of the difficult financial situation that I was in.

15 I was in a precarious financial position at the time of my purchase of the land from the practitioner. I eventually had no choice but to sell my interest in the land [Lot 7]. I indicated this to the practitioner and he arranged for me to sell it to his friend Mr Stephen Knight, a solicitor at Messrs Dobson Mitchell & Allport. My interest in the land [Lot 7] was originally purchased for $45,000.00 and I agreed to sell it to Mr Knight for $47,500.00.

19 Because of my desperate need for funds I agreed to discount the final instalment of the purchase price from Mr Knight in return for earlier payment of that instalment. I subsequently learned that the practitioner confirmed on my behalf to the solicitors for Mr Knight that the subsequently discounted outstanding amount of purchase price for that sale was made in full satisfaction of Mr Knight's liability under the sale contract.

20 As well as that loss suffered by me because of my desperate need for funds at that time I also suffered in other ways financially because of the purchase of the interest in the land from the practitioner.

21 The purchase of the interest in the land from the practitioner by me and my wife was something that we could not cope with financially because of our other financial commitments. As a consequence, before we went ahead with the purchase of the interest in the land we had no alternative but to sell my fishing vessel the 'Valda S' together with a 40 pot crayfish entitlement. We sold this for the sum of $150,000.00. We had owned the boat for 6 years and did not intend to sell it but for the purchase of the interest in the land. The price that we received for the vessel and the crayfish entitlement was a reasonable one in all of the circumstances but the sale of these items lost to us a valuable means of annual income.

29 The agreement on price of the gravel to be supplied by me from the quarry to the practitioner and any other members of the syndicate previously referred to was reached between me and the practitioner and at the practitioner's insistence it had to be at cost. I received $2.00 a metre for cartage and $2.00 a metre for extraction and loading. These figures were in fact below cost incurred by me.

31 Because of the practitioner's previous dealings with me he was aware that I was a commercial fisherman and he was also aware that I had no experience in quarries or earth moving. I first met the practitioner approximately 12 months before entering into the quarry transaction."

115 The finding of the learned primary judge that the absence of files had not been claimed to give rise to specific prejudice was not warranted by the evidence and, with respect, constitutes specific error. The finding that Adams was unable to identify relevant files from an index was correct, but did not take into account that no index existed for portion of the relevant time. The conclusion that their absence did not establish unfairness is, upon detailed analysis, not in accordance with the evidence.

116 The conclusion that ground 2 is made out does not necessarily give rise to the upholding of ground 3. However, it is sufficient to permit the setting aside of the order dismissing the interlocutory application.

117 It is appropriate for this Court to consider the application afresh rather than order a rehearing. I would confine my consideration to the claim that the combination of delay and the absence of documentation or, at least, the inability to properly search for such documentation, renders the continuation of these proceedings oppressive. The general term "abuse of process" describes an inherent jurisdiction of a superior court in a variety of circumstances. The categories have been identified by the High Court in Walton v Gardiner (1993) 177 CLR 378, a case involving disciplinary proceedings conducted by a tribunal constituted under the Medical Practitioners Act, 1938 (NSW). In their joint judgment, Mason CJ, Deane and Dawson JJ defined the concept and its application in broad terms, stated at 392 - 393:

"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 (See, eg, Metropolitan Bank v Pooley (1885) 10 App Cas 210, at pp 220-221; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 115, at pp 128-130). 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 (See, generally, Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538). 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 (See, eg, Reichel v Magrath (1889) 14 App Cas 665, at p 668; Connelly v DPP [1964] AC 1254, at pp 1361-1362). 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 Police ([1982] AC 529, at p 536) 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'."

118 It is not necessary, for the purpose of this appeal, to consider whether a narrower view preferred by some members of the court in Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, ought apply here (see also Carson v Legal Services Commissioner & Anor [2000] NSWCA 308). In Re a Medical Practitioner [1993] TASSC 138; (1993) 2 Tas R 90, Green CJ applied Walton, although on the facts of the case concluded that the efluxion of some 20 years simpliciter did not warrant a remedy of stay which, in his view, ought "only be made in exceptional circumstances".

119 The time elapsed between the matter of complaint and the commencement of proceedings, some 18 years, might not, of itself, constitute a basis for stay. The delay in making the first complaint until 1992 and the second in 1999 might create unfairness which could be met with allowance made for the absence of accurate recall or scant documentation. But the interconnection of voluminous complaints, their complexity and repetition, even when distilled into two identified events, remove these proceedings from those consisting of a discrete and readily identified event (New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177) or a consistent course of general conduct clearly shown (Law Society of New South Wales v Moulton [1981] 2 NSWLR 736). Even at this stage of proceedings it remains difficult to discern the precise nature of the grievance, except by reference to the other matters said to have caused bankruptcy and the collapse of corporate entities. While professional misconduct need not involve economic loss (Moulton), it is difficult to discern the basis for complaint other than a general statement of financial hardship due to other matters. Adams did sell land to Spaulding, but did so at a price less than valuation. He had referred the client to an independent valuer whose report disclosed the status of the land, the form of title and the proposed boundaries. The sale to Knight was for a higher price and any economic detriment was a consequence, not of the absence of independent legal advice, but of a need to hasten the payment of instalment money. That is not to conclude that the test of improbability of outcome as stated in Walton applies here. It may be that a determination on the merits would result in a finding that, according to acceptable standards applicable in 1984 - 1985, the failure to suggest independent legal advice alone would constitute unprofessional conduct. But a finding of economic detriment or advantage might warrant a sanction of suspension or removal.

120 The complaints have been comprehensively examined by independent counsel. The appellant has been formally advised on two occasions that the complaints had been dismissed and the matter closed. Spaulding has requested that the matter no longer be pursued by the Society and sought referral to a different authority. These proceedings were commenced after continued representations, involvement by the Attorney-General and the Legal Ombudsman and an apparent visit by police officers. Files had been produced and kept, either by the Society or referred to retained counsel. That in itself does not constitute a basis of previous disposition as stated in Walton.

121 However, the course of the proceedings resulted in the loss or destruction of files kept by Adams and Page Seager which inhibited his capacity to meet the allegations, especially the components of economic detriment and advantage. Disavowal of a claim for compensation does not negate that claimed characterisation of the professional misconduct. The Society has chosen not to deal with the complaint in accordance with the Legal Profession Act 1993, Div1A.

122 The combination of the above renders continuation of these proceedings "unfair to a party to litigation" in the sense stated in Walton and by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529. In that sense it can be regarded as oppressive and thus constitute an abuse of process.

123 I would uphold the appeal in relation to ground 2 and set aside the order dismissing the application for stay. I would substitute in lieu an order granting the interlocutory application filed on 8 October 2001.