Attorney-General in and for the State of New South Wales v Spautz

together with consequential orders, including an amendment to proceedings to claim abuse of process, malfeasance in public office, breach of statutory duty and breach of common law duty against the Attorney-General. 10 The judgment in respect of which Notice of Motion 2 seeks relief was given on 18 February 2000 following a hearing before Brownie AJ on 9 February 2000 of a Notice of Motion dated 16 November, 1998. 11 The third Notice of Motion (Notice of Motion 3) was filed by the Attorney-General on 3 May, 2000, seeking to have Notice of Motion 2, filed by Dr Spautz on 17 March, 2000, struck out. The grounds of this are essentially that Notice of Motion 2 is misconceived, that the assertion of bias made against Brownie AJ is nothing more than "an afterthought" and that the effect of granting the leave sought in Notice of Motion 2 would be to allow Dr Spautz to re-visit the situation that pertained over a decade ago when McInerney J made an order against Dr Spautz under s.84(1) of the Supreme Court Act, 1970. A further ground was that it was submitted that no error of law in the judgment of Brownie AJ was identified by Dr Spautz.

BACKGROUND 12 In 1973 Dr Spautz was appointed as a senior lecturer in the Department of Commerce, Faculty of Economics and Commerce of the University of Newcastle (the University). Between August, 1973 and mid-1976 the University advertised on three occasions for an appointee to fill the Chair of Commerce. Being anxious to obtain the Chair Dr Spautz applied for it on two occasions, unsuccessfully. In mid-1976 Dr A J Williams was appointed to the Chair and took up his duties in mid-January 1977. Shortly after this appointment, disputes broke out between Dr Spautz and Professor Williams, Dr Spautz alleging, inter alia, plagiarism on the part of Professor Williams. Details of the disputes are set out in detail in the judgment of Rolfe J of 18 April, 1991which, together with a number of other judgments, was tendered to the court. It is unnecessary to traverse the details of the disputes. Suffice it to say that they continued and became increasingly disruptive in relation to the running of the Department of Commerce and beyond. The disputes led to a number of actions on the part of Dr Spautz which in turn led to the Council of the University passing a resolution on 20 May, 1980 the effect of which was to dismiss Dr Spautz from the University as from 23 May, 1980. 13 Dr Spautz challenged the validity of the resolution on a number of grounds, including lack of bona fides and bias on the part of those who had taken part in its passing. The challenge to the resolution was initially dealt with in two parts. The first was concerned with the validity of the resolution. This issue was heard and determined as a separate question by Rath J who decided it adversely to Dr Spautz. There was then a number of interlocutory applications between Dr Spautz and the University, but finally the remaining issues for determination in respect of Dr Spautz's claim for wrongful dismissal were heard by Rolfe J on 11 March, 1991. In his judgment of 18 April, 1991 Rolfe J held that the decision of the University to dismiss Dr Spautz from its academic staff was lawful and he further stated that he was: "not in any way satisfied that there was actual or presumed bias on the part of the members of the Council"

of the University. He thereupon dismissed Dr Spautz's claim for wrongful dismissal but, in deference to the submissions by counsel for Dr Spautz, assessed the damages at a maximum of $24,758.14. 14 Dr Spautz appealed from the decisions of Rath J and Rolfe J. His appeal was dismissed by the Court of Appeal on 5 May, 1994. From this decision Dr Spautz sought special leave to appeal to the High Court. This was refused on 18 November, 1994, putting an end to any claim by Dr Spautz that his dismissal by the University was invalid, unlawful or otherwise ineffective. The decision of the High Court confirmed beyond further argument in the legal system in Australia that Dr Spautz had ceased to be an employee of the University on 23 May, 1980. 15 Between the date of his dismissal and the dates of filing of the Notices of Motion presently before the court, Dr Spautz engaged in a veritable welter of litigation. He privately prosecuted various members of the Council of the University and others for various alleged criminal conspiracies as well as criminal and civil defamations and attempting to pervert the course of justice. He failed in each of such actions as did his appellate process. He sued various public officials. In this respect he had some success, obtaining damages of $75,000 for false imprisonment. However, his forays into the court system were otherwise generally unsuccessful. Many of the proceedings that had been instituted by him were stayed, others struck out. Orders were made by various judges of this Court under s.84(2) of the Supreme Court Act, 1970 in favour of a substantial number of persons against whom Dr Spautz had commenced proceedings. Finally, in 1989, the Attorney-General sought orders against Dr Spautz under s.84(1) of the Supreme Court Act, 1970. By the time such orders were sought by the Attorney-General, Dr Spautz had commenced 24 actions, suits, applications, prosecutions and appeals in or to the Supreme Court, District Court and various other courts. By the time the matters came before the High Court Dr Spautz had increased this tally to nearly 40. At the time of hearing of the present motions that tally was approaching 50, when the motions before the court are included. The cost of these proceedings has been great; to the University in excess of $12 million, with other substantial costs for others. As Dr Spautz is unemployed ("on the dole" as he says) there is no prospect of costs being recouped by those in whose favour orders have been made.

RELEVANT STATUTORY PROVISION AND ORDER 16 Section 84 of the Supreme Court Act, 1970 provides as follows: "[ s 84] Vexatious Litigant 84(1) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings, whether in the Court or in any inferior court, and whether against the same person or against different persons, the Court may, on application by the Attorney General, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings in any court and that any legal proceedings instituted by the vexatious litigant in any court before the making of the order shall not be continued by the vexatious litigant without leave of the Court. (2) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without any reasonable ground institutes vexatious legal proceedings against any person (in this subsection called the person aggrieved) whether in the Court or in any inferior court, the Court may, on application by the person aggrieved,, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings against the person aggrieved in any court and that any legal proceedings instituted by the vexatious litigant against the person aggrieved in any court before the making of the order shall not be continued by the vexatious litigant without leave of the Court. (3) The Court may from time to time rescind or vary any order made by it under subsection (1) or subsection (2). (4) Where the Court has made an order under subsection (1) or subsection (2) against any person the Court shall not give that person leave to institute or continue any proceedings unless the Court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings." 17 The application by the Attorney-General was heard by McInerney J. On 13 June, 1990 he made orders under s.84(1) of the Supreme Court Act as follows: "1. That until further order the defendant be restrained by himself or by his servants or agents from: (i) instituting any legal proceedings, whether civil or criminal, in any court in this State without the leave of this court; (ii) instituting any application in any legal proceedings, whether civil or criminal, already instituted in any Court in this State without the leave of this Court; (iii) instituting any appeal in respect of any legal proceedings, whether civil or criminal, in any court in this State without the leave of this Court." 18 The effect of such orders is that the person against whom they are made (and who is described in s.84(1) as a vexatious litigant) cannot without leave of the Court institute or continue any proceedings "unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings." It is because of the order made by McInerney J that the two motions filed by Dr Spautz, being Notices of Motion 1 and 2, come before the Court. 19 In determining the motions it is appropriate to advert to the test of purpose for abuse of process propounded by the High Court in Williams v Spautz (1991-1992) 174 CLR 509. Although in former times the criterion for abuse of process was regarded as being whether the improper purpose was the sole purpose of the moving party, the correct view now is "that the predominant purpose is the criterion". (at 529) If the proceedings "are used as a stalking-horse for extortion or merely as an instrument for vexation and oppression" (Williams v Spautz supra at 543 per Deane J) they are an abuse of process. 20 In determining whether such criterion has been established the High Court confirmed that : "It is, of course, well established that the onus of satisfying the court that there is an abuse of process lies upon the party alleging it. The onus is 'a heavy one' to use the words of Scarman LJ in Goldsmith v Sperrings (1977) 1 WLR at 498 and the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances." (id) 21 The decision to make the order under s.84(1) was arrived at by McInerney J some ten years ago. That decision was not the subject of an appeal. In the present motions by Dr Spautz seeking leave under s.84 to institute particular proceedings, an onus is cast upon him to satisfy the court that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings (s.84(4)).

A. Abuse of Process 22 When the motions were being heard Dr Spautz said that it was essential that a decision be given in relation to Notice of Motion 1 before 5 May, 2000. This was because the Court of Appeal gave judgment on 5 May, 1994 dismissing his appeal from the decisions of Rath J and Rolfe J which upheld the validity of the resolution of 20 May, 1980 and his dismissal consequent thereon. Dr Spautz submitted that the damage he suffered as a consequence of the causes of action which he was seeking leave to commence against the defendants crystalised only when that decision was given and that the claims would be statute barred on 5 May, 2000. 23 In order to cover the contingency that this might be so, I announced my decision in respect of the relief sought in Notice of Motion 1 on 3 May, 2000 saying, inter alia,: "I have come to the firm conclusion that the leave sought by Dr Spautz should not be granted. I have reached this conclusion because I am not satisfied that the proceedings which he proposes and in respect of which he seeks relevant leave are not an abuse of process nor am I satisfied that there is prima facie ground for such proceeding."

I then indicated that detailed reasons for this conclusion would be given in due course. 24 Although there was separate representation for each of the defendants and some of the grounds on which various of the defendants resist the granting of the leave sought by Dr Spautz are different, there are some grounds that are common to all defendants. Thus all defendants submit that the proceedings proposed by Dr Spautz are an abuse of process and that leave is not sought for the purpose of pursuing genuine causes of action, but rather for a predominant purpose which was improper and collateral and further that in any event there was no prima facie ground for such proceedings. 25 In support of the contention that the proceedings by Dr Spautz were an abuse of process the defendants relied on a number of admissions made by him either in evidence or in the course of argument. For example, he identified a number of people over and above the defendants who had already been sued by him but whom he wanted to sue again. His application for leave to sue the defendants was a step along such path. The persons identified included some of the University's lawyers and a magistrate who in the early 1980's had dismissed prosecutions instituted by Dr Spautz. They were people referred to in cross-examination before Brownie J: Q. Whom do you hope to commence new civil proceedings against? A. Oh, that's my lawyers. Q. Anybody else? A. Actually over the years I have accumulated a list of people I think deserved to be sued. Q. You mean by you? A. Oh, yes, yes. Including a lot of University people on council who were also faces in the crowd but all equally guilty or partially guilty. Q. Rather than identify each of them can you give us a rough number of how many you have in mind that in your view ought to be sued by you? A. Ought to be, rough number at the University 8 or 10."

26 In his cross-examination before Brownie J, Dr Spautz described his attempts to sue people as his "mission in life", that he wanted "to promote the study of ethicology" and that "as a professional psychologist and as an ordinary citizen I have a duty to do what I can to promote justice not just my own case but as test cases for other people". Reference to these statements gave rise to a sense of déjà vu since Dr Spautz had used virtually the same words in the course of his very long address in the present applications, just as he had before Hunt J (referred to in his judgment of 14 October, 1983) and Yeldham J (referred to in his judgment of 18 November, 1983). 27 How the case he wished to make against the defendants would be a test case for others, or at all, was not made clear by Dr Spautz. 28 Moreover, as his cross-examination proceeded he conceded "I don't want to litigate, I want to settle". This statement referred not to the actions he was seeking leave to commence, but to actions in which had previously failed.. He conceded his purpose for the applications was collateral : "My collateral purpose is to force the University to settle the claim or reinstate (me)"

Again this gave rise to a sense of déjà vu, since it was essentially what he had said in his final address to Brownie J (as he then was) in 1987. However, when said in 2000, it related to rights and actions that had finally been put to rest by the High Court in 1994. 29 Dr Spautz's mission in life has cost the State and its institutions many millions of dollars and has involved a great deal of the time of various courts - the Local Court, the District Court, the Supreme Court and the High Court. It has given rise to apprehension, concern, worry and significant cost for many people. The present motions are seen, and are being mounted, by Dr Spautz as a means by which he can (to use his word) "parlay" the actions which he seeks leave to commence, against those in which he has been unsuccessful. He explained that the word "parlay" was a racing term which involved betting an original stake, winning, then adding the original stake and winnings together to make the stake for a further bet, and continuing to do so in order to convert an initial minor stake into a very substantial win. In the context of his litigation he explained that by the use of this term he meant that he hoped to use the pressure of the present applications to bring about a settlement of his claims against the University and others, even though those claims had been put to rest, unsuccessfully for Dr Spautz, many years ago. 30 The application for leave to commence proceedings against the defendants is no more than a tactic by Dr Spautz in a wider game plan "to parlay" a situation in which the defendants and other persons, institutions and entities have pressure brought to bear on them to settle actions in which Dr Spautz has already failed. It is part of the campaign which Dr Spautz told Brownie J in 1987 he was "going to escalate" if he did not then obtain "re-instatement or something better." As already indicated, Dr Spautz failed in his attempts to obtain reinstatement or to obtain damages for wrongful dismissal by action in the courts. The history of his applications demonstrates the extent to which he escalated his campaign. 31 He would see gains from his campaign. The first is the prospect of forcing an ultimate settlement of claims that have already been dismissed. This would give him both money and a sense of satisfaction - a big win for the small investment of the present applications. For him, the applications are a possibly-very-successful-parlay. The second gain arises out of the fact that Dr Spautz appears to have been bitten by the litigation bug. Litigation has become a satisfaction in itself. Litigation has become a way of life for him. He revels in it. He enjoys the personal discomfiture and cost which his campaign of litigation brings to those whom he targets. He has even considered converting his campaign into a crusade. In the course of address he advanced the proposition that not only should he "be allowed to sue them" (meaning his lawyers and others he had sued unsuccessfully in the past), but that in addition : "There should be an inquiry set up by Parliament, may be recommended by somebody like yourself, there should be an inquiry, continued inquiry like the ICAC, into malfeasance and misfeasance and corruption in the legal profession. I submit that this whole thing is the tip of the ice berg." 32 His behaviour during the course of hearing of the present matters was ample testimony of his apparent obsession with litigation. First, he obviously enjoyed the forensic atmosphere. He was animated. He revelled in the cut and thrust of the court room. He used the privilege of the court to say what he wanted about various people and to make what can only be described as wild allegations. Second, he displayed a burning, almost overwhelming, desire to get into the witness box. He looked disappointed and expressed his disappointment on several occasions when none of his opponents wished to cross-examine him, despite several offers by him to go into the witness box. When the occasion finally arose that he did give evidence, he appeared triumphant. His day was made. 33 Sadly, his evidence demonstrated a lack of contact with reality, as the following sequence indicates. "Q. What is your occupation? A. Senior lecturer. Q. Where are you a lecturer? A. Senior lecturer at the University of Newcastle. Q. How long have you been senior lecturer there? A. Since 1973. Q. When did you give your last lecture? A. Officially, that is to students that were assigned to me to be lectured to, that was in summer school in February 1980. Q. And when were you last paid by the University by way of salary or wages? A. I think the last time I got a cheque from them was in May 1980. Q. That included severance pay and long service leave and other accumulations like that, did it? A. Well no, it wasn't severance pay it included - I think they gave me some sought of equivalent of a month's pay, but it wasn't severance pay I think it was ex gratia. Q. On 23 May 1980 (sic) there was a Resolution of the University Council, was there not, terminating your services. A. A purported resolution, yes. Q. And you were dismissed from the employment of the University? A. Purportedly, yes. Q. Since that time have you presented for the purposes of giving lectures at the University? A. Well, a qualified depending on what you mean by "presented" … Q. Have you gone to the University in order to give lectures? A. Well, again a qualified yes. I have gone there and I have lectured to people without being assigned. In other words I am a lecturer on a day-to-day basis even with my friends and relatives, so in that sense yes. Q. In an assigned lecture room? A. No. Q. Do you have any room assigned to you as your room? A. Since then, no your Honour, I was evicted." 34 This should be contrasted with the facts. Dr Spautz commenced proceedings in respect of his dismissal. This occurred on 23 May, 1980 as a consequence of a resolution of the University Council of 20 May 1980. In the twenty years that have passed since that time, Dr Spautz has litigated at first instance, appealed, appealed again and has sought on several occasions to re-open proceedings in which he has been unsuccessful. His litigation concerning his dismissal, whether for damages or as a means of seeking reinstatement, failed all along the line and any rights he may have claimed to have in that regard were exhausted in the High Court on 18 November, 1994 when special leave to appeal from the decision of the Court of Appeal upholding the decision of the primary judge to dismiss his action for wrongful dismissal was refused. Summary in relation to abuse of process - Notice of Motion 1 35 In my opinion the application for leave and the proceedings in respect of which leave is sought by Dr Spautz in Notice of Motion 1 constitute an abuse of process. They are not for the genuine purpose of seeking redress on the causes of action advanced, but predominantly for collateral purposes. This of itself would be a sufficient ground to dismiss the application since under s.84(4) of the Supreme Court Act, 1970 the Court is commanded by Parliament not to grant leave unless it is satisfied of two matters. The first is that the proceedings are not an abuse of process; the second, that there is prima facie ground for the proceedings. I am not satisfied as to the first matter, as the Supreme Court Act, 1970 requires.

B. Prima facie ground for the proceedings (i) Mr Morrow 36 As indicated on 3 May, 2000 and above, I am of opinion that leave should not be granted for Dr Spautz to commence proceedings against Mr Morrow on the causes of action for which leave is sought. There are reasons in addition to those set out in paragraphs 25 to 35 above, for leave being refused in respect of the claims proposed against Mr Morrow. The first is that Dr Spautz seeks to re-argue the same matters that were argued unsuccessfully before Bergin J in May, 1999 and in respect of which Her Honour gave judgment on 10 June, 1999. 37 In early 1999, Dr Spautz sought leave from the Equity Division of the court to institute proceedings against Mr Morrow in respect of bills of cost, production of documents and alleged torts. 38 The summons in the matter was filed on 9 April, 1999. It came on for hearing before Bergin J. Prayer 4 in such summons sought an order : "That the plaintiff ( Dr Spautz) be granted leave to sue the defendant (Mr Morrow) for the alleged torts committed by him as specified in the accompanying affidavit." 39 The supporting affidavit sworn by Dr Spautz related to events in the period from 1993 to 1996 arising out of Mr Morrow's retainer as Dr Spautz's solicitor. An examination of the affidavit reveals that the factual material on which Dr Spautz based his claims in tort against Mr Morrow is virtually identical with the material relied upon by Dr Spautz against Mr Morrow in support of Notice of Motion 1. 40 In respect of the application in relation to the bills of cost and production of documents Bergin J said that she was not satisfied that the bills of cost proceedings are not an abuse. She was also not satisfied that there was any prima facie ground for such proceedings and consequently refused leave to commence them. 41 In respect of the delivery up of documents Bergin J was satisfied that Dr Spautz had had all documents (with one possible exception) either in original or copy form. Accordingly, she was not satisfied that there was any prima facie ground for the proceedings nor was she satisfied that the proceedings were not an abuse. As a consequence she refused Dr Spautz leave to commence proceedings in respect of such documents. 42 As the argument progressed it became apparent that Dr Spautz wanted to re-argue the matters relating to his proposed claims in tort that he had raised before Bergin J, but to do so in extenso this time, rather than adopt the short course he had taken in relation to the same allegations before Bergin J. 43 For example, in the course of argument in the present matter Dr Spautz said that: "I made the mistake before Bergin J of not doing what I am doing now. In other words I felt I could give a short cut to save court time, establish my prima facie case quickly and easily, which I thought I had done but I must have made a mistake." 44 The congruity between the proposed proceedings in tort against Mr Morrow in respect of which leave was sought from by Bergin J and Brownie AJ in February, 2000 was substantially conceded by Dr Spautz in his cross examination before Brownie AJ: "Q: you now seek to institute proceedings against your former legal representatives, including Mr Morrow?"

A. But I object your Honour, that is for the next notice of motion not this one. I don't see it as relevant … Dr Spautz, : Please repeat the question. Q. That you have now sought leave to institute proceedings against your former legal representatives, including Mr Morrow. A. Yes. Q. The basis at least in relation to Mr Morrow is the same basis you sought leave from Justice Bergin. A. No, the renewal application includes more applications. Q. But apart from that it is essentially the same allegation, well, the basis is the same? A. I would say about 80 percent same." 45 That was an advocate's underestimate. In the present case the true situation is that the congruity is, or is virtually, complete. A comparison of the affidavit filed in support of the application before Bergin J with the affidavit sworn in support of the present application shows that the essential allegations are the same. The same result flows from a comparison between the facts alleged against Mr Morrow in relation to the claims in tort before Brownie AJ and those alleged against Mr Morrow in the present case. In this regard it is appropriate to bear in mind the words of Davies LJ in Becker v Teale (1971) 1 WLR 1475: "We all, unfortunately, know what ingenuity vexatious litigants can from time to time display in, if I may use the expression, cooking up imaginary claims and pursuing futile appeals." (supra at 1476) 46 The fact that a slight difference in terminology in describing the facts relied on may be resorted to by a vexatious litigant or that the description of the cause or causes of action may vary slightly is not the determinant. What matters is the substance of the claims sought to be litigated. In the present case the substance of the claims in tort against Mr Morrow in respect of which leave was sought from and refused by Bergin J is in all essential respects the same as that for which leave is sought against Mr Morrow in the present case; as was the substance of the claims in tort in respect of which leave was sought from and refused by Brownie AJ. 47 To allow yet another bite at the same cherry would be contrary to principle, whether that principle be expressed in terms of finality of decision, res judicata, estoppel, Anshun or otherwise. Section 84 should not be construed, or allowed to be used, as a gateway through which vexatious litigants may keep making applications for leave to commence proceedings which are essentially the same as proceedings in respect of which leave has previously been refused. This is an additional reason particular to Mr Morrow, why leave should not be granted to Dr Spautz. 48 The grounds of complaint against Mr Morrow relate to both the wrongful dismissal appeal and the action for false imprisonment in which he instructed counsel.

Spautz v University of Newcastle - Wrongful dismissal appeal 49 In relation to the wrongful dismissal appeal there are in essence five different matters of complaint:

i. Contrary to instructions certain grounds were not included in the Notice of Appeal. ii. Certain grounds included in the Notice of Appeal were abandoned without instructions.

iii. The so-called "Handley JA Notice of Motion" was not dealt with by being argued at the same time as the hearing of the substantive appeal to which the Notice of Motion was related.

iv. Incompetence as well as conspiracy with counsel to sabotage the success of the appeal.

v. Wrongful refusal to send "all correspondence" to Mr David Bennett QC, for the purpose of his advising on particular issues.

As to (i) 50 Dr Spautz has not been precise as to what it is he claims should have been, but was not, included in the appeal. In addition, there is no evidence that satisfies me that the non-inclusion of any additional grounds or matters in the Notice of Appeal was other than in the exercise of a proper professional judgment. Moreover, there is no evidence that satisfies me that even if any additional grounds or matters had been included in the Notice of Appeal they would have effected the outcome.

As to (ii) 51 I reject as inaccurate the claim by Dr Spautz that the abandonment of certain of the grounds in the Notice of Appeal was without his knowledge or instructions. The documentation between Dr Spautz and Mr Morrow at the material time makes it quite clear that it was effected with his knowledge and approval. I reject his claim that he did not find out about it until three or four years later. He knew about it at the time. At best what he now claims is a reconstruction by Dr Spautz of what he would like the situation to be. It is not what the situation actually was. His claim is at odds with the contemporaneous documentation. 52 Furthermore, the abandonment of such grounds has not been shown to my satisfaction to have been other than in the exercise of a proper professional judgment. The propriety of such a professional judgment is reinforced by the opinion of Mr David Bennett QC, whose advice is clearly against the efficacy of the grounds in question. Moreover, as with the matters dealt with in respect of (i) above, there is no evidence that satisfies me that if the matters abandoned had been included in the appeal it would have affected the outcome of the appeal. The material before the court, namely the advice of Mr David Bennett QC, is to be contrary.

As to (iii) 53 This ground of complaint is misconceived. The Notice of Motion in substance sought an order for a new trial of the proceedings which were heard and disposed of by Rolfe J. An appeal as of right was already pending in respect of the decision of Rolfe J. Handley JA declined to deal with the Notice of Motion separately and indicated that all matters concerning the proceedings should be dealt with at a single hearing. All matters that were considered by counsel to be appropriate were argued in the appeal. The matters covered by the so-called "Handley JA Notice of Motion" were subsumed in the hearing of the appeal and its determination.

As to (iv) 54 There is no evidence whatsoever to support this ground of complaint. Indeed, Dr Spautz appears to have been well represented by Mr Morrow who briefed highly qualified counsel, took advice as was needed, exercised his own proper professional judgments and extended himself in his clients best interests.

As to (v) 55 An examination of the contemporaneous correspondence and documents has satisfied me that the decision not to send "all correspondence" to Mr David Bennett QC for inclusion in his brief for opinion was approved by Dr Spautz. In this context it is appropriate to recall that Dr Spautz had a limited grant of legal aid in respect of the brief to be submitted for the opinion of senior counsel. Not only was the decision not to include "all correspondence" (which was voluminous and much of it not relevant to the matters for opinion) a proper exercise of professional judgment which was approved by Dr Spautz, but in addition it conformed with the grant by the Legal Aid Commission.

Spautz v Dempsey; Spautz v Butterworth - The false imprisonment, misfeasance in public office etc. 56 Although the basis for the allegation made by Dr Spautz against Mr Morrow in respect of this action is somewhat confused, there appear to be two essential areas involved:

(i) The inclusion in the pleadings (para 5A) of an allegation of vicarious liability of the State of New South Wales for the acts and errors of the magistrate, Mr Butterworth, doomed the action to failure and resulted in it being lost.

(ii) The deletion of two paragraphs (2D and 2E) concerning the classification and place of imprisonment of Dr Spautz from the Further Amended Statement of Claim was effected without instruction.

As to (i) and (ii) 57 The Further Amended Statement of Claim dated 16 May 1989 included paragraphs 2D and 2E. The hearing of the matter took place in December, 1992. After the hearing a Further Further Amended Statement of Claim was prepared. Paragraphs 2D and 2E were deleted from this Further Further Amended Statement of Claim and paragraph 5A was inserted. The Further Further Amended Statement of Claim was filed not later than 15 January, 1993. The effect of the alterations in it was twofold. First, the claim against the State of New South Wales based on the failure of the Corrective Services Commission properly to classify Dr Spautz as a prisoner was deleted. Second, a claim was added that the State of New South Wales was vicariously liable for the actions of the magistrate who wrongly issued the order for imprisonment consequent upon Dr Spautz not paying the costs which the Local Court had ordered against him in criminal proceedings which he had instituted. 58 The complaint by Dr Spautz that the inclusion of a claim based on vicarious liability doomed the action for false imprisonment to failure is without substance. Even if such a claim were to be accepted as unsound it would leave the rest of the Statement of Claim extant and call for an adjudication to be made in respect of it. Furthermore, there is no material that establishes to my satisfaction the allegation that the inclusion of the claim complained of had the effect alleged by Dr Spautz. 59 Young J gave judgment in the matter on 27 April, 1993 without considering the abandoned claim for misclassification and with whatever effect flowed from inclusion of the claim based on vicarious liability. 60 If any economic loss had been suffered by Dr Spautz it was suffered at latest when judgment was given by Young J. However, in the affidavit in support of his application Dr Spautz also claimed as part of his damages an aggravation of his depression as a consequence of his discovery that the pleadings had been amended. This was over and above the economic loss resulting from the failure of his claim. There is no evidence of a causal connection between any psychiatric condition from which Dr Spautz suffered and the amendment of the pleadings in the case before Young J. However even assuming that it occurred, it occurred within a short time after Dr Spautz received, read and understood Young J's judgment. He says he was "devastated" when he "read it". This is likely to have been within a relatively short time of the date of the judgment, namely 27 April 1993. At latest he had experienced a "nervous breakdown" by a date prior to 27 September, 1993. On that basis any action arising out of the amendments complained of would have accrued before the date of filing of Notice of Motion 1 on 2 November, 1999. As a consequence the claim made by Dr Spautz would also have been statute barred. 61 Dr Spautz's claim for damages under the Fair Trading Act suffers a similar fate. However, that fate would have been suffered three years earlier than 1999 since the limitation period under that Act is only three years.

Summary concerning Mr Morrow 62 Having examined the various bases of claim in tort in respect of which Dr Spautz seeks leave to commence proceedings, I am not satisfied that there is prima facie ground for any such proceedings.

(ii) Cummins QC 63 Cummins QC was briefed to appear on behalf of Dr Spautz before Rolfe J in 1991 and before the Court of Appeal in December, 1993 in the appeal taken from decisions of Rath J of 10 September, 1982 and of Rolfe J of 18 April, 1991 in the wrongful dismissal proceedings, Spautz v University of Newcastle. Rath J determined a separate question concerning the validity of the University Council's resolution of 20 May, 1980 adversely to Dr Spautz. Rolfe J determined the issues that remained outstanding after the decision by Rath J on 10 September, 1982 adversely to Dr Spautz. 64 When regard is had to the commencement date referred to in Notice of Motion 1, the period to which Dr Spautz's present application relates, is in and after November 1993. It therefore refers only to the appeal from the decisions of Rath and Rolfe JJ in which Cummins QC was briefed. 65 Cummins QC received his formal brief on hearing for the appeal on about 9 December, 1993. The appeal was heard on 16 December, 1993 and judgment was given on 5 May, 1994. 66 The causes of action which Dr Spautz seeks leave to prosecute against Cummins QC are set out in paragraph 5 above. The factual basis for these causes of action is that Cummins QC limited the argument on the appeal to two points. This was done because Cummins QC made the professional judgement that the other grounds would almost certainly not succeed and that arguing them would detract from the effectiveness of the argument on the points which might have some prospects of success. 67 The evidence reveals that prior to the hearing of the appeal Cummins QC made the judgment and gave advice that the argument should be limited to the two points to which I have referred. His instructing solicitor, Mr Morrow, accepted such advice having first confirmed that Dr Spautz agreed with it. 68 The judgment made by Cummins QC related to the presentation of the appeal in which he appeared. It was a forensic judgment. Barristers must exercise independent judgment in relation to matters in which they appear. They are required to do so by the rules governing the conduct of barristers in New South Wales. Barristers are not mere mouthpieces for their clients. They owe a duty to the court which transcends their duty to their clients. It is not a breach of the duty which barristers owe to their clients to exercise independent forensic judgment even contrary to the wishes of their clients 69 There is no evidence that would support a conclusion that the forensic judgment made by Cummins QC in relation to the arguing of Dr Spautz's appeal from the decisions of Rath and Rolfe JJ was other than a proper exercise of professional function and certainly nothing to establish to my satisfaction that his exercise of professional function was such as to give rise to liability in tort. His judgment was consistent with an earlier opinion from Mr David Bennett QC as to the lack of prospects of success of a number of grounds of appeal. 70 There is another basis on which Dr Spautz would fail in his proposed claim against Cummins QC. The action in negligence and gross negligence that he seeks leave to commence would be futile because of the immunity from suit which applies to barristers in respect of both in-court acts and to out-of-court work intimately connected with or ancillary to the conduct of a case in court. (Giannarelli v Wraith (1988) 165 CLR 543; Keefe v Marks (1989) 16 NSWLR 713 at 719; Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209 at paras 97, 112 - 114 and 361). 71 An allegation that particular matters or grounds were not argued in an appeal falls precisely within the scope of "conduct of a case in court" or "work done out of court which leads to a decision affecting the conduct of the case in court" (Giannarelli v Wraith supra at 559, 560 per Mason CJ) 72 The public policy which underlies such immunity has a number of aspects. One relates to the peculiar nature of a barrister's responsibilities when appearing for a client in litigation. Another is the adverse consequences for the administration of justice which would flow from the re-litigation in collateral proceedings in negligence of issues determined in the principal proceedings (Giannarelli v Wraith supra at 555 per Mason CJ). 73 In examining this second aspect of public policy Mason CJ pointed out that exposure of counsel to liability would : "unquestionably encourage litigation by unsuccessful litigants anxious to demonstrate that but for the negligence of counsel, they would have obtained a more favourable outcome in the initial litigation." ( Giannarelli v Wraith supra at 558)

Such an adverse consequence is the very one involved in the present case. The proceedings proposed by Dr Spautz against Cummins QC for negligence and gross negligence in the conduct of the appeal would necessarily involve a collateral attack on the decision of the Court of Appeal of 5 May, 1994. 74 In my opinion, the immunity of a barrister from actions for negligence (or gross negligence) in the conduct of a case in court or in work out of court which leads to a decision affecting the conduct of a case in court would cause the action proposed by Dr Spautz against Cummins QC to fail. This is an additional reason for my not being satisfied that there is prima facie ground for the proceedings against Cummins QC. 75 There is no evidence to support a prima facie ground against Cummins QC for any other of the "actionable wrongs" on which Dr Spautz seeks to rely, namely perversion of the course of justice, fraud and/or deceit, breach of the Fair Trading Act, breach of the Legal Profession Act and Rules and equivalent common law provisions, conspiracy to commit such wrongs and conspiracy to injure the plaintiff by unlawful means (see generally para 86 below). The claim based on "contempt of court" related to the so-called "Handley JA Motion" and order has already been dealt with. There is no prima facie ground for such alleged cause of action.

Summary in relation to Cummins QC 76 I am not satisfied that there is prima facie ground for the proceedings proposed by Dr Spautz against Cummins QC.

(iii) Rofe QC 77 The allegations against Rofe QC are concerned with events related to the case of Spautz v Dempsey in which Rofe QC was briefed by Mr Morrow to appear with Mr Cameron on behalf of Dr Spautz. The claim was for wrongful arrest. It was heard by Young J in December 1992 when judgment was reserved. The basis of the claim is that two paragraphs, namely paragraphs 2D and 2E, were deleted from the Statement of Claim and one paragraph, namely paragraph 5A, was inserted. This is the same claim as that made against Mr Morrow and dealt with in paragraphs 56 to 61 above. The conclusions arrived at in respect of the claim against Mr Morrow apply to the same claim made against Rofe QC. I am not satisfied that there is prima facie ground for such proceedings. 78 There are however additional reasons for coming to this conclusion in relation to Rofe QC. One is barristers immunity which is dealt with in paragraphs 68 to 74 above. That immunity applies to the matters alleged against Rofe QC. 79 In addition, the claims based in fraud, deceit and conspiracy as well as the claims in negligence and gross negligence are statute barred. This reason has been dealt with above when considering a like claim made against Mr Morrow. Those considerations provide additional reasons for not being satisfied there is prima facie ground for the proceedings, whether they be characterised as claims in tort or claims based upon statute. Summary in relation to Rofe QC 80 I am not satisfied that there is prima facie ground for the proceedings proposed against Rofe QC.

(iv) Mr Cameron 81 Mr Cameron was junior counsel in Spautz v University of Newcastle (wrongful dismissal) at first instance and on appeal. He was instructed by Mr Morrow and in those proceedings was led by Cummins QC. He was also junior counsel in Spautz v Dempsey and Spautz v Butterworth (false imprisonment,misfeasance in public office etc.). 82 In relation to the wrongful dismissal proceedings the only matter over and above the matters claimed against Cummins QC, (with which I have already dealt) is that when Dr Spautz claims to have instructed him to apply to the Court of Appeal for a direction or other action to refer the case "back down to Rolfe J to amend and augment his earlier incomplete judgment," Mr Cameron is claimed to have said "The Court of Appeal would not want to set such a precedent". 83 What Dr Spautz appears to have been giving instructions to do is to seek an order, not by way of appeal but by some other mechanism, to have Rolfe J re-consider and add to a judgment which was complete. There is no such procedure available. Furthermore, Rolfe J had already rightly refused to alter or add to his judgment. Even assuming that Mr Cameron said what is alleged by Dr Spautz it would not give rise to a cause of action. 84 As far as the abandonment (i.e. not arguing) of certain grounds of appeal and as far as amendments to the pleadings form the basis of any application for leave to bring an action against Mr Cameron, he has a number of defences. Limitation of actions, barrister's immunity, absence of essential elements of causes of action are but some. He also has the fact that he was junior counsel. In the structure of a litigation team, it is the ultimate decision by senior counsel as the leader of the team that determines what happens in conduct of the litigation. This is an additional reason why there is no prima facie ground for proceedings against Mr Cameron. 85 Insofar as the false imprisonment claim is concerned, the allegation is that Mr Cameron, who appeared with Rofe QC, was party to an amendment to the pleadings in or about early January 1993, unbeknown to Dr Spautz and contrary to his instructions. I have already dealt with this claim as it has been made against Rofe QC. All that needs to be added to my reasons for concluding that I am not satisfied that there is prima facie ground for those proceedings is that Mr Cameron was junior counsel in the proceedings. Nothing is alleged against him in respect of the amendment over and above that which is alleged against Rofe QC. As the junior member of the litigation team Mr Cameron was not in a position to overrule a professional judgment made by his leader.

Summary conclusion in relation to Mr Cameron 86 I am not satisfied that there is prima facie ground for any of the proceedings against Mr Cameron in respect of which Dr Spautz has sought leave. (vi) General 87 There are additional bases for my not being satisfied that there is prima facie ground for the proposed proceedings against the defendants. In view of the reasons I have already expressed it is unnecessary to do other than advert to them briefly. They are :

(a) Perversion of the course of justice. This is not recognised by the law as a tort. In Williams v Spautz (supra) the tort of collateral abuse of process was discussed, but the facts as pleaded by Dr Spautz do not come within the ambit of such tort.

(b) Fraud and deceit There is no evidence to establish a number of the essential elements of fraud and deceit. Those elements for which there is no evidence include the fact of any misrepresentation, knowledge that any representation was false or otherwise such as to bring it within the ambit of the tort, intention that any representation should be relied upon or any reliance to his detriment by Dr Spautz on any representation.

(c) Breach of Legal Profession Act and Rules. Whilst in an appropriate case breach of the Legal Profession Act and Rules may evidence negligence or breach of contract there is no separate cause of action for breach of the Legal Profession Act and Rules.

(d) Conspiracy. There is no evidence that would found an action for or inference of conspiracy on the part of Dr Spautz's legal advisers.

Notice of Motion 2 (17 March 2000) 88 By Notice of Motion filed on 16 October, 1998 Dr Spautz sought leave to make an application to have the orders made by McInerney J on 13 November 1990 revoked and the summons filed by the Attorney-General in 1989 under s.84 of the Supreme Court Act, 1970 dismissed for want of prosecution. The matter came before Brownie AJ, who refused the relief sought for the primary reason that : "No single judge (can) set aside an order made by another judge upon the basis that the second judge was biased." 89 Furthermore, he determined that in any event, even if there were power, he would not exercise it because:

(a) the order made by McInerney J had been taken out on 5 July 1990 contrary to the submission by Dr Spautz that it had not been taken out;

(b) there was no evidence of bias on the part of McInerney J; and

(c) there were no errors of law by McInerney J in reaching his conclusion and making an order against Dr Spautz under s.84 of the Supreme Court Act. 90 There was no appeal from the decision of Brownie AJ of 18 February, 2000. 91 Dr Spautz admitted that he failed to raise this matter before Brownie AJ. His reason sounded and was hollow. He claimed that it was "because there was insufficient time to do so". In the past as in the hearing of the present matter, time has not presented as a problem for Dr Spautz. I have no doubt that the claim by Dr Spautz is no more than an after thought. 92 Notice of Motion 2 in relation to the judgment of Brownie AJ, like the Notice of Motion dealt with by Brownie AJ in relation to the judgment of McInerney J, alleges personal interest and involvement and bias on the part of the judge. The evidence filed by Dr Spautz in support of his application in respect of the judgment of Brownie AJ asserts that he (Dr Spautz) had "formed the view" that Brownie AJ "should disqualify himself for bias and for personal interest and involvement in a matter that he was to make judgment on". Neither the nature of the personal interest of Brownie AJ nor the basis on which bias was alleged against him is specified. The general allegation is followed by the assertion that such personal interest and bias were "such as to justify his automatic disqualifications under the rules of natural justice." Because of this so-called "automatic disqualification", Dr Spautz asserted that "no appeal should be necessary". This is not unlike a claim he made in respect of Sully J, following a 53 day hearing before him which culminated in a judgment adverse to Dr Spautz on 4 September, 1992. It is also at odds with the claim by Dr Spautz that no appeal was lodged because of constraints of time. 93 The primary reason given by Brownie AJ for dismissing the Notice of Motion by Dr Spautz of 16 October 1998 is applicable to Notice of Motion 2, presently under consideration. Except in a rare special case (e.g. as created by statute; see the Bail Act, 1978 s.45 and Regina v Kaddour and Turkmani [2000] NSWSC 888 , Supreme Court of New South Wales, unreported 14 April, 2000) it is not competent for a single judge of the court to revoke an order by a judge of coordinate jurisdiction once such order has been entered. A single judge may not, in effect, sit on appeal from a judge of co-ordinate jurisdiction. The correct mechanism for challenging the decision of a judge of the court is by way of appeal to a higher court. Dr Spautz did not appeal from the decision of Brownie AJ given on 18 February 2000, just as he did not appeal from the decision of McInerney J given on 13 June, 1990. 94 For this reason alone Notice of Motion 2 should be dismissed. However, there are other additional reasons whereby leave to commence proceedings of the kind contemplated by Dr Spautz in Notice of Motion 2 should be refused. First, Dr Spautz has not satisfied me that the proceedings which he proposes to commence are not an abuse of process, nor has he satisfied me that there is prima facie ground for such proceedings. 95 Notice of Motion 2 does not seek leave to make an application to the Court of Appeal for leave to appeal out of time against the decision of Brownie AJ of 18 February, 2000. The reasons for this are obvious. Any such application would be doomed to failure, both because of the unexplained and significant delay and the strong likelihood that no such leave would be given by the Court of Appeal for substantive reasons as well. 96 Second, the relief sought by way of amendment in Notice of Motion 2 is itself doomed to failure. As the evidence given by Dr Spautz indicates the amendment is not sought bona fide for the purposes of genuinely pursuing rights, but in truth for the purposes of maintaining a thorn in the side of the Attorney-General and in turn posing a threat to a host of other people who have already been sued unsuccessfully; probably others as well. The actions which Dr Spautz seeks leave to commence are merely stalking horses. The real and dominant purpose of the proposed litigation is to bring pressure on the Attorney-General and others as part of a campaign to force various persons to settle a number of actions in which the courts have already held Dr Spautz is not entitled to any redress, whether by way of money or reinstatement. 97 Third, no error of law has been identified by Dr Spautz in the judgment of Brownie AJ. In my opinion none exists. Furthermore, even if it did, an appeal would have been the way to test the matter, not the present motion. 98 Fourth, it is no doubt because of the absence of any such error that Dr Spautz has resorted to claims of "personal interest and involvement and bias" on the part of Brownie AJ. There is not a shred of evidence to substantiate such claims. They are in my opinion both misconceived and mischievous. Brownie AJ joins a long list of judges and members of the Council of the University of Newcastle against whom Dr Spautz has made the same kind of unfounded allegations. 99 Fifth, the reasons referred to in paragraphs (25 - 34) above further reinforce the conclusion to which I have come that Notice of Motion 2 should be dismissed.

Notice of Motion 3 (Attorney-General, 3 May 2000) 100 Had I heard and determined Notice of Motion 3 filed by the Attorney-General before that filed by Dr Spautz in respect of the judgment of Brownie AJ (Notice of Motion 2), I would have granted the relief sought by the Attorney-General essentially for the reasons set out above. Having already come to the conclusion that Notice of Motion 2 should be dismissed, there is no need for me to make the substantive order sought by the Attorney-General. The order sought by him is subsumed in the order for dismissal of Notice of Motion 2. SUMMARY 101 Notices of Motion 1 and 2 should be dismissed and no order should be made in Notice of Motion 3 other than an order as to the costs of the motion. 102 (Dr Spautz addressed on costs.)

COSTS 103 As is apparent from these reasons for judgment, I am not satisfied that there is prima facie ground for any of the causes of action in respect of which Dr Spautz has sought leave to institute proceedings. Furthermore, not only am I not satisfied that the proceedings are not an abuse of process, but I am affirmatively satisfied that the proceedings in respect of which Dr Spautz seeks leave are such an abuse. In addition, the length of the proceedings before the court was extended by the desire of Dr Spautz to go over many matters which had been agitated before as well as many others that were not really connected with his applications. 104 Dr Spautz has submitted that there should be no order as to costs in respect of any of the Notices of Motion. He submits this in respect of Notice of Motion 1 because he says, "That is what Bergin J did, no doubt because she recognised that there was much merit" in a number of his claims. That certainly does not emerge from the judgment of Bergin J; quite the contrary. 105 In relation to Notice of Motion 2, he submits that no order as to costs should be made because the judgment does not deal with all of matters that he raised. This is reminiscent of the application for review that was made by Dr Spautz to the High Court when he said that 41 of the matters advanced by him had not been dealt with by the High Court. I deal with that application in the same way as the High Court did. The judgment speaks for itself. The matters raised, that needed to be dealt with, have been dealt with. Dr Spautz has been unsuccessful. 106 In relation to Notice of Motion 3, it has been said by Dr Spautz that the Attorney General was unsuccessful. That is just nonsense. The Attorney General did not have the substantive orders he sought made because Dr Spautz had already failed in the notice of motion in respect of which the Attorney General had filed his notice of motion. Essentially the Attorney General got what he sought. 107 In each of the matters Dr Spautz has been unsuccessful. The normal order is that costs should follow the event and in my opinion, they should. However, the nature of the claims and the conduct of the hearing by Dr Spautz could be such as to fall within the class of case that calls for some mark of disapprobation on the part of the Court, whether that is sought by the parties or not. An order for costs on an indemnity basis generally betokens that a claim that has been made is wholly unjustified or that a defence that has been raised is deliberately false or time-wasting or that there have been some circumstances in relation to the conduct of the case which calls for a departure from the usual order for costs and by so doing to record the courts disapprobation of the course taken (Degman Pty Ltd (in liq) v Wright No 2 (1983) 2 NSWLR 354 per Holland J; Wentworth v Rogers No 5 (1986) 6 NSWLR 534 at 542 per Kirby P; Hobartville Stud Pty Limited v Union Insurance Co Limited (1991) 25 NSWLR 358 per Giles J; Northridge v Central Sydney Area Health Service [2000] NSWSC 1241, Supreme Court unreported 29 December 2000 at para 121). 108 In the circumstances, an appropriate order could be that Dr Spautz should pay the costs of each motion and do so on an indemnity basis. 109 On such a basis the orders of the Court would then be as follows:

1. The notices of motion filed by Dr Spautz are dismissed.

2. Dr Spautz is to pay the costs of all parties on an indemnity basis.

3. In the Attorney General's notice of motion, there will be no order other than an order for costs against Dr Spautz on an indemnity basis. 110 (Dr Spautz addressed on the question of the appropriate form of the order for costs)

1. The Notices of Motion filed by Dr Spautz are dismissed.

2. Dr Spautz is to pay the costs of all parties on an indemnity basis.

3. In the Attorney-General's Notice of Motion there will be no substantive order made. No order as to costs. **********

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