Four cases are then cited: Williams v Spautz (1992) 174 CLR 509; Varawa v Howard Smith Co Ltd (1911) 13 CLR 35; Metall & Rohstoff AG v Donaldson Lufkin & Jenrett Inc [1990] 1 QB 391; Little v Law Institute of Victoria [1990] VR 257.
21 I have looked at all these cases and others. Of the four cited in the note, Williams v Spautz is a case of an application for stay of criminal proceedings on the basis that they were an abuse of process. At 526-7, the majority discussed the boundaries of the tort of abuse of process. It noted that it was insufficient that there was an unworthy or reprehensible motive for bringing the action and that it must appear that the purpose sought to be effected was improper, though fraud did not have to be established. The object sought to be effected by means of the process must be outside the lawful scope of that process. However, "to say that a purpose of a litigant in bringing proceedings which is not within the scope of the proceedings constitutes, without more, an abuse of process might unduly expand the concept. The purpose of a litigant may be to bring the proceedings to a successful conclusion so as to take advantage of an entitlement or benefit which the law gives the litigant in that event" (526). Accordingly, it is permissible to bring proceedings against a political opponent in a local government arena so that after those proceedings are successfully terminated, the opponent will be disqualified from office. The improper purpose must be the predominant purpose; it need not be the sole purpose of the moving party. The onus on the plaintiff is a heavy one: see Goldsmith v Sperrings Ltd [1977] 1 WLR 478, 498.
22 Varawa is a case where the allegation was that the issue of a ca re was an abuse of process. However, the Court, after discussing the tort, held that it had not been committed in that particular case. The Metall case involved an allegation that a false defence constituted the tort. At 469-470 the English Court of Appeal discussed the elements of the tort and held that such an allegation was not within its bounds. Little's case was not a case of abuse of process under the Grainger v Hill rule at all, but rather a case akin to a malicious prosecution.
23 Prosser and Keeton on Torts, 5th ed (West Publishing Co, St Paul, 1984) pp 897 et seq discuss the ambit of the tort in some detail. The learned authors say at 898:
"The essential elements of abuse of process ... have been stated to be: first, an ulterior purpose, and second, a wilful act in the use of the process not proper in the regular conduct of the proceeding. Some definite act or threat not authorised by the process, or aimed at an objective not legitimate in the use of the process, is required. ... The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by use of the process as a threat or a club. ...
Some of the decisions have said that there must be an improper act, such as an extortion attempt, after the process has issued and that an act committed beforehand is not enough. Most of these cases probably stand only for the narrower proposition that there must be an overt act and that bad purpose alone is insufficient."
24 Putting aside for the moment the question of what damages have to be pleaded in order to maintain the cause of action, I should now turn to the allegations in the further amended statement of claim. As Mr Bhagat has submitted, I must decide the matter on the pleadings and assume, for the purpose of this application, that the facts pleaded in the statement of claim will be found to be true, including all necessary ancillary facts that flow from the pleaded facts. As Mr Bhagat put it, relying on the unreported decision of the NSW Court of Appeal on 14 March 1991 in Penthouse Publications Ltd v McWilliam, the applicant for summary disposal must accept the truth of all allegations in the opposing pleading, including the ranges of meaning that the assertions of fact in that pleading are reasonably capable of bearing.
25 The question is thus whether on those assumptions the claim against ASIC should be struck out on the basis that no reasonable cause of action is disclosed.
26 For this purpose it is necessary to analyse what facts are pleaded.
27 Paragraph 46 of the further amended statement of claim is not pleaded against the 11th defendant, but contains an allegation against other defendants that those other defendants induced ASIC to send its paralegal to the plaintiff's residence on 27 and 28 May 1998 for a collateral purpose, and for the predominant purpose of obstructing, preventing or defeating an interlocutory hearing on 28 May 1998 in which the plaintiff was appearing as a litigant in person so occupying and diverting the plaintiff from that motion. It was put in the allegation against those other defendants that, inter alia, ASIC must have been aware that the plaintiff would be completely preoccupied in the interlocutory hearing of 28 May and should not have been disturbed by process servers in other actions. The particulars to this allegation say that a process server constantly, for a few hours on 27 May 1998 and in the morning of 28 May 1998, kept buzzing on the intercom of the plaintiff's residence and disturbed the plaintiff when he was preparing for that interlocutory hearing, and simultaneously a paralegal of ASIC buzzed the intercom attempting to serve documents in proceedings 4626 of 1994. These allegations are repeated in various other paragraphs with respect to other defendants.
28 In para 49 of the further amended statement of claim, it is alleged that ASIC, by its employed solicitor, abused the process of the court "for a collateral purpose" to file in collusion with "various other defendants a frivolous and vexatious notice of motion in proceedings 4626 of 1994 with a return date of 28 May 1998" for the "predominant purpose of obstructing, preventing or defeating the course of justice at the interlocutory hearing on 28 May 1998" in proceedings 4984 of 1998 in which the plaintiff was appearing as a litigant in person without legal representation. Further, ASIC arranged for a paralegal to serve documents on 27 and 28 May almost simultaneously with a process server attempting to serve documents on the plaintiff in proceedings 2539 of 1998 on 27 and 28 May 1998. It is put that the 11th defendant knew, or must have known, that proceedings 2539 of 1998 had been commenced, that proceedings 4984 of 1998 were listed for hearing on 28 May 1998 and that a process server would be serving documents on the plaintiff. The motion did not require service by a paralegal, yet that was the method used by ASIC.
29 It is to be noted that no extortion is said to have been involved in the actions of ASIC. There is no damage alleged to either the person or property of the plaintiff.
30 Prosser and Keeton note at pp 898-900 that an ulterior purpose and an overt act are the only elements of the tort as it is usually stated, and there is an implication that there is no requirement of interference with person or property, but that most of the cases do involve that.
31 It is quite clear that when an action is brought for the tort of malicious prosecution, unless the damage falls within the three categories set out by Holt CJ in Savill v Roberts (1698) 12 Mod 208; 88 ER 1267, namely: