Commonwealth Trading Bank of Australia v Inglis

Commonwealth Trading Bank of Australia v Inglis - [1974] HCA 17 - HCA 1974 case summary — Zoe

[13]

In England there appears to have been no relevant statute or rule of court until the enactment of the Vexatious Actions Act, 1896 (56 & 60 Vict. c. 51). In moving the second reading of the bill in the House of Lords, Lord Halsbury referred in detail to numerous actions that had been brought by one person against a number of other persons, including judges and other persons holding public office. It was said that "the time had arrived when some sort of stop should be put to such proceedings". The Bill provided that an application for an order that a person should not issue process without leave should be made by the Attorney-General. The person to whom Lord Halsbury referred had brought some forty-eight actions, the details of which were given. His name was Alexander Chaffers. An application against him was the first case brought under the 1896 Act. It is reported as Ex parte the Attorney-General; Re Alexander Chaffers [7] . It was argued that the court could not take account of actions that had been instituted before the passing of the Act. The argument was rejected and an order was made. No one suggested that there was any relevant inherent power. In In re Boaler [8] , the Court of Appeal considered a question as to the construction of the Act of 1896, that is, whether the expression "legal proceedings" included criminal proceedings. It was held that it did not. Kennedy L.J. described the Act as "one which even in regard to civil proceedings seriously abridges the right of the subject to such redress in the Courts of law" [9] . Scrutton J. spoke of the Act as having deprived the subject in part of a valuable right. The view has later been taken that an amendment of the similar Act passed in England in 1925 did not interfere with a "substantive right" of a litigant: see Attorney-General v. Vernazza [10] . But the observations of Kennedy L.J. and Scrutton J. in the earlier case are quite incompatible with the notion that the Court had power apart from statute to make an order of the kind to which the 1896 Act referred. Vernazza's Case was based on s. 51 (1) of the Supreme Court of Judicature (Consolidation) Act, 1925, which replaced the 1896 Act, which gives power to make an order that no legal proceedings should be instituted without leave. The Supreme Court of Judicature (Amendment) Act, 1959 contained an amendment which empowered the courts to order that any legal proceedings already instituted should not be continued without leave.

[21]

Provisions of the kind under consideration were prompted in England and in Victoria by specific cases multiple vexatious proceedings being brought by a particular person. According to an interesting article published in the Australian Law Journal, Vol. 17, p. 9, the relevant amendment in 1943 of the rules of this Court had a similar origin, except that several litigants took part in a campaign of litigation aimed against the issue of money by means of bank credit and against the Commissioner of Taxation for alleged offences consisting of the collection of taxes. On applications made by defendants, orders were made by judges of the Supreme Court of Western Australia (exercising federal jurisdiction pursuant to s. 17 of the Judiciary Act, 1903-1940) striking out the statements of claim and dismissing the actions. The article refers also to another litigant in Victoria, in respect of whose writs an order was made by a Justice of this Court staying the proceedings in accordance with the rule which is now O. 63, r. 2. The author makes the comment that the orders in Western Australia were "based on the inherent jurisdiction of the Court to reject process which amounted in effect to an abuse of that Court's process" and that this appeared a more direct method of dealing with the question than was the expedient adopted in Victoria. No doubt it was more direct. Whether it was correct or not need not be determined in the present case. If there is inherent jurisdiction to strike out a statement of claim and to dismiss summarily an action which has been commenced in the Court because the action constitutes an abuse of process, a matter which need not presently be decided, the existence of the jurisdiction would be of no assistance in determining whether or not there is inherent jurisdiction to restrain a person from commencing a new proceeding without leave. It is significant that in the cases in Victoria and in Western Australia, to which the article refers, no order of the latter kind was made, although it seems plain enough that such an order would have been appropriate if it had been considered that there was power to make it.

[25]

But the making of unwarranted and vexatious applications in an action which is pending in the court is, in our opinion, a matter over which there is an inherent power in the court to exercise control. There is an essential difference, in our opinion, between regulating the conduct of such an action so as to prevent the court's process from being abused, on the one hand, and impeding a particular person in the exercise of a right of access to the court, on the other hand. In Cox v. Journeaux [No. 2] [15] it was stated that there is inherent power to stay an action as vexatious and in that case that power was exercised. In Lord Kinnaird v. Field [16] , to which we have referred, a defendant in an action, who had put on a counterclaim, had made twenty-nine interlocutory applications and had failed to pay costs which he had been ordered in many of those applications to pay. The plaintiffs sought an order that the defendant should not be allowed to make any further applications in the action without leave of the Court. Warrington J. considered that the cases of Grepe v. Loam [17] and Suir v. Newton [18] , were sufficient as precedents for such an application. He made an order that the defendant was not to be allowed without leave to make any application under the summons for directions, or to issue any summons on matters of procedure, or to serve any notice of motion to discharge any order made in chambers on any such application as aforesaid, without such leave. The Court of Appeal entertained no doubt that Warrington J. had power to make the order and it dismissed an appeal. As we have said earlier, the order related to the proceedings in an existing action before the Court. The case of Grepe v. Loam [17] , mentioned by Warrington J., was one in which, after judgment had been given in two actions, repeated applications were made to have the judgments set aside or for orders inconsistent with them. An order was made prohibiting the making of any further applications in these actions without leave. The applications were regarded as being made "in the actions", although they were after judgment. The case of Suir v. Newton [18] is reported very briefly, but it appears that non-compliance with an order for costs was the ground upon which it was ordered that no notice of motion was to be given without leave.

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Before

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Judgment (31 paragraphs)

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