Solicitors for appellant: Wallace Wilkinson and Webster

Counsel for respondent: S McElwaine and A Blandford

GREEN CJ On 16 December 1989 the appellant was convicted inter alia of uttering a forged document purporting to be the will of Leslie John Dakin. It was an essential ingredient of the crime that the signature on the will purporting to be that of the testator was a forgery and that the appellant knew that it was a forgery. Under what for convenience I shall call the will, the appellant was the sole beneficiary and Norman Knott was the sole executor. By an action commenced in this court on 21 February 1986 Mr Knott sought to prove the will in solemn form. Mr Knott died before the action could be heard and by order made on 2 June 1988 the appellant was substituted as the plaintiff. The respondent is the deceased's nephew and would be entitled to the whole of the estate in the event of an intestacy. Shortly before the trial of the action the respondent amended his defence by adding an allegation in par3 that the statement of claim:

"is an abuse of process and/or the Plaintiff is estopped

from asserting that alleged Last Will and Testament is that

of the deceased".

2. The particulars of that allegation included an allegation that the appellant had been convicted of the crime to which I have referred. The learned trial judge recorded in his reasons for judgment that he had directed "that the abuse of process question be tried as a preliminary issue under the provisions of O39, r8 of the Rules of Court" and determined that the appellant's action should be struck out. This is an appeal from that decision.

3. The trial judge also recorded in his reasons for judgment that:

"For the purpose of this procedure it was agreed that the

will which the plaintiff seeks to prove in this action, is

the same document as that alleged to be a forgery in the

criminal proceedings. It was also conceded by the plaintiff

that it was necessary for the jury to be satisfied beyond

reasonable doubt that the document was indeed a forgery in

order to convict him upon the criminal trial. A certificate

of conviction tendered by the defendant formally proved the

plaintiff's convictions in the Criminal Court. The

plaintiff, however, does not concede that the certificate of

conviction has evidentiary value or is admissible for any

other purposes if the action goes to trial on the merits."

4. In my respectful view the proceeding upon which the learned trial judge embarked was misconceived. It seemed to be treated as if it were akin to a determination of a preliminary question of law under the Rules of the Supreme Court, O28, r2 or as an application by the respondent that the action be struck out as an abuse of the process of the court. But in fact it was neither: it was a determination made pursuant to a direction given under O39, r8 which provides that:

"Subject to the provisions of the preceding rules of this

Order, the Court or a judge may, in any cause or matter, at

any time, order that different questions (whether of fact or

law) be tried at different places or by different modes of

trial and, having regard to the advantage of hearing

evidence without undue delay, the costs which may be

incurred and any other matter, that a question or questions

be tried before any other or others."

5. Thus the proceeding which the trial judge heard was the trial and final determination of the particular issue raised by that part of par3 of the defence which alleged that the statement of claim was an abuse of process. It was not a preliminary issue but part of the trial. But in my view it was not possible for that determination to be made on the basis of the limited admissions which the appellant had made. A question may only be determined under O39, r8 upon the basis of a final determination of any issues of fact which that question may entail and those issues may only be determined after a proper trial of those issues or upon the basis of admissions which bind the party making them for the purposes of the whole action. In this case the appellant made limited admissions for the purpose of the proceeding before the trial judge but as I understand it made no admissions which were binding upon him for the purposes of the trial. In those circumstances I cannot see how it was possible to make a final determination of the issue raised by that part of par3 of the reference to which I have referred. However as both parties acquiesced in the trial judge embarking upon this proceeding and as there is no appeal against the exercise of his discretion to give the direction he did I shall express my opinion upon the issues raised in this appeal.

6. The principle which the learned trial judge applied was that which he held was established by the House of Lords in Hunter v The Chief Constable of the West Midlands Police and Others [1981] UKHL 13; (1982) AC 529 that:

"it is an abuse of the process of the Court for a convicted

person to seek to challenge his conviction (having exhausted

all proper grounds of appeal) by a collateral action in

which the same issues are sought to be agitated".

"There is nothing new in the principle that it is contrary

to public policy and an abuse of the process of Court to

seek to relitigate issues already decided at a public

criminal trial"

and referred to passages from the judgments of Mason J,

Wilson J and Dawson J in Gianarelli v Wraith (1988) 165 CLR

543. His Honour concluded by describing the principle as

having:

"a similar effect to estoppel in that further litigious

disputation may be prohibited in certain identifiable

circumstances. Whatever may be the correct jurisprudential

classification of this consequence - whether issue estoppel,

res judicata or simply the prevention of abuse of process it

has as its source and justification a firmly entrenched

principle of public policy that the final determination of

an issue by a court of justice should not be amenable to

attack or dispute by collateral action, the outcome of which

may be destructive of public confidence in the

administration of justice.

8. In my opinion the present case falls squarely within this principle and as a result, the plaintiff's action should be struck out."

9. The source and nature of the power to dismiss an action as an abuse of process were restated by the High Court in Williams v Spautz [1992] HCA 34; (1992) 66 ALJR 585 which was heard after the learned trial judge gave judgment. At 588 Mason CJ, Dawson, Toohey and McHugh JJ said:

"It is well established that Australian superior courts have

inherent jurisdiction to stay proceedings which are an abuse

of process. (Clyne v NSW Bar Association [1960] HCA 40; (1960) 104 CLR 186

at 201; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 96, 107,

116; Jago. Although the term 'inherent jurisdiction' has

acquired common usage in the present context, the question

is strictly one of the power of a court to stay proceedings.

That power arises from the need for the court to be able to

exercise effectively the jurisdiction which the court has to

dispose of the proceedings.) The existence of that

jurisdiction has long been recognised by the House of Lords

(Metropolitan Bank v Pooley (1885) 10 App Cas 210; Connelly

v DPP (1964) AC 1254; R v Humphrys (1977) AC 1). The

jurisdiction extends to both civil and criminal proceedings.

As Lord Morris of Borth-y-Gest observed in Connelly v DPP

(1964) AC, at 130: '(A) court which is endowed with a

particular jurisdiction has powers which are necessary to

enable it to act effectively within such jurisdiction. ... A

court must enjoy such powers in order to enforce its rules

of practice and to suppress any abuses of its process and to

defeat any attempted thwarting of its process'."

10. It is well established that "(t)he circumstances in which abuse of process can arise are very varied": per Lord Diplock in Hunter v Chief Constable of the West Midlands Police and Others (supra) at 536. One recognised category of such circumstances is whether the predominant purpose of a litigant is to improperly use legal proceedings "as a means of obtaining some advantage for which they are not designed" or as a means of obtaining "some collateral advantage beyond what the law offers": per Mason CJ, Dawson, Toohey and McHugh JJ in Williams v Spautz (supra) at 591. The existence or non existence of such a purpose does not necessarily depend upon the subjective motivation of the litigant. As the same justices observed in Williams v Spautz (supra) at 592:

"Inquiry into motivation alone might prove a fragile

foundation on which to base an exercise of the power to

grant a permanent stay. For that reason, apart from any

other, it is more satisfactory to base an exercise of the

jurisdiction in cases of improper purpose upon a use or

threatened use of the proceedings for such a purpose. Then

the conclusion which the court reaches is more likely to be

founded upon objective evidence rather than subjective

evidence of intention."

11. In Hunter v The Chief Constable of the West Midlands Police and Others (supra) the appellant had been convicted of murder. At his trial a voir dire had been held to determine the admissibility of a confession said to have been made by the appellant which the appellant claimed had been obtained by the infliction of physical violence by police officers. The trial judge was satisfied beyond reasonable doubt that no violence had been used and admitted the evidence. The appellant made the same claim before the jury. The evidence other than that of the confession was not sufficient to ground a conviction, and accordingly the trial judge instructed the jury that if they thought that the appellant's claim might be true they should acquit the appellant. The appellant subsequently commenced an action against the police for damages for the assault which had been the subject of his allegations at the trial. The House of Lords upheld the decision of the Court of Appeal that the proceedings should be struck out as an abuse of the process of the court.

12. Lord Diplock, with whose speech all the other members of the court agreed, at 541 expressed the core of his opinion in the following terms:

"The abuse of process which the instant case exemplifies is

the initiation of proceedings in a court of justice for the

purpose of mounting a collateral attack upon a final

decision against the intending plaintiff which has been made

by another court of competent jurisdiction in previous

proceedings in which the intending plaintiff had a full

opportunity of contesting the decision in the court by which

it was made.

The proper method of attacking the decision by Bridge J in

the murder trial that Hunter was not assaulted by the police

before his oral confession was obtained would have been to

make the contention that the judge's ruling that the

confession was admissible had been erroneous a ground of his

appeal against his conviction to the Criminal Division of

the Court of Appeal. This Hunter did not do. Had he or any

of his fellow murderers done so, application could have ben

made on that appeal to tender to the court as 'fresh

evidence' all material upon which Hunter would now seek to

rely in his civil action against the police for damages for

assault, if it were allowed to continue. But since, quite

apart from the tenuous character of such evidence, it is not

now seriously disputed that it was available to the

defendants at the time of the murder trial itself and could

have been adduced then had those who were acting for him or

any of the other Birmingham Bombers at the trial thought

that to do so would help their case, any application for

its admission on the appeal to the Court of Appeal (Criminal

Division) would have been doomed to failure.

It would call for a degree of credulity too extreme to be

expected even from judicial members of your Lordships' House

to fail to recognise that the dominant purpose of this

action, and the parallel actions brought by the other

Birmingham Bombers so far as they are brought against the

police, has not been to recover damages but is brought in an

endeavour to establish, long after the event when memories

have faded and witnesses other than the Birmingham Bombers

themselves may be difficult to trace, that the confessions

on the evidence on which they were convicted were induced by

police violence, with a view to putting pressure on the Home

Secretary to release them from the life sentences that they

are otherwise likely to continue to serve for many years to

come. A significant indication that the recovery of

monetary damages is not the principal object of the civil

action may be discerned in the manner in which the action

has been conducted as against the Home Office. Despite the

fact that ever since August 1979, when the Home Office

amended their defence by admitting liability for assaults by

the prison officers, Hunter has been in a position to obtain

judgment against the Home Office on liability and proceed to

an assessment of damages, no step has yet been taken on his

behalf to do so.

My Lords, collateral attack upon a final decision of a court

of competent jurisdiction may take a variety of forms. It

is not surprising that no reported case is to be found in

which the facts present a precise parallel with those of the

instant case. But the principle applicable is, in my view,

simply and clearly stated in those passages from the

Judgment of A L Smith LJ in Stephenson v Garnett (1898) 1 QB

677, 680-681 and the speech of Lord Halsbury LC in Reichel v

Magrath (1889) 14 App Cas 665, 668 which are cited by Goff

LJ in his judgment in the instant case. I need only repeat

an extract from the passage which he cites from the judgment

of A L Smith LJ: '... the court ought to be slow to strike

out a statement of claim or defence, and to dismiss an

action as frivolous and vexatious, yet it ought to do so

when, as here, it has been shewn that the identical question

sought to be raised has been already decided by a competent

court.'

The passage from Lord Halsbury's speech deserves repetition

here in full: '... I think it would be a scandal to the

administration of justice if, the same question having been

disposed of by one case, the litigant were to be permitted

by changing the form of the proceedings to set up the same

case again'."

13. His Lordship then went on to give his reasons for concluding that the trial judge's ruling on the voir dire constituted a final decision of a competent court upon the very questions which the appellant was seeking to raise in the action for damages and that accordingly the proceedings constituted an abuse of the process of the court.

14. In the present case the learned trial judge rejected the argument that the appellant's purpose in bringing the proceedings was a critical factor in the conclusion reached in Hunter's case. Whilst his Honour acknowledged that "Certainly Lord Diplock was at pains to point out the motivation, or the perceived motivation, of the appellant in that case" he also pointed out that Lord Diplock:

"did not formulate the rule or the principle which clearly

emerges from Hunter as being conditional upon malafides or

ulterior motive. Indeed, it is understandable why he should

stop short of doing so. It may be difficult in any trial,

even after hearing all of the evidence, to determine that a

person had a particular motive for his actions. Sometimes a

motive is apparent, sometimes it is not. Sometimes multiple

and confused motives dictate a course of action."

15. In my respectful view Hunter's case is not authority for the principle expressed in the unqualified form relied upon by the learned trial judge. Lord Diplock expressly referred to the abuse of process exemplified by that case as being the initiation of proceedings "for the purpose" of mounting a collateral attack upon a decision made by another court. Further, if Lord Diplock did not regard the appellant's purpose in bringing the proceedings in Hunter's case as a relevant factor then the long paragraph in his speech devoted to that issue would have to be regarded as obiter dicta of an especially gratuitous kind the inclusion of which is quite inexplicable.

16. I am not persuaded that Lord Diplock's reliance upon the passage from the judgments in Stephenson v Garnett (supra) and Reichel v Magrath (supra) which are set out above should be regarded as supporting the learned trial judge's view of the effect of Hunter's case. I would with respect adopt the comments upon the effect of those cases made by Kneipp J in Lamari v Lamari (1988) Qd R 144 at 146 and 147. After referring to the passage from the judgment of A L Smith LJ in Stephenson v Garnett (supra) set out in the judgment of Lord Diplock his Honour said:

"If that is read literally then of course it supports the

proposition of counsel for the plaintiff. However, the

passage must be read in the light of the facts of the case.

The facts of the case were that in previous litigation

between the plaintiff and the defendant a question of fraud

had been raised during an interlocutory proceeding, and that

question had been decided against the plaintiff in the

second action. The plaintiff sought to raise the same issue

again in the second action. The finding in the first action

had not been the subject of a judgment, having been raised

in an interlocutory proceeding. For that reason, the

defendant in the second action could not rely on the plea of

estoppel per rem judicatam. The basis of the decision,

however, was that an issue which had been raised and decided

between the same parties in a previous action should not be

allowed to be litigated again, that to allow this to be done

would be an abuse of process of the Court and that,

therefore, the action should be stayed.

There is another case cited on the same page, Reichel v

Magrath (1889) 14 App Cas 665. In that case the plaintiff,

a new encumbent of a benefice, claimed possession of the

parsonage from the defendant, the previous encumbent. The

defendant sought to resist the claim on ground which had

been decided against him in a previous action between him

and the bishop of the diocese. In that context, Lord

Halsbury said at 668, ' ... I think it would be a scandal to

the administration of justice if the same question having

been disposed of by one case a litigant were to be permitted

by changing the form of the proceedings set up the same case

again'. In substance, of course, that was what the House of

Lords held that the plaintiff was endeavouring to do in

Hunter's case."

17. In brief Stephenson v Garnett (supra) was in substance a case of estoppel between the same parties and Reichel v Magrath (supra) was a case in which a party was using the proceedings for an improper purpose. I also note that in the following cases the view was taken that the principle in Hunter's case included a requirement that the subsequent proceedings were taken for an ulterior purpose: Mickelberg v Director of the Perth Mint (1986) WAR 365 per Burt CJ at 371 and Kennedy J at 382; Saffron v Federal Commissioner of Taxation [1991] FCA 363; (1991) 102 ALR 19 per Davies J at 23, Lockhart J at 29 and Beaumont J at 39 and Commissioner of Australian Federal Police v Hatfield and Others [1992] FCA 43; (1992) 106 ALR 335 per Olney J at 350.

18. With respect I am of the view that two of the passages from the judgments in Gianarelli v Wraith (supra) which were relied upon by the learned trial judge do not support the view that the litigant's purpose is irrelevant. At 558 Mason J referred to "collateral attacks" on court decisions and disappointed litigants using subsequent proceedings "as an indirect means of calling in question the decision in the initial litigation". Similarly at 573 Wilson J referred to the situation in which a disappointed litigant institutes a civil proceeding "with a view" to proving that the original decision was wrong.

19. I share the learned trial judge's reservations about making a litigant's subjective motivation the test of whether his proceeding constitutes an abuse of process although if his motivation could be proved - by for example evidence of an admission - I cannot see why it should not be relevant. But I think that any difficulties which such a test might otherwise have involved would be obviated by determining the issue by objective criteria in the way favoured by the High Court in Williams v Spautz (supra).

20. The proceedings commenced by the plaintiff are regular and only in the most exceptional circumstances should a plaintiff be deprived of his right to have them fully determined after a full trial on the merits. I am not persuaded that the mere fact that the appellant's action will involve the litigation of an issue which was determined against him at the criminal trial is sufficient by itself to sustain the conclusion that his action is an abuse of the process of the court. Some additional element such as unfairness to another party or an improper motive is required. There is not any reason for concluding that the appellant has any ulterior motive in bringing these proceedings. He has served his sentence and there is not the slightest reason to believe that he has any purpose in bringing this action other than to secure the distribution to himself of the fund of three quarters of a million dollars which comprises the estate. In my view the appeal should be allowed and the order made by the learned trial judge should be set aside.

21. I should make it clear that I would not regard the setting aside of the order made by the learned trial judge as constituting a determination of the issue of whether the action constitutes an abuse of the process of the Court. That issue remains an issue raised by the pleadings which will have to be determined at the trial in the light of all the evidence as it eventually emerges at the trial.

22. I should also emphasise that the only issue which I regard as having been before the trial judge and the only issue to which I have directed my mind in this appeal is the issue of which he was seised by virtue of his direction "that the abuse of process question be tried as a preliminary issue ...". No order or direction was made which authorised his Honour to determine the distinct issue raised in par3 of the defence that "the plaintiff is estopped from asserting that alleged Last Will and Testament is that of the deceased". In my view that issue was not before his Honour. With respect I do not agree with the view which the learned trial judge appeared to take that the issues raised by the two pleas are the same. They are quite different juridical concepts and the conditions for their application are quite different. In my view the issue raised by the plea of estoppel must be determined separately from the plea that the action is an abuse of process. I also add the observation that I would not regard a conclusion that the action was not an abuse of process as necessarily precluding an argument that the law of estoppel might nevertheless have the effect of precluding the appellant from asserting that the will is that of the deceased. The decision of the Court of Appeal in McIlkenny v Chief Constable (1980) 1 QB 283 would appear to support such a conclusion and see also the discussion in Phipson on Evidence 14 Ed at par33-68. I appreciate that in Hunter's case the House of Lords at 540 rejected the approach taken by the majority in the Court of Appeal but that conclusion was not strictly necessary for their Lordships' decision and in any event the view expressed in Hunter's case may not represent the law in Australia.

23. The appeal should be allowed and the order that the appellant's action be struck out as an abuse of process should be set aside.

COX J In December 1989 this court, in its criminal jurisdiction, after a finding of guilt by a jury of his peers, recorded the conviction of the appellant on (inter alia) a charge of uttering a forged document which purported to be the will of one Leslie John Dakin made on 28 April 1984. It was, of course, implicit in that recorded finding that the will in question was in fact forged, that is to say a document which was made a false document in order that it might be used as genuine (Criminal Code, s277(1)) and that the appellant uttered it, that is he delivered it to another with intent to defraud knowing that the will was forged. He appealed to the Court of Criminal Appeal against his conviction, but his appeal was dismissed; and he served the sentence of imprisonment which had been imposed upon him.

2. Prior to the appellant being placed upon trial, the sole executor named in the forged will, Norman Knott, commenced this action seeking probate thereof in solemn form of law. The appellant was the sole beneficiary named therein. The respondent is the late Mr Dakin's nephew and next-of-kin and would be entitled to the whole of the estate upon intestacy. Some time prior to the trial at which the appellant was convicted Mr Knott died and on 2 June 1988 the appellant was, by order of the Master, substituted as plaintiff in the probate action. The appellant continued with the action which was struck out by the learned trial judge as an abuse of the process of the court on the basis that it constituted an attack upon the final determination by this court in its criminal jurisdiction of the issue as to the authenticity of the alleged will, and that as such an attack by collateral action could, if successful, be destructive of public confidence in the administration of justice its further maintenance offended a firmly entrenched principle of public policy. This is an appeal from that decision, and from other findings of his Honour on matters raised by the appellant in reply to the respondent's plea that the action was an abuse of process, namely findings that there was fresh evidence now available to the appellant of a kind which in any event brought him within the exception to any such principle.

3. There can be no doubt that the court has an inherent power to stay or to strike out an action the further conduct of which would amount to an abuse of its process (Williams v Spautz [1992] HCA 34; (1992) 66 ALJR 585 and the cases cited at 588, to which page Green CJ refers in his reasons for judgment herein which I have had the advantage of reading). Likewise, there is considerable variety in the circumstances in which abuse of process can arise. As Green CJ points out, one recognized category of such circumstances is where the predominant purpose of a litigant is to improperly use the proceedings "as a means of obtaining some advantage for which they are not designed", or as a means of obtaining "some collateral advantage beyond what the law allows" (again citing from Williams v Spautz (supra) at 591). In Hunter v The Chief Constable of the West Midlands Police and Ors [1981] UKHL 13; (1982) AC 529 the House of Lords held that the proceedings for assault brought by persons convicted of murder against police officers who the judge presiding at the trial for murder had, on a voir dire, found had not inflicted violence upon them, should be struck out as an abuse of the process of the court. An important factor in so classifying the action was that its purpose, as perceived by their Lordships, was to put pressure on the Home Office to release the prisoners because the verdict of guilty would clearly be impugned by a finding in a civil action that the police officers had assaulted them at a time immediately preceding the making of disputed confessions. But although Lord Diplock, with whose speech the remaining law Lords agreed, described (at 541) the abuse of process which that case exemplified as:

"... the initiation of proceedings in a court of justice

for the purpose of mounting a collateral attack upon a

final decision against the intending plaintiff which has

been made by another court of competent jurisdiction in

previous proceedings in which the intending plaintiff had a

full opportunity of contesting the decision in the court by

which it was made,"

his Lordship asserted the principle in terms by no means

restricted to the purpose of the party bringing or

maintaining the action sought to be struck out. At 542 he

said:

"... the principle applicable is, in my view, simply and

clearly stated in those passages from the judgment of A L

Smith LJ in Stephenson v Garnett (1898) 1 QB 677, 680-681

and the speech of Lord Halsbury LC in Reichel v Magrath

(1889) 14 App Cas 665, 668 which are cited by Goff LJ in

his judgment in the instant case. I need only repeat an

extract from the passage which he cites from the judgment

of A L Smith LJ: '... the court ought to be slow to strike

out a statement of claim or defence, and to dismiss an

action as frivolous and vexatious, yet it ought to do so

when, as here, it has been shewn that the identical

question sought to be raised has been already decided by a

competent court.'

The passage from Lord Halsbury's speech deserves repetition

here in full: '... I think it would be a scandal to the

administration of justice if, the same question having been

disposed of by one case, the litigant were to be permitted

by changing the form of the proceedings to set up the same

case again.'"

4. It is true that Stephenson v Garnett (supra) was a second action between the same parties involving issue estoppel rather than res judicata, but with respect it seems to me that the reliance by Lord Diplock upon the principle as therein expressed to a case which, like the instant one, is not governed by the principles of estoppel because of a lack of mutuality of parties is a strong indication that his Lordship regarded the improper ulterior motive of the plaintiff in the second action as an additional reason for regarding that action as an abuse of process and not the sole reason. In the case of Reichel v Magrath (supra) there was also a lack of mutuality which prevented reliance upon the principles of estoppel (see the statement of facts on 667 as to the view on this point taken in the Court of Appeal from which their Lordships expressed no dissent and the report of proceedings in that Court (1888) 4 Times LR 296). But it was because, notwithstanding that lack of mutuality, the same issue had been previously tried in circumstances where Reichel had had due opportunity to present his case that the court intervened. Lord Halsbury LC said, at 698:

"It surely must be in the jurisdiction of the Court of

Justice to prevent the defeated litigant raising the very

same question which the Court has decided in a separate

action,"

while Lord Watson, on the same page, said:

"My Lords, this is an attempt by the appellant to retain

the temporalities of the benefice of Sparsholt by

re-trying, with his successor in the benefice, the same

issues which have already been conclusively decided against

him in a question with his proper contradictor. The Court

must, in my opinion, have jurisdiction to forbid any such

abuse of its process."

5. That judgment was delivered by their Lordships immediately following their rejection of Reichel's appeal in the case of Reichel v The Bishop of Oxford (1889) 14 AC 259 in which the House of Lords upheld the order of the Court of Appeal which had declared that the benefice held by him became void upon the acceptance of his resignation by the Bishop. In the case struck out, Reichel had sought to defend the claim of the newly appointed incumbent on the basis that his own incumbency was not void. It would have been a strange state of affairs if the House of Lords, on the same day upon which it had upheld the Court of Appeal and affirmed its order and declaration in a case to which he was a party, had permitted the unsuccessful appellant, whatever his purpose and whoever his adversary, to continue to assert in another action the precise opposite of that declaration.

6. That, it seems to me, is exactly what the appellant in the instant case is seeking to do. Certainly it would have that effect. This court, in its criminal jurisdiction, has determined that he uttered a forged will, yet if that verdict represents the true state of affairs, he seeks to utter it again (the term "to utter" being defined in the Criminal Code, s277(1) as meaning, among other things, "to tender in evidence" with the intent and knowledge to which I have already adverted) to this same court in its probate jurisdiction and to seek its authentication of that forged document as Mr Dakin's true last will and testament.

7. In Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 the High Court determined that a barrister could not be held liable in tort for negligent in-court representation of a client which resulted in the client's conviction in the criminal court. This exception from liability was said by Mason CJ, at 557, to have been created "not to benefit counsel but to protect the administration of justice". One aspect of public policy giving rise to the immunity, his Honour said at 558:

"... is the impact on the administration of justice of

allowing court decisions to become the subject of

collateral attack by means of actions against counsel for

in-court negligence. Exposure of counsel to liability for

such negligence 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. That

would be the central issue for decision in secondary

litigation of this kind. If the plaintiff were to succeed,

the resolution of this issue by a different court and on

materials which might well differ from those presented in

the initial litigation, due to lapse of time or other

reasons, would undermine the status of the initial

decision. Yet an appeal against that decision might not

succeed with the result that it would stand, though its

status would be tarnished by the outcome of the collateral

proceedings. The impact of a successful challenge to a

criminal conviction resulting in a sentence of imprisonment

would be all the greater. It would be destructive of

public confidence in the administration of justice. And

for this very reason there would be a strong incentive on

the part of a disappointed litigant to sue counsel for

negligence as an indirect means of calling in question the

decision of the initial litigation."

8. While it might well be said that Mason CJ emphasised the undesirability of disappointed litigants being otherwise presented with the opportunity to sue their counsel for the purpose of impugning a verdict they claimed resulted from their counsel's negligence, it was not merely the purpose of the disappointed litigant which he seems to have regarded as significant but the effect of such collateral litigation upon the public's confidence in the administration of justice.

9. Wilson J, at 573, contrasted the normal course of appellate review where a decision might be set aside and a new trial ordered with that where a disappointed litigant institutes a civil proceeding in a court of co-ordinate jurisdiction with a view to proving that the original decision was wrong by reason of counsel's negligence. If such an action succeeded, the original verdict would be necessarily tarnished. Such a situation, he held, would "clearly have the capacity to bring the administration of justice into disrepute" (at 574). As I read his Honour's judgment, what is significant is the objective effect upon "public confidence in the integrity of the law" (ibid) by permitting collateral attacks upon issues already pronounced upon by the verdict of a court of competent jurisdiction rather than the subjective purpose of the litigant. He expressed the fundamental principle favouring finality of litigation which he said "has been found necessary to conserve public confidence in the administration of justice." (ibid) Dawson J found that relitigation before a different tribunal of issues already decided "would be intolerable after a criminal trial. The verdict of the jury would be impugned in a court of law and yet, assuming all avenues of appeal to have been exhausted, it would remain with all its consequences" (at 595).

10. I agree that, like Hunter (supra), Giannarelli v Wraith was a case where the object of the later proceedings seems to have been the impugning of the earlier conviction whereas in the instant case it is difficult to conclude that this is the appellant's predominant purpose and the learned trial judge did not so find, but in my respectful view the passages which I have cited from the judgments of the three justices who directed their attention specifically to this aspect of public policy demonstrate that the true principle is that proceedings having this undesirable effect amount to an abuse of the process of the court, and that where their purpose, not merely their consequence, is to impugn a conviction then a fortiori they must be an abuse of process.

11. The House of Lords in Hunter recognized that the existence of fresh evidence not available at the first trial and not discoverable then by reasonable diligence, might justify the continuation of a second action on the same issue as was decided in the first action (per Lord Diplock at 545 where he expressed his full agreement on this aspect of the case with the judgment of Goff LJ in the Court of Appeal reported sub nom McIlkenny v Chief Constable of the West Midlands (1980) 1 QB 283 at 333-335). I shall return to this aspect of the present case for the learned trial judge held after hearing evidence on this point that the appellant did not fall within this exception and that is the subject of grounds of appeal. The point is, however, that the considerations of public policy are not so rigid as to deny a litigant redress in a collateral action in those relatively rare circumstances where fresh evidence which entirely changes the aspect of the case later comes to light.

12. In the case of Mickelberg v Director of the Perth Mint (1986) WAR 375 an action was brought by the Director for the recovery of gold of which, in an earlier criminal prosecution, the appellants had been convicted of defrauding the Director. They denied a number of allegations implicitly found by the jury, including their fraudulent receipt of the gold. The Master struck out the relevant paragraphs of the defence as an abuse of the court's process and they appealed. Burt CJ, after reviewing Hollington v Hewthorn (1943) 1 KB 587 and determining that it was not binding in Western Australia so as to prevent the admission of evidence of the conviction, upheld the appeal but gave leave to amend the pleadings to permit the Director to plead the conviction and the appellants to plead facts which, if established, would displace the prima facie proof the conviction would constitute. At 372 he said:

"When those facts are pleaded one will be in a better

position to judge whether the plea is an abuse of the

process of the court or whether it is frivolous or

vexatious. It is not to be thought that this way of

proceeding is an invitation to the appellants to

re-litigate in a civil court the charges upon which they

were convicted in a criminal court. They cannot do that.

And if, as appears to be the case, they intend to displace

the prima facie evidence, which is their convictions on the

ground of fresh evidence, that evidence must not only be

fresh in the sense that it was not available at trial and

could not by the exercise of reasonable diligence have then

been obtained, it must also be evidence which 'entirely

changes the aspect of the case' - see Lord Cairns LC in

Phosphate Sewage Co Ltd v Molleson (1879) 4 App Cas 801 at

814 and expressly adopted by Lord Diplock in Hunter's case

supra at 545. That test which is the proper test in the

case of a collateral attack upon the verdict in a court of

co-ordinate jurisdiction is more rigourous than the test to

be applied when the fresh evidence is being relied upon in

an appeal court upon an appeal by way of re-hearing."

13. Having expressed the view that leave to amend should be given accordingly his Honour said at the conclusion of his reasons:

"The Director can then move again, if so advised, to strike

out the appellants' amended pleading or, if not amended,

then the pleading as it presently stands upon the ground

formulated in par 1(i) of the master's order."

14. Smith J was of the view that the appeal ought to be dismissed without giving the appellant the opportunity to plead the existence of significant new evidence. At 377 he said:

"It is, of course, a fundamental distinction between

Hunter's case and the instant case that in the former case

the convicted persons were the plaintiffs in the action,

whereas in the present case the appellants are defending a

claim brought against them. Nevertheless, by the denials

in pars 3, 4 and 5 of their defence the appellants seek to

raise again questions already decided against them in the

earlier criminal proceedings in the District Court where

each had a full opportunity of presenting his whole case.

And no facts have been pleaded to bring the attack so made

on the earlier finding within the exception to the general

rule of public policy discussed in Hunter's case."

15. The third member of the Court, Kennedy J, was for allowing the appeal on the ground that there was an insufficient basis to conclude that the appellant's purpose was to retry the criminal charges. At 382 he said:

"It may be accepted that, in the present proceedings, the

appellants are seeking directly to attack their

convictions, but the critical consideration appears to me

to be that they are doing so in order to defend a claim

which has been brought against them, and they are not the

initiators of proceedings which have the dominant purpose

of retrying their criminal charges. There is, in my

opinion, nothing before us to enable this Court to conclude

that the defence serves the dominant purpose of retrying

the charges against them, notwithstanding that, the defence

standing, this will be an incidental consequence. It

would, I think, be wrong in the present case to regard the

relevant paragraphs of the defence as constituting an abuse

of process. To hold otherwise, it seems to me, would

amount virtually to giving conclusive effect to a

conviction, a proposition which does not appear ever to

have been asserted, although it must be acknowledged that

while the view that evidence of a conviction was not

admissible in later civil proceedings was held, that

question could never have arisen."

16. He alone took the view that the matter could, in the circumstances of that case, proceed to trial with the whole issue previously determined in the criminal court being relitigated and the weight to be given to any convictions which might be proved left to be assessed by the trial judge. The report does not reveal what order the court actually made.

17. In Mickelberg (supra) it was necessary to determine whether the Rule in Hollington v Hewthorn (supra) should be followed in Western Australia for, if it were binding, the fact upon which the application to strike out the relevant paragraphs of the defence was based could not be proved. In the present case the appellant did not object to the admission of a certificate of conviction for the purposes of the hearing of the preliminary issue and counsel on his behalf made a formal admission that the will referred to in the certificate was the same will as was the subject matter of the action. Nevertheless, there was no concession that it proved any more than the fact of conviction nor that it was prima facie evidence of the commission of the crimes of which he was convicted. It is necessary therefore to determine whether the Rule is binding in this State.

18. As the learned trial judge stated, considerable doubt has been cast upon the validity of Hollington v Hewthorn (supra) in recent years. Lord Diplock in Hunter v The Chief Constable (supra) said (at 543) that it was "generally considered to have been wrongly decided", although by the time of that decision legislation in the United Kingdom had already been passed abrogating it and substituting a set of statutory provisions as to the evidentiary value to be attached to proof of a conviction depending upon the nature of the proceedings in question. The most detailed examination of the case was conducted by the Court of Appeal of New Zealand in Jorgensen v News Media (Auckland) Ltd (1969) NZLR 961. Lord Denning MR said in McIlkenny v Chief Constable of the West Midlands (supra) that Hollington v Hewthorn had been examined by the New Zealand Court of Appeal in Jorgensen "with great skill and much learning and (he) gladly adopted all their reasoning". He went on to say that if need be he would, without hesitation, depart from it although in view of the legislation that was no longer necessary. In Mickelberg the Full Court of the Supreme Court of Western Australia declined to follow it and Burt CJ, like Lord Denning, declared himself in entire agreement with the views of the New Zealand Court of Appeal in Jorgensen. With respect I, too, agree and find it unnecessary to reproduce the reasons advanced by the courts which have examined the issue.

19. If the rule in Hollington v Hewthorn (supra) does not apply in this State, then a conviction in itself is prima facie evidence of the facts essential to constitute the crime (In the Estate of Crippen (1911) P 108; Jorgensen v News Media (Auckland) Ltd (supra); Mickelberg (supra)). Sir Samuel Evans P, in In the Estate of Crippen (supra) at 115, did not hold the conviction of Crippen for the murder of his wife conclusive evidence of his guilt in fact but "as presumptive proof of the commission of the crime". However, in In re Hall's Estate (1914) P 1, Cozens-Hardy MR, in a case which decided that a person convicted of manslaughter though not of murder was likewise debarred from taking a benefit from the deceased's estate, said at 4:

"The death of the testator was due to the act of Jean

Baxter. That is a fact which has been proved and is now

incontestable. She was found guilty of occasioning the

death, and the verdict of manslaughter was given. The case

was taken to the Court of Criminal Appeal and the decision

was upheld, and therefore that is a fact which is

conclusively proved."

20. Whatever the position may be in respect of relitigating facts implicit in a conviction where the convicted person seeks to challenge them as part of the process of defending an action against him, in an action in which he can only succeed if he can obtain an affirmative finding of fact in direct conflict with that essential to his conviction, then, in my view, if the convicted person does not rely upon, or relying upon does not establish, the existence of fresh evidence or other exception, the prima facie evidence becomes conclusive for the purposes of an application such as the present, for there is no basis for rejecting it.

21. In Saffron v Federal Commissioner of Taxation [1991] FCA 363; (1991) 102 ALR 19, all three members of the Full Court of the Federal Court regarded the critical factor in Hunter's case as being that "it is the purpose of the proceedings which constitutes the abuse of process" (per Davies J at 23 and see Lockhart J at 29 and Beaumont J at 39-40). The applicant Saffron had been, between the institution of his appeals against the Commissioner's assessments and their hearing in the Federal Court, convicted of a count of conspiracy to defraud the Commonwealth and had completed serving a sentence of imprisonment therefor. He sought at the hearing of the taxation appeals to give evidence denying that he and one Anderson made an agreement that not all of the cash received from business in which he was involved would be declared by an entity which conducted the business. The trial judge stated a case for the Full Court. It was agreed by counsel that such a denial contradicted one of the matters of fact upon which the conviction was based. The report does not make clear how it was that this issue was identified as one which must have been decided adversely to the applicant by the jury. The question stated for the opinion of the Full Court was "whether it is open to the applicant (the taxpayer) to give such evidence in the appeals before this Court". Beaumont J, at 40, concluded that the question should be answered in the negative, for the applicant's purpose, he inferred, was to set his conviction at nought. Lockhart J on the other hand drew no such inference. He concluded, at 32, that "In the present case, it is clear that the applicant has a genuine interest in challenging the assessments issued against him". He went on:

"It is important to emphasise that the conviction of the

applicant is not a necessary integer in the tax appeals.

Indeed, it seems to me to be a wholly irrelevant matter to

the determination of the issues in those appeals.

What the applicant seeks to do in the tax appeals, as I

understand it, is to deny an agreement between himself and

Mr Anderson to the effect that not all of the cash received

from the conduct of various businesses in which they were

involved would be declared for income tax purposes. This

is an assertion of fact which is relevant to the tax

appeals; and I can see no good reason why he cannot lead

evidence to that effect if he wishes. The respondent may

lead evidence to the contrary and in the result the primary

judge can determine the facts. But the court cannot reach

or express a view that the applicant was wrongly convicted

of the offence of conspiring to defraud the Commonwealth.

The processes of and respect for the criminal law would not

be undermined by the applicant leading evidence of the kind

which he seeks to lead. The position would be different if

this evidence was lead for the purpose of impugning the

applicant's conviction or the fairness of his trial."

"I see no element of abuse of process in the taxation

appeals. The taxpayer is merely exercising his statutory

right of appeal and, indeed, it is in the public interest

that he should be permitted to do so untrammelled by his

conviction for conspiracy to defraud the Commonwealth."

23. I am of opinion that if in collateral proceedings the outcome which is sought by a defeated litigant in previous proceedings is a finding unequivocally inconsistent with that made in those proceedings, then in the absence of exceptional circumstances such as the existence of fresh evidence, this must undermine the processes of and respect for the criminal law. As I have said, this is what the successful outcome of the appellant's proceedings will entail. The court has already determined in a trial of the appellant that the supposed will of Mr Dakin is a forgery. The court is now being asked to declare that document to be Mr Dakin's true last will and testament and to admit it to probate. The two findings are mutually contradictory. If fresh evidence existed it would not be contrary to public policy nor bring the law into disrepute to let the appellant prosecute his claim, even though the conviction would remain as a matter of record, for it would be unjust to deny him the opportunity to pursue a civil claim to which such evidence might show him to be entitled. In those circumstances the apparent contradiction is explicable and may stand without exciting public ridicule, just as a finding of guilt in one conspirator may yet stand alongside the acquittal of his co-conspirator for lack of admissible evidence against the latter (cf R v Darby [1982] HCA 32; (1982) 148 CLR 668) or as a finding, in the days of matrimonial fault, that the respondent committed adultery with the co-respondent might stand although the court was unable to find on evidence admissible against him that the co-respondent had committed adultery with the respondent.

24. In Mickelberg (supra) the consensus of Burt CJ and Smith J, although they advocated different dispositions of the appeal, was that, absent any fresh evidence, it would be an abuse of the court's process for the Mickelbergs to deny facts implicitly established by their convictions, or at least to assert as facts propositions directly negatived by the finding of guilt on the various charges in the indictment. In Saffron v Federal Commissioner of Taxation (supra) the ultimate finding was the liability of the taxpayer for the tax assessed by the Commissioner. That finding would not have involved on its face any contradiction of the facts of the conspiracy found proved in the criminal court. The nature of the agreement between the taxpayer and his business partner was a peripheral evidentiary matter the resolution of which did not involve such a challenge to the finding of the criminal court as to undermine public confidence. Again, in Commissioner of Australian Federal Police v Hatfield [1992] FCA 43; (1992) 106 ALR 335 a person convicted of drug offences was permitted, in subsequent proceedings seeking recovery of the proceeds of illegal trafficking, to dispute the quantum of the drugs the subject of his plea of guilty notwithstanding that the judge passing sentence had, after taking evidence, made certain findings upon which the Commissioner relied as to the amounts involved. That, too, involved no inconsistency on the face of the record. In that case Olney J said at 350:

"... the defendant should not be inhibited in leading any

evidence he desires to adduce which may be relevant to the

issues that arise in this proceeding. Unlike the

plaintiffs in Hunter v Chief Constable (supra), he has not

initiated these proceedings. He has simply adopted the

stance that the applicant must prove his case in the court

upon proper evidence."

25. Kneipp J in Lamari v Lamari (1988) Qd R 144 dismissed a summons to strike out a defence to an action for assault where the defendant had previously been convicted of causing the plaintiff grievous bodily harm. Although holding that it could not be said that all the issues of the civil case had been determined by the jury's verdict and that this was sufficient reason to dismiss the summons, his Honour held in addition that to dismiss an action as an abuse of the process of the court if a party seeks therein to litigate issues which have been determined against him in previous proceedings between him and a different party "would be to impose an estoppel, in a different guise, otherwise than as between the same parties." (at 144) He held that the defendant was not defending the proceedings merely for the purpose of re-opening issues previously determined against him but for the purpose of resisting the plaintiff's claim for damages and that he was entitled to do this.

26. In Soare v Ashley [1955] VicLawRp 71; (1955) VLR 438 the plaintiff sought damages for assault and battery alleging that she had been raped by the defendant. The defendant denied the allegation and the plaintiff pleaded that he was estopped from denying the fact by reason of his having been convicted thereof in a competent court. Herring CJ held that the conviction did not operate by way of estoppel so as to be conclusive not only of the fact that the defendant was convicted, but also of the fact that he did commit the rape of which he was found guilty. The question whether the defence amounted to an abuse of the process of the court was not argued.

27. There are obiter statements to the effect that "a judgment of conviction or acquittal in criminal cases does not, in subsequent civil proceedings, ordinarily preclude the convicted person from setting up his innocence or any other person from endeavouring to show that he was guilty" (per Starke J in Davis v Gell [1924] HCA 56; (1924) 35 CLR 275 at 296, a case involving malicious prosecution which is very much a category of its own). Castrique v Imrie (1869) LR 4 HL 414 at 434 is often cited as authority for the proposition that:

"A judgment in an English court is not conclusive as to

anything but the point decided, and therefore a judgment of

conviction on an indictment for forging a bill of exchange,

though conclusive as to the prisoner being a convicted

felon, is not only not conclusive, but is not even

admissible evidence of the forgery in an action on the

bill, though the conviction must have proceeded on the

ground that the bill was forged."

28. Blackburn J, the author of these words and of the illustration given, does not make clear whether he is speaking of an action on the bill to which the convicted forger is a party. If the forger was not a party to the action, his conviction would have been res inter alios acta and could not have operated to the detriment of a litigant in another action.

29. The fact that an acquittal does not prevent relitigation of the same issue in a civil case has been recognised (Helton v Allen [1940] HCA 20; (1940) 63 CLR 691) and results in no inconsistency of finding for an acquittal is not the equivalent of a finding of innocence (see also Kosanovic v Sarapuu [1962] VicRp 47; (1962) VR 321).

30. While there are cases which suggest that a convicted person may still defend his position in subsequent litigation on the basis that he did not commit the crime, that proposition has its critics. Lord Denning MR in Barclay's Bank Ltd v Cole (1967) 2 QB 738 was trenchant in his criticism of such a course which he said (at 743) was "made possible by the unfortunate decision of this Court in Hollington v Hewthorn and Co" (supra), and he was no less critical in McIlkenny v Chief Constable (supra) at 318 where he referred with apparent approval to the United States decision of Eagle, Star and British Dominions Insurance Co v Heller (1927) 140 SE 314, a case in which an arsonist sued on the fire policy in respect of the property he had destroyed and the Court of Appeal of Virginia held his conviction conclusive evidence that he had committed the crime.

31. In none of the cases I have cited which may be said to suggest that a conviction is not conclusive of the facts necessarily constituting the crime, has the convicted person borne the onus of proving facts inconsistent with his conviction. They have all been cases where his opponent's case has been dependent upon the truth of the facts underlying the conviction and the convicted person has either put him to proof thereof or actively disputed their truth. I have found no authority where a court has countenanced a convicted person setting up a case which can only succeed if he affirmatively establishes the existence of facts which a court of competent jurisdiction has already expressly found not to exist. Nothing in my view is more calculated, in the absence of fresh evidence or other exception, to bring the administration of justice into disrepute. The maintenance of such an action is an abuse of the process of the court and such an action should be struck out. The appellant's present action is of that character and, absent the exception, was in my opinion rightly struck out, as was the action of Reichel v Magrath (supra) where the plaintiff, to succeed, had to establish that he held the benefice which, in the earlier action against the Bishop of Oxford, the court held had become void by virtue of the Bishop's acceptance of Reichel's resignation.

32. I cannot accept the argument advanced by the appellant that to treat a conviction as conclusive in circumstances such as the instant case could have the effect of interfering with the fair conduct of the prior criminal trial or impeding the right to silence of the person accused. I would not dispute that the ramifications so far as subsequent proceedings are concerned of not fully challenging particular parts of the prosecution case may affect the strategy adopted by the defence at a criminal trial. A person charged with motor manslaughter of a passenger may see his best strategy in relying on an alibi or asserting that the deceased was the driver rather than disputing the acts of criminal negligence alleged against him. But the risk that in doing so unsuccessfully he may be precluded from disputing those acts or their character in a subsequent civil case against him or in one claiming damages for negligent driving by the deceased does not, in my opinion, impinge upon his right to silence nor amount to any unfairness. It is no more unfair than that the prospect of a prosecution for perjury if he gives false evidence may dissuade him from giving any evidence at all or that a potential corroborative witness may have such a lengthy record of prior convictions that the accused deems it expedient not to call him lest his credit be thereby destroyed. The accused remains free to adopt whatever course he thinks is in his own best interest having regard to the possible ramifications of any such choice. So long as he has had full opportunity of contesting the decision in the court by which it was made there can be no unfairness or curtailment of his rights.

33. In my opinion the grounds of appeal which complain of error in law on the part of the learned trial judge in holding that the maintenance of the appellant's action was an abuse of process have not been made out.

34. The remaining grounds of appeal are as follows:

"4 The Learned Trial Judge erred in law in holding that in

order to avoid the application of the principle in Hunter's

case the Plaintiff must be able to adduce evidence which

constitutes fresh evidence within the meaning of either

Ladd and Marshall 1954 1 WLR 1491 or Phosphate Sewage

Company Limited V Molleson 1879 4 App Cas 801 irrespective

of its cogency.

5 The Learned Trial Judge erred in law when he held that

the evidence of Miss Nicholas and/or Mr Heazlewood (sic),

though it may have been sufficient to cast reasonable doubt

as to the Plaintiff's guilt at his trial, did not

constitute evidence sufficient to avoid the application of

the principle in Hunter's case."

35. The learned trial judge said in the course of his reasons:

"It has been recognised in Hunter, that as with

applications for a new trial, circumstances may exist which

will justify a court in refraining from striking out

subsequent civil proceedings. Whether these prerequisites

are as stated in Phosphate Sewage Co Ltd v Molleson (1879)

4 App Cas 801 (which was preferred by both Goff LJ and Lord

Diplock in Hunter) or the slightly less onerous

requirements stated by the Court of Appeal in Ladd v

Marshall [1954] EWCA Civ 1; (1954) 1 WLR 1489, may have to be decided in an

appropriate case. I do not see any necessity for making

such a choice in this case.

For the purpose of avoiding the application of the Hunter

principle and showing that upon the trial of the present

action upon its merits, a different outcome may be

anticipated or at least viewed as a possibility, the

plaintiff called oral evidence from Miss Janine Nicholas

and Mr Hazelwood, both of whom were vigorously

cross-examined by counsel for the defendant. As I

indicated prior to reserving my decision, I am unable to

say that either of these witnesses is unworthy of belief.

Neither of them was manifestly a liar. Whether or not they

are actually telling the truth as to their involvement in

the relevant events, can only be resolved, if at all, after

hearing the whole of the case upon its merits, that is,

after hearing all of the evidence germane to the disputed

issues adduced by both parties. Suffice it to say that for

present purposes, although the evidence they gave to me is

not free of doubt in some important respects, I cannot say

that it was manifestly untruthful."

36. In Phosphate Sewage Co Ltd v Molleson (supra) Lord Cairns LC, posing the test with respect to fresh evidence in the context of estoppel, said at 814:

"As I understand the law with regard to res judicata, it is not the

case, and it would be intolerable if it were the case, that a party

who has been unsuccessful in a litigation can be allowed to re-open

that litigation merely by saying, that since the former litigation

there is another fact going exactly in the same direction with the

facts stated before, leading up to the same relief which I asked for

before, but it being in addition to the facts which I have mentioned,

it ought now to be allowed to be the foundation of a new litigation,

and I should be allowed to commence a new litigation merely upon the

allegation of this additional fact. My Lords, the only way in which

that could possibly be admitted would be if the litigant were prepared

to say, I will shew you that this is a fact which entirely changes the

aspect of the case, and I will shew you further that it was not, and

could not by reasonable diligence have been, ascertained by me

before."

37. In Ladd v Marshall (supra) Denning LJ, as he then was, expressed it in this less onerous way:

"To justify the reception of fresh evidence or a new trial,

three conditions must be fulfilled: first, it must be shown

that the evidence could not have been obtained with

reasonable diligence for use at the trial; secondly, the

evidence must be such that, if given, it would probably

have an important influence on the result of the case,

though it need not be decisive; thirdly, the evidence must

be such as is presumably to be believed, or in other

words, it must be apparently credible, though it need not

be incontrovertible."

38. The grounds of appeal do not claim that the learned trial judge erred in holding that the evidence now available and not hitherto called failed to satisfy either test. Rather the claim is that neither test is appropriate in a case based on abuse of process if the new evidence is apparently credible and may have been sufficient to induce in the minds of the jury a reasonable doubt as to the plaintiff's guilt. These criteria clearly fall short of those laid down in either of the two cases cited. The submission is not supported by authority and is contrary to the authority of Hunter v The Chief Constable and the views expressed by Burt CJ in Mickelberg. True those tests were laid down for the purposes of determining the necessary criteria to be satisfied before the same civil cause may be relitigated on appeal by way of rehearing or on a new trial. Different rules apply in the criminal jurisdiction where the Court of Criminal Appeal has wide powers of correcting miscarriages of justice and if "by reason of new evidence accepted by it though it may not be fresh evidence, the court is either satisfied of innocence or entertains such a doubt that a verdict of guilty cannot stand, the fact that the trial itself has been fair will not prevent the court upon that evidence quashing the conviction" (per Barwick CJ in Ratten v R [1974] HCA 35; (1974) 131 CLR 510 at 517-518). Nevertheless, as Dawson J said in Giannarelli v Wraith (supra) at 595, in respect of a conviction, "if the decision of a court is wrong, the appeal process is the means by which it should be corrected". The appellant having not chosen on the hearing of the appeal against his conviction to raise a challenge to it on the ground of the availability of credible and cogent evidence, although not "fresh", cannot in these proceedings avoid the application of the principles by which an abuse of the court's process is determined by asserting that there is no threshold test for the admission of evidence not hitherto called or that the test is of some lower standard than that laid down by the House of Lords in Hunter v The Chief Constable (supra).

39. In my opinion, none of the grounds of appeal is made out and I would dismiss it.

UNDERWOOD J The appellant was charged with one count of conspiracy, one count of forgery and one count of uttering. The alleged conspiracy was that the appellant agreed with his daughter and another to falsely represent that a document bearing the date 24 April 1984 was the validly executed last will and testament of one Lesley John Dakin who died on 2 May 1989. The document purported to appoint Norman Walter Knott executor of the estate of the deceased and the appellant the sole beneficiary. The Crown case on the second and third counts respectively was that the appellant forged this document and subsequently uttered it. The value of the estate of the late Lesley John Dakin was recently estimated to be between $500,000 and $750,000.

2. On these three counts the appellant was tried at Launceston in February 1988. By direction of the learned trial judge, the appellant was acquitted of the count of forgery but convicted on the counts of conspiracy and uttering. The appellant successfully appealed against those convictions and a new trial was ordered. At that trial, the appellant was again convicted of conspiracy and four counts of uttering (a fresh indictment was filed upon arraignment following the first successful appeal breaking down the original single count of uttering into four counts). The appellant was sentenced to a term of imprisonment. An appeal to the Court of Criminal Appeal against the convictions on the second trial was dismissed.

3. An essential element in each of the crimes of which the appellant was convicted was that the document dated 24 April 1984 and purporting to be the last will and testament of Lesley John Dakin was a forgery and that the appellant knew it was a forgery.

4. If the document is not the last will and testament of the deceased, his nephew, the respondent to this appeal, inherits the whole of the estate either on an intestacy or as sole beneficiary of a will made some years before the death of the deceased. The present whereabouts of that document is unknown. Within months of Mr Dakin's death, the respondent applied for a grant of letters of administration claiming to be the sole beneficiary on an intestacy and entered a caveat to prevent probate of the impugned will being granted to Mr Knott. Two years before the appellant's first trial, Mr Knott commenced proceedings in this Court to prove in solemn form the document later found by the jury to be a forgery. The respondent joined issue. Mr Knott died and, by order of the Master made on 2 June 1988 (after the first convictions and before determination of the first appeal), the appellant was made plaintiff in the proceedings in the place of the late Mr Knott. Shortly prior to the action being listed for trial, the defence was amended to plead (inter alia) that maintenance of the proceedings was an abuse of the process of the court. Issue was joined and an order made that this question be tried as a preliminary issue. Wright J held that the proceedings were an abuse of the process of the court and ordered that the plaintiff's action be struck out. This appeal is brought against that order.

5. The learned trial judge concluded that the proceedings were an abuse of the court's process because the issue which the appellant sought to litigate had already been determined adversely to him in the criminal proceedings and there were no exceptional circumstances justifying the court from not striking out the civil proceedings.

6. It has long been recognized that a superior court of record has an inherent power to prevent an abuse of its process. In Metropolitan Bank v Pooley (1885) 10 App Cas 210 Lord Blackburn said at 220-221:

"At common law originally the judgment of the Court was

always obtained either by a demurrer or any other

proceeding which upon the record gave judgment, or an issue

was taken of fact and a verdict found, and then a judgment

was given upon the record. But from early times (I rather

think, though I have not looked at it enough to say, from

the earliest times) the Court had inherently in its power

the right to see that its process was not abused by a

proceeding without reasonable grounds, so as to be

vexatious and harassing - the Court had a right to protect

itself against such an abuse, but that was not done upon

demurrer, or upon the record, or upon the verdict of a jury

or evidence taken in that way, but it was done by the Court

informing its conscience upon affidavits, and by a summary

order to stay the action which was brought under such

circumstances as to be an abuse of the process of the

Court; and in a proper case they did stay the action ..."

7. In Connelly v DPP (1964) AC 1254 Lord Morris of Borth-y-Gest said at 1301:

"There can be no doubt that a court which is endowed with a

particular jurisdiction has powers which are necessary to

enable it to act effectively within such jurisdiction. I

would regard them as powers which are inherent in its

jurisdiction. A court must enjoy such powers in order to

enforce its rules of practice and to suppress any abuses of

its process and to defeat any attempted thwarting of its

process."

See also Lawrance v Norreys (1890) 15 App Cas 210 at 219; Young v Holloway and Anor (1895) P 87 (a case involving an unsuccessful attempt to stay proceedings for an order revoking probate which was granted after a trial of issues). The inherent power includes a power to punish persons who are in contempt of court and, in the case of proceedings, to stay or dismiss those proceedings if they are an abuse of the process of the court. See R v Weisz ex parte Hector MacDonald Ltd (1951) 2 KB 611. That such inherent jurisdiction exists in Australia is beyond doubt. See Clyne v NSW Bar Association [1960] HCA 40; (1960) 104 CLR 186; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75; Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23; Williams v Spautz [1992] HCA 34; (1992) 66 ALJR 585 at 588. This inherent jurisdiction, writes I H Jacob in The Inherent Jurisdiction of the Court (1970) 23 Current Legal Problems 23 at 23, "may be invoked in an apparently inexhaustible variety of circumstances and may be exercised in different ways." See for example, Glasgow Navigation Co v Iron Ore Co (1910) AC 293; Huxley v Wootten (1912) 29 TLR 132; Williams v Earl Beauchamp (1886) 11 P 59; Davey v Bentinck (1893) 1 QB 185 and Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; (1982) AC 529 (a case to which detailed reference will be made later). An attempt to define the nature of this elusive jurisdiction was made by I H Jacob at 51:

"In this light, the inherent jurisdiction of the court may

be defined as being the reserve of all fund of powers, a

residual source of powers, which the court may draw upon as

necessary whenever it is just or equitable to do so, and in

particular to ensure the observance of the due process of

law, to prevent improper vexation or oppression, to do

justice between the parties and to secure a fair trial

between them."

8. With respect to the adoption of that definition see Halsburys Laws of England (4th edn) Vol 37 par14; Taylor v Attorney-General (1975) 2 NZLR 675 at 680.

9. The power of a court to prevent an abuse of its process is one to be exercised only in the clearest of cases. "It should be very sparingly exercised and only in very exceptional cases." Per Winfield, Present Law of Abuse of Legal Procedure, 238. In Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713 Dixon J (as he then was) said at 720:

"The inherent jurisdiction of the Court to stay an action

as vexatious is to be exercised only when the action is

clearly without foundation and when to allow it to proceed

would impose a hardship upon the defendants which may be

avoided without risk of injustice to the plaintiff. The

principle, in general paramount, that a claim honestly made

by a suitor for judicial relief must be investigated and

decided in the manner appointed, must be observed. A

litigant is entitled to submit for determination according

to the due process of procedure a claim which he believes

he can establish, although its foundations may in fact be

slender. It is only when to permit it to proceed would

amount to an abuse of jurisdiction, or would clearly

inflict unnecessary injustice upon the opposite party that

a suit should be stopped."

10. With respect to abuse of process, I H Jacob (42) observes that it is "not easy to classify the manifold and diverse circumstances of abuse of process which may be dealt with by the summary powers of the court under its inherent jurisdiction." He tentatively proffered the suggestion that abuse of process may fall within the following categories (43):

"(a) proceedings which involve a deception on the court, or

are fictitious or constitute a mere sham;

(b) proceedings where the process of the court is not being

fairly or honestly used but is employed for some ulterior

or improper purpose or in an improper way;

(c) proceedings which are manifestly groundless or without

foundation or which serve no useful purpose;

(d) multiple or successive proceedings which cause or are

likely to cause improper vexation or oppression."

11. The process of this Court may be abused in many and varied ways. See for example, Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 (the exercise of the inherent power to stay criminal proceedings on an ex officio indictment where there had been no committal proceedings); Jago v District Court (NSW) (supra), (a case of delay in the prosecution of proceedings) Moore v Inglis (1976) 9 ALR 509 (stay of proceedings in one court because proceedings in another court involved the same issues).

12. There are no definitive rules prescribing the boundaries of an abuse of process. Each case depends upon its own circumstances. Where the court's function as a court of law, obliged to do justice between litigants, is being misused in some way, the court will exercise its inherent power and stop that misuse.

13. Upon the hearing of the preliminary issue it was agreed that the will the appellant was seeking to prove was the same document as that alleged to be a forgery in the criminal proceedings. A certificate of conviction was tendered in evidence to prove the appellant's convictions in the Criminal Court. With respect to this certificate the learned trial judge said (2):

"A certificate of conviction tendered by the defendant

formally proved the plaintiff's convictions in the Criminal

Court. The plaintiff, however, does not concede that the

certificate of conviction has evidentiary value or is

admissible for any other purposes if the action goes to

trial on the merits. The plaintiff relies upon Hollington

v F Hewthorn and Co (1943) KB 587 for this submission. If

the matter proceeds to trial it may be necessary to

consider the validity of Hollington v Hewthorn (supra) in

Tasmania. (His Honour then referred to cases in which

Hollington's case had been criticized) There is however no

need to embark upon this interesting question at the

present juncture."

14. The learned trial judge relied principally upon Hunter v Chief Constable of the West Midlands Police (supra). In that case six men were convicted on 15 August 1975 of twenty-one counts of murder and sentenced to life imprisonment. They soon became known as the "Birmingham Bombers" or the "Birmingham Six". Confessions alleged to have been made by each of the six were crucial to the Crown case. At the trial, each accused denied that the confessions were voluntary and alleged that they were a product of assaults by the police. A voir dire was conducted by the trial judge to determine the admissibility of the confessional material. It appeared on the voir dire that the six accused had been assaulted, but the police officers denied they were the perpetrators of the assaults, the inference being that they were committed by prison officers. The trial judge was satisfied that the police officers "were giving honest and accurate evidence" and ruled the confessions admissible.

15. There followed a trial of fourteen prison officers on charges of assault. Each prison officer made a statement from the dock to the effect "it was not me" and all were acquitted. The "Birmingham Six", claiming to have fresh evidence, commenced four actions in 1977. In each case, the defendant was the Home Office (the prison officers) and various named Chief Constables. The cause of action in each case was assault and the remedy sought was damages. Interlocutory applications were taken out by the defendant police officers seeking orders that the plaintiffs' actions be struck out. The bases of the applications were the inherent jurisdiction of the court and the Rules of Court (UK) O18, r19. The applications were dismissed and there was an appeal to the Court of Appeal.

16. In the proceedings, liability was admitted by the Home Office on behalf of the prison officers leaving damages as the only issue. The police officers denied liability and claimed that the issue of whether or not they had assaulted the plaintiffs had already been determined by the trial judge on the voir dire and subsequently by the jury on the trial. In a powerful judgment in the Court of Appeal (1980) 1 QB 293 at 318, Lord Denning cited US authority (Eagle, Star and British Dominions Insurance Co v Heller (1927) 140 SE 314), described Hollington v F Hewthorn and Co (1943) 1 KB 587 as a "set back" and "wrongly decided", and allowed the appeal on the basis of issue estoppel, or estoppel per rem judicatum. His Lordship held (319) that the estoppel can only be avoided if the judgment was obtained by fraud or collusion or new facts have been subsequently discovered.

17. In the light of subsequent events, the concluding words of his Lordship's judgment now sound more than a little ironic:

"This case shows what a civilized country we are. Here are

six men who have been proved guilty of the most wicked

murder of twenty-one innocent people. They have no money.

Yet the state lavished large sums on their defence. They

were convicted of murder and sentenced to imprisonment for

life. In their evidence they were guilty of gross perjury.

Yet the state continued to lavish large sums on them - in

their actions against the police. It is high time that it

stopped. It is really an attempt to set aside the

convictions by a side wind. It is a scandal that it should

be allowed to continue. The issue was fully tried out and

decided by Bridge J at the 'trial within a trial'. His

finding on that issue is decisive unless there are

circumstances which make it fair or just to re-open it. I

see no such circumstances." (323-324)

18. Goff LJ pointed out that, in the light of the Criminal Evidence Act 1968, s11, which provides that a certificate of conviction shall be evidence, but not conclusive evidence of the commission of the crime, a reconsideration of Hollington v Hewthorn (supra) did not arise. His Lordship expressly disagreed with Lord Denning on the question of issue estoppel on the basis that such estoppel was confined to the parties and their privies. His Lordship also expressed doubts about the finality of the ruling on the voir dire and the subsequent verdict of the jury on the issue of assaults by the police. Goff LJ rested his opinion squarely on the civil proceedings being an abuse of the process of the court "in view of what happened at the criminal trial". Referring to Reichel v Magrath 14 App Cas 665 and Stephenson v Garnett (1898) 1 KB 677, his Lordship said that in view of the trial judge's direction to the jury, the issue in the civil proceedings against the police had been decided once on the voir dire by the trial judge and once by the verdict of the jury and it would be a scandal to the administration of justice if, by a different form of proceedings, it were possible to litigate the issue again.

19. It may be noted that his Lordship said nothing about the need to establish that the plaintiff had an improper purpose for bringing the civil litigation.

20. The remaining member of the court, Sir George Baker, also based his decision on estoppel but on grounds different from those expressed by Lord Denning. Unlike Goff LJ, Sir George Baker relied upon Hollington v Hewthorn (supra) and the 1968 statutory provision which permitted evidence of the conviction to be given in proof of the commission of the offence "unless the contrary is proved as denying the operation of any issue estopped arising with respect to the conviction." In what might be thought by some to be a surprising development, Sir George Baker held that the ruling on the voir dire (not touched by the statute or the decision in Hollington v Hewthorn) operated to estop the plaintiffs from litigating the issue of assault by the police. His Lordship held that the ruling on the voir dire was a final one. With respect to the principle of res inter alios acta, Sir George Baker held that on the voir dire "the reality" was that the plaintiffs and the police officers were "adversaries" and that the defendant Chief Constables were their privies. This stretch of reasoning is not easy to follow for it could not be suggested for a moment that the individual police officers who gave evidence on the voir dire had the right or capacity to control the conduct of the proceedings on the voir dire in the same way as could a party.

21. Sir George Baker went on to add in the alternative that in any event, he would strike the actions out as an abuse of the process in the absence of fresh evidence having been discovered after conviction. He said at 347:

"It is an abuse for a party to relitigate a question or

issue which has already been decided against him even

though the other party cannot satisfy the strict rules of

res judicata or, here, the requirements of issue estoppel."

22. The case went on appeal to the House of Lords [1981] UKHL 13; (1982 AC 529). Lord Diplock, with whose judgment the other Law Lords agreed, said at 540 that if the plaintiffs' action was an abuse of the process of the court, whether or not the conduct also constituted an estoppel was a matter of "semantics". Counsel for the police were not called upon to address the House. His Lordship introduced for the first time in these protracted proceedings the notion that the purpose of the proceedings was a relevant consideration on the question whether they were an abuse of the process of the court. His Lordship said at 541:

"The abuse of process which the instant case exemplifies is

the initiation of proceedings in a court of justice for the

purpose of mounting a collateral attack upon a final

decision against the intending plaintiff which has been

made by another court of competent jurisdiction in previous

proceedings in which the intending plaintiff had a full

opportunity of contesting the decision in the court by

which it was made."

23. His Lordship then referred to a failure to refer to alleged fresh evidence on appeal from the conviction. He then went on to say:

"It would call for a degree of credulity too extreme to be

expected even from judicial members of your Lordships'

House to fail to recognise that the dominant purpose of

this action and the parallel actions brought by the other

Birmingham Bombers so far as they are brought against the

police, has not been to recover damages but is brought in

an endeavour to establish, long after the event when

memories have faded and witnesses other than the Birmingham

Bombers themselves may be difficult to trace, that the

confessions on the evidence on which they were convicted

were induced by police violence, with a view to putting

pressure on the Home Secretary to release them from the

life sentences that they are otherwise likely to continue

to serve for many years to come."

24. His Lordship said it was not surprising that no reported case could be found in which the facts presented a precise parallel, observed that a collateral attack on the final decision of a court of competent jurisdiction may take a variety of forms (541) and referred, as Goff LJ did in the Court of Appeal, to Stephenson v Garnett (supra) and Reichel v Magrath (supra). His Lordship then said that it would exacerbate the public scandal to the administration of justice if:

"Hunter, by changing the form of the proceedings to a civil

action, were to be permitted to set up in that action the

same case that must have been decided against him not only

once but twice, even though technically it was only the

first of those decisions that eventually qualified as the

final decision against him by a competent court upon the

very question that he seeks now to raise."

25. With respect to the rationale underpinning Lord Diplock's opinion, the learned trial judge considered that motivation or purpose for bringing the proceedings was of little significance (4). He concluded that Hunter was authority for the proposition that civil proceedings which sought to impugn an issue decided in a criminal court were an abuse of process regardless of the plaintiff's purpose in bringing those proceedings. He said that "the principle to be derived from Hunter's case clearly applies to prevent the re-agitation in civil litigation of an issue necessarily decided adversely to the intending plaintiff in a prior criminal trial where he has been found guilty by a properly constituted jury." (5)

26. With respect to his Honour's view, it is my understanding that, notwithstanding Lord Diplock's reference to Stephenson v Garnett and Reichel v McGrath (neither of which cases concerned the effect of a criminal verdict on subsequent civil proceedings), the basis of his Lordship's opinion rested on the fact that the real purpose of the proceedings was to attack a final decision in a court of competent jurisdiction and not obtain the relief therein claimed (damages). My understanding is shared by Davies, Lockhart and Beaumont JJ in Saffron v FCT [1991] FCA 363; (1991) 102 ALR 19 at 23, 29 and 37 respectively, and by Kennedy J in Mickelberg and Anor v The Director of Perth Mint (1986) WAR 365 at 382.

27. Williams v Spautz [1992] HCA 34; (1992) 66 ALJR 585 (decided after the decision was given in this case) was another case concerning the institution and maintenance of proceedings for an improper purpose. The High Court held that where the predominant purpose of instituting and maintaining proceedings was "not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed" (591) there was an abuse of the process. In my respectful opinion, the learned trial judge misconstrued Hunter's case and thereby fell into error when he concluded that re-agitation of the issue of the validity of the purported will was an abuse of the process of the court regardless of the appellant's purpose in maintaining the civil proceedings. It seems to me that little assistance is gained from Hunter, Williams and other cases in which the abuse arose out of the institution and maintenance of proceedings for an improper purpose. In this case there is no finding of fact concerning the appellant's purpose in maintaining the proceedings. Presumably then, it was and is to obtain the order sought. Success will bring the appellant considerable wealth.

28. It is unnecessary to consider the other grounds of appeal. I would allow this appeal and set aside the order that the appellant's action be struck out.

29. However, before leaving this matter, I wish to say something about Hollington v Hewthorn for it seems to me that sooner or later in this litigation this decision will have to be considered. The Full Court of Western Australia was in the same position in Mickelberg's case (supra).

30. If the decision of Hollington v Hewthorn is authority in this State, the certificate of conviction is not evidence of the commission of any crime nor that the will is a forgery. See R v Triffett a decision of mine, unreported, A87/1992. Apart from admissions against interest which may have been made by the appellant, the common law of evidence is that what was said and done in the criminal trial is irrelevant in the civil proceedings. In Barclay's Bank Ltd v Cole (1967) 2 QB 738 Cole was convicted of robbing Barclay's Bank and sentenced to fifteen years' imprisonment. His appeal was rejected. The bank sued to recover the money stolen. By his defence Cole denied that he had wrongfully entered the bank and taken the money. With respect to this, Lord Denning MR said (obiter dicta) (743):

"So Cole denies the robbery and is determined to have it

tried again. He wishes to canvass again his guilt or

innocence, but this time before a jury in a civil case.

There is too much of this sort of thing going on: Hinds,

Goody, Rondel and now Cole. It is made possible by the

unfortunate decision of this Court in Hollington v Hewthorn

and Co where it was held that a conviction in a Criminal

Court cannot be used as evidence, not even prima facie

evidence, in a civil case. I hope it will soon be altered.

See what it means here. In order to be able to bring this

civil action Barclay's Bank had first to make sure that

Cole was prosecuted in the Criminal Court: see Smith v

Selwyn (1914) 3 KB 98. Now after seeing him duly

prosecuted and convicted, they are asked to prove his

guilty all over again in this civil suit."

31. Lord Denning's hope that the law would soon be altered was fulfilled by the passage of the Civil Evidence Act 1968 which provided in effect, that in a civil proceeding proof that a person had been convicted of a criminal offence was evidence that he had committed that offence.

32. In Mickelberg the two appellants were convicted in a court of criminal jurisdiction of defrauding the Director of the Perth Mint of a quantity of gold bullion. The Director instituted civil proceedings for the return of the bullion or damages. In their joint defence the appellants denied that they stole or ever had the bullion in their possession. An application was made to strike out those denials in the defence on the ground (inter alia) that they constituted an abuse of process. The authority of Hollington v Hewthorn (supra) in the State of Western Australia was central to the decision of the Full Court. The Chief Justice said at 371:

"But it is, I think, necessary to decide whether Hollington

v Hewthorn should be followed in this State so as to enable

a decision to be reached upon the other ground upon which

the paragraphs in the appellants' defence were struck out,

it being that 'they constitute an abuse of the process of

the Court or the pleas therein are frivolous or vexatious'.

That ground is based upon the convictions and unless the

convictions can be proved in the civil action it would

appear to me that the ground, without more, would have

nothing to sustain it."

33. The position is precisely the same in this case. On the hearing of the preliminary issue a certificate of convictions was tendered in evidence. The learned trial judge did not articulate its evidentiary value. He did say (2), "the plaintiff, however, does not concede that the certificate of conviction has evidentiary value or is admissible for any other purposes if the action goes to trial on the merits." His Honour considered there was no need "at the present juncture" to consider whether Hollington v Hewthorn (supra) is good law in this State. With respect to his Honour it seems to me that this is a threshold question. If Hollington v Hewthorn is good law in this State, evidence that the appellant was convicted of crimes, an essential ingredient in which was that the will was a forgery, cannot be given in the civil proceedings, and, regardless of purpose, maintenance of such proceedings could not therefore be an abuse of the process of the court.

34. However, the authority of Hollington v Hewthorn in this State was not raised on this appeal and accordingly, this is not the occasion to consider it.

35. Since writing the foregoing I have read in draft the reasons of the Chief Justice. I agree with his view that the proceedings before the learned trial judge were misconceived in that a determination of a question pursuant to the provisions of the Rules of Court, O39, r8 is a determination on the trial of the action and therefore, one to be made on a final determination of all relevant questions of fact. Had this been recognised, the question of the validity of Hollington v Hewthorn in this State would have been raised. Like the Chief Justice, I agree that the only issue before the learned trial judge was that which the parties agreed should be before him viz that the abuse of process question be tried as a preliminary issue, and consequently, the order made and which I would set aside, is the order striking out the action made on the trial of that preliminary issue.