68 This case, however, is not about the punishment of the appellant for his conduct; these are not contempt proceedings, although nothing we have said in this judgment should be taken as precluding a charge of contempt being brought or initiated. This case is about whether or not Marks J was correct in permanently staying the proceedings on the grounds of an abuse of process in that "a fair trial of these proceedings has been compromised by the conduct of the [appellant]" and whether his Honour erred, as contended for in the respondents' notice of contention, in not finding the appellant's conduct was so oppressive, improper and a misuse of the forensic process as to warrant a conclusion that he had perpetrated such injustice or unfairness that he should be denied a hearing of the merits of his claim.
69 As the respondents submitted, the Court's jurisdiction and power to permanently stay proceedings for abuse of process was not raised as an issue in the appeal. Accordingly, it was submitted, in considering whether his Honour fell into error in his determination at first instance, the Full Bench should have regard to the following accepted principles, namely:
(a) The jurisdiction "to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the Court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness": Walton v Gardiner (1992-1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 392-393.
(b) In Walton v Gardiner (1992-1993) 177 CLR 378 the majority of the High Court stated that the grounds upon which a permanent stay may be granted are not limited to cases where the proceedings have been brought for an improper purpose or where there is no possibility of the Court affording the affected party a fair hearing. The power may be exercised if the Court is satisfied that the continuation of proceedings would involve an unacceptable risk of injustice. The question whether proceedings should be permanently stayed for abuse of process is to be determined by a weighing process involving a balancing of a variety of considerations (at 395-396).
(c) Similarly, in Rogers v The Queen (1994) 181 CLR 251, McHugh J stated (at [16]) in general terms that "abuses of procedure usually fall into one of three categories:
(i) the court's procedures are invoked for an illegitimate purpose;
(ii) the use of the court's procedures is unjustifiably oppressive to one of the parties; or
(iii) the use of the court's procedures would bring the administration of justice into disrepute."
(d) The interference with a witness has the potential to seriously undermine the administration of justice. In addition to affecting extant proceedings, such conduct has the pervasive effect of tending to interfere with the administration of justice as a continuing process: Gribbin v Fingleton [2002] QSC 390 (27 November 2002) per Mackenzie J at [46] and cases cited therein.
(e) The power to grant a permanent stay of proceedings is a discretionary power…the expression 'discretionary power' generally signifies the power exercisable by reference to considerations no one of which an no combination of which is necessarily determinative of the result. In other words, it is a power which involves a considerable latitude of individual choice of a conclusion … notwithstanding this latitude, a discretionary power is necessarily confined by general principle. It is also confined by the matters that may be taken into account and by the matters, if any, which must be taken into account in its exercise: see Jago v District Court (NSW) (1989) 168 CLR 23 at 75-76.
(f) The nature of the power to grant appeal in a stay of proceedings itself reveals and important principle which confines its exercise. The power is in essence a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima face right in the person invoking that jurisdiction to have it exercised … thus, the power is one that is readily seen as exercisable, whether in civil or criminal proceedings, only in exceptional cases or "sparingly and with the utmost caution": Jago at 76.
(g) The limited scope of the power to grant a permanent stay necessarily directs an inquiry whether there are other means by which the defect attending the proceedings can be eliminated or remedied and the purpose directs attention to legal propriety of the process or proceeding as distinct from any broad consideration of the general merits of the case: Jago at 77.
70 It was further submitted by Mr Kimber SC for the respondents:
The test on an application for a permanent stay of proceedings based on an abuse of process is not that there must be some actual 'insurmountable prejudice' …which prevents litigation from proceeding. The question of whether the conduct complained of undermined the prospect of a fair trial remained in issue …
The court has an inherent power, inter alia , to prevent misuse of its process where, for example, such misuse would be manifestly unfair to the other party or would otherwise bring the administration of justice into disrepute among right-thinking people: Hunter v Chief Constable of West Midlands Police [1982] AC 529 per Diplock LJ at p 536C-D.
The proper test to be applied in these circumstances when considering the Court's exercise of its implied power to prevent an abuse of process, is whether there is conduct which:
(i) "is such that any judgment in favour of the litigant would have to be regarded as unsafe"; or
(ii) would "render any further proceedings unsatisfactory and prevent the Court from doing justice".
See also Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167 per Chadwick LJ at [54] and see at [58] (English Court of Appeal); as cited with approval in British American Tobacco Australia Services Limited v Cowell [2002] VSCA 197 (6 December 2002) [150] - [152] and [158]-[160].
71 It may be accepted that the power of a court "to control its own process and proceedings is such that its exercise is not restricted to defined or closed categories, but may be exercised as and when the administration of justice demands": Jago per Gaudron J at (1989) 168 CLR 23 at 58; Walton v Gardiner [1992-1993] 177 CLR 378 at 394. Mr West QC, for the appellant, submitted, however, in relation to the principles relied upon by the respondents:
Certainly one cannot get from Jago or Walton the notion that "bad behaviour" on the part of a litigant will or should result in the termination of his proceedings otherwise implemented in conformity with the rules of court and not suffering from any of the well known and accepted conditions which would brand the proceedings as vexatious or oppressive.
This is not to say that bad behaviour, and repeated bad behaviour, will go unpunished or unrestrained. But it is a colossal step in legal principle to conclude that headstrong, even threatening or intimidating behaviour in a litigant towards an opposing witness will or shall result in the first order of the court being to terminate the party's proceedings and deny a trial on the merits. Were such conduct to underpin charges of contempt, the Court would proceed to examine the matter on the criminal standard of proof and if guilt is proven, impose an appropriate penalty. But that did not happen here.
72 Moreover, Mr West contended, the power to grant a permanent stay (in essence, a power to refuse to exercise jurisdiction) was exercisable only in exceptional cases or sparingly and with the utmost caution. As Gaudron J held in Jago at 76-77, the exercise of the power:
[N]ecessarily directs an inquiry whether there are other means by which the defect attending the proceedings can be eliminated or remedied. And the purpose directs attention to the legal propriety of the process or proceeding as distinct from any broad combination of the general merits of the case.
73 We agree with the inference in Mr West's submission that the current state of Australian law as stated in Jago does not hold that "headstrong, even threatening or intimidating behaviour in a litigant towards an opposing witness will or shall result in the first order of the court being to terminate the party's proceedings and deny a trial on the merits." Mr Kimber, however, relied on Arrow Nominees Inc and Anor v Blackledge and Ors [2000] 2 BCLC 167 as cited with approval in British American Tobacco Australia Services Limited v Cowell [2002] VSCA 197 (6 December 2002) to contend that the conduct of a party to proceedings per se may establish the necessary basis for the grant of a permanent stay, even if a fair trial may be otherwise possible.
74 In Arrow Nominees it was held that fraudulent conduct had made a fair trial impossible. However, at [54] Chadwick LJ stated:
54. It would be open to this Court to allow the appeal against the judge's refusal to strike out the petition on that ground alone. But, for my part, I would allow that appeal on a second, and additional, ground. I adopt, as a general principle, the observations of Mr Justice Millett in Logicrose Ltd v Southend United Football Club Limited (The Times, 5 March 1988) that the object of the rules as to discovery is to secure the fair trial of the action in accordance with the due process of the Court; and that, accordingly, a party is not to be deprived of his right to a proper trial as a penalty for disobedience of those rules - even if such disobedience amounts to contempt for or defiance of the court - if that object is ultimately secured, by (for example) the late production of a document which has been withheld. But where a litigant's conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled - indeed, I would hold bound - to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him. The reason, as it seems to me, is that it is no part of the court's function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke.
75 Ward LJ agreed with Chadwick LJ but he added there was an error on the part of the trial judge because he did not give sufficient weight to the Civil Procedure Rules which provided "The court may strike out a statement of case if it appears to the court ... (c) that there has been a failure to comply with a rule, practice direction or court order" and that the trial judge did not give sufficient weight to the "overriding objective" provided by the Rules for enabling the courts to deal with cases justly. Roch LJ agreed with the judgments of Chadwick and Ward LLJ.
76 It does not seem to us that Arrow Nominees provides support for the proposition that threatening or intimidating behaviour by an applicant towards the respondent or respondent's witness will necessarily result in an order of the court terminating the party's proceedings and denying a trial on the merits if the prospect of a fair trial remains open. Arrow Nominees, in our opinion, is not inconsistent with current Australian law nor does it add another dimension unknown in Australian law. If the fairness of the trial is placed in jeopardy, or if to proceed to trial would give rise to a substantial risk of injustice or unfairness, or if an abuse of the process of the court rendered further proceedings unsatisfactory and prevented the court from doing justice, then consistent with Walton v Gardiner and Jago if the defect attending the proceedings cannot be eliminated or remedied, it would be open to the court to permanently stay the proceedings because the continuation of proceedings would involve an unacceptable risk of injustice or unfairness.
77 The respondents also placed reliance on Williams v Spautz (1991-1992) 174 CLR 509, contending that by his conduct the appellant had undermined the prospect of a fair trial even though such a conclusion was not a necessary prerequisite for a permanent stay of proceedings. But that authority must be seen in the context in which it was considered. What was said by the High Court (Mason CJ, Dawson, Toohey and McHugh JJ) at 519 was:
If a permanent stay is sought to prevent the accused from being subjected to an unfair trial, it is only natural that the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed. In other words, the court must be satisfied that there are no other available means, such as directions to be given by the trial judge, of bringing about a fair trial. Jago was such a case. Consequently, the judgments in that case gave emphasis to the necessity that the court should satisfy itself upon this point before granting the relief sought.
If, however, a stay is sought to stop a prosecution which has been instituted and maintained for an improper purpose, it by no means follows that it is necessary, before granting a stay, for the court to satisfy itself in such a case that an unfair trial will ensue unless the prosecution is stopped.
78 Spautz was concerned with improper purpose. That is, Dr Spautz had instituted criminal proceedings against a number of university officers for the purpose of exerting pressure to have himself reinstated in his employment as a lecturer. The High Court (Mason CJ, Dawson, Toohey and McHugh JJ) held that a stay may be granted where, even if the trial is fair, the proceedings had been brought for an improper purpose and hence were an abuse of process.
79 In the present case, it is readily apparent that the appellant was seeking, amongst other things (including the embarrassment of some individuals in a tit for tat exchange), to bring pressure on the respondents to settle his claim without the matter going to trial. There was no suggestion that the unfair contract proceedings were brought merely to extract money from the respondents with no intention to proceed to trial; to that extent the appellant's conduct was not an abuse of the Court's process.
80 Whilst the appellant's methods were quite disgraceful and may have provided or may provide the basis for various individuals initiating criminal and/or civil proceedings against the appellant, the main question we have to ask ourselves in this appeal is whether the appellant's conduct was such as to jeopardise the prospects of a fair trial of the unfair contract proceedings.
81 Our consideration, though, of the judgment at first instance is not confined to whether a fair trial was possible. We consider there is substance in the respondents' contentions that the grounds upon which a permanent stay may be granted are not limited to cases where the proceedings have been brought for an improper purpose or where there is no possibility of the Court affording the affected party a fair hearing. The power may be exercised if the Court is satisfied that the continuation of proceedings would involve an unacceptable risk of injustice or unfairness: Walton v Gardiner.