53 The circumstances in which the power to stay permanently criminal proceedings may be exercised was considered extensively in Jago v. District Court of New South Wales & Ors (1989) 168 CLR 23 in which the High Court was not prepared to stay long-delayed criminal proceedings. In Walton v. Gardiner (1993) 177 CLR 378, which related to medical disciplinary proceedings, the High Court upheld a stay of disciplinary proceedings on the ground of delay. To some extent there was diversity in the views expressed in Jago, and the majority judgment in Walton v. Gardiner provides a resolution which must command great respect. At 392-395 Mason CJ, Deane and Dawson JJ, who formed the majority, said:
The inherent jurisdiction of a superior court 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. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail [ See, e.g., Metropolitan Bank v Pooley (1885) 10 App Cas 210, at 220-221; General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125, at 128-130. ]. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them [ See, generally, Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538] . Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings [ See, e.g., Reichel v Magrath (1889) 14 App Cas 665, at 668; Connelly v DPP [1964] AC 1254, at 1361-1362] . The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [ [1982] AC 529, at 536.] as "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people".
In Jago v District Court of New South Wales[ (1989) 168 CLR 23] , at least three of the five members of the Court clearly rejected "the narrower views that a court's power to protect itself from an abuse of process in criminal proceedings "is limited to traditional notions of abuse of process"2[ ibid., per Mason CJ at 28] . Mason CJ considered that a court, "whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves", possess the necessary power to prevent its processes being employed in a manner which gives rise to unfairness2 [ ibid., at 28] . His Honour quoted, with approval, the following remarks of Richardson J of the New Zealand Court of Appeal in Moevao v Department of Labour[ [1980] 1 NZLR 464, at 481] :
"public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike And the due administration of justice is a continuous process, not confined to the determination of the particular case It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice. "
Deane J expressed a similar view in his judgment in Jago[ (1989) 168 CLR, at 58]
"The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed. "
In her judgment in Jago [ ibid., at 74] , Gaudron J stressed that the power of a court "to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands." Her Honour added the comment [ ibid.] "that, at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand." Subsequently in her judgment [ ibid., at 77] , her Honour made clear that, subject to some refinements which she identified, that comment was also appropriate to be adopted in relation to criminal proceedings.
It should be mentioned that there was considerable discussion in the course of argument about the effect of some comments in the judgment of the majority of the Court in Williams v Spautz [ (1992) 174 CLR 509, at 519-520 ]. When those comments are properly understood in context, however, there is nothing in them which supports the proposition that a permanent stay of proceedings can only be ordered on the ground of either improper purpose or no possibility of a fair hearing. Indeed, careful examination of them discloses that they lend some support to a denial of that proposition [ ibid., at 520, see, in particular, the approving reference to the judgment of Richardson J. in Moevao v Department of Labour [1980] 1 NZLR 464, at 482] .
54 At 395 - 396 their Honours referred to a balancing process and said:
As was pointed out in Jago[ See, in particular, (1989) 168 CLR, per Mason CJ at pp.30-34; per Deane J. at 59-61; per Toohey J. at 72; per Gaudron J. at 76-78. ] the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners. As we read their Honours' judgments, the members of the Court of Appeal all utilized such an adapted weighing process in the present case.
55 The principles governing stays in criminal prosecutions were further considered in the judgment of the High Court in Subramaniam v. The Queen (2004) 79 ALJR 116 at 122-123 [24-27].
56 The observations in Walton v Gardiner confirm the availability of the Court's power in civil proceedings, and its availability in cases where there is not, as well as where there is intended abuse of the powers and procedures of the Court. My researches suggest that the use of this power on the basis of delay in instituting proceedings in civil cases must be rare. Norman v Howarth (2003) 180 FLR 1 is an instance. A circumstance which has probably restricted applications for and exercise of the power in civil cases is the availability of statutory time limits for the institution of civil proceedings. Such statutes typically do not operate by conferring authorisation to delay, but simply prevent effectual institution of proceedings, irrespective of merits, after a period determined by the legislature, and they appear to give an authorisation of a kind to allow most of whatever period the statute allows to pass, so long as proceedings are instituted within that period. Observations of McHugh JA in Herron v. McGregor at 253 illustrate the difficulty of concluding that there has been an abuse of process where this apparent authorisation exists. A similar difficulty presents itself in a different context where the Court is asked to dismiss proceedings which have been commenced in due time but have not been conducted in accordance with time scales prescribed by Rules of Court; there has been a strong general reluctance to dismiss proceedings in such circumstances where the statutory time limits have not expired and it remains open to a plaintiff to commence fresh proceedings. See Birkett v. James [1978] AC 297 and Stollznow v. Calvert [1980] 2 NSWLR 749.
57 However I am unable to see any reason in principle why the power should not be exercised in a proper case. The existence of apparent authorisation in a statute of limitation is not in principle a reason why great delay may not be an abuse of process, or a reason why the power of the Court may not be exercised.
58 In the present case the issue in relation to whether the defendants can have a fair trial if the plaintiff's proceedings were allowed to continue was addressed by Hoeben J at [41]: