52 In Williams v Spautz[30] the High Court upheld a stay of prosecutions in circumstances where the abuse of process was constituted by bringing the proceedings for a collateral purpose namely not to prosecute them to a conclusion but to use them to obtain some advantage unrelated to the purpose of the proceedings.
53 I think that it was common ground, and in any event the cases establish, that abuse of process in this context comprehends any proceeding that is being used in a way that is manifestly unjust, oppressive or unfair to a party to the proceeding, or would otherwise bring the administration of justice into disrepute among right-thinking people. The categories of such cases are not closed although they include cases where the proceeding is foredoomed to fail or is being used for an improper purpose. In the case of disciplinary proceedings, it is necessary for a court in considering whether there is any abuse of process to take into account the important factor that a disciplinary proceeding is protective of the public.
54 It seems to me that some of the considerations relied upon by the plaintiff cannot, of themselves, constitute an abuse of process as so understood. One such consideration is the burden imposed upon the plaintiff by a further disciplinary hearing in addition to the already lengthy, onerous and costly proceedings before the Tribunal to date. That possible consequence ought to have been foreseeable by the parties as a result of the procedure in which they acquiesced. The Tribunal has before it a proper charge, or at least a charge capable of reframing as a proper charge arguably without any prejudice to the plaintiff by such amendment. The Tribunal is obliged to deal with that charge. The opinion of a Judge of this Court as to whether any useful purpose is served, in all the circumstances, by proceeding with the remaining charge cannot determine the question of abuse of process given that, apart from anything else, the seriousness of the charge can only be assessed by the Tribunal after hearing and considering all of the evidence. At first blush it would appear that, even assuming (contrary to the plaintiff's position) that a misleading statement was made to the Federal Court as alleged, such statement was never going to mislead the Court because the opposing party would immediately point (as it did) to the alleged true position. That would seem to be why counsel for the Bar accepted before me that the plaintiff's conduct might well be characterised as "bizarre" or "stupid".[31] Thus, again at first blush, it might appear that little useful purpose is served by proceeding with charge 21 even if it is a distinct charge, given the lengthy proceeding that has already occurred resulting in a reprimand of the plaintiff for her unsatisfactory conduct in the Federal Magistrates Court proceeding. It seems strongly arguable that the purpose of protecting the public has already been achieved. The foregoing considerations of themselves do not, however, it seems to me, establish a case of oppression or injustice or tend to bring the administration of justice into disrepute.
55 It seems to me that the question whether there is any abuse of process involved turns upon a careful analysis of what the Bar did at, and said to, the Tribunal on 21 August 2006. Mr Scerri for the Bar said to the Tribunal on that occasion that the Bar "doesn't wish to seek a finding of misconduct" and then attempted to amend charge 21 to an unsatisfactory conduct charge. In the course of the application to so amend charge 21 and in answer to a question from the Vice-President, Mr Scerri said that "[the] Bar does not propose to proceed with the charge of misconduct under charge 21" and that "[if] the charge is not amended and we lead no evidence the position is the same as with the other charges" to which latter statement the Vice-President said "Dismissed" and Mr Scerri replied "Yes exactly ...". Later on, Mr Scerri said that if the proposed amendment was unacceptable "we'll press on with the charge on the basis that our case is unsatisfactory conduct relying upon s.161". After the Tribunal's ruling refusing the amendment, Mr Scerri said that the Bar would be saying, on charge 21, that the evidence could support a finding of unsatisfactory conduct.
56 It is apparent from what Mr Scerri said to the Tribunal that the statements made on behalf of the Bar were not simply subjective statements of opinion or belief as to the possible result of a hearing of charge 21. The Bar was taking a definite position that it was not proceeding with the charge of misconduct and would be pressing only for a finding of unsatisfactory conduct. Indeed Mr Scerri canvassed the prospect that the Bar would lead no evidence if the amendment were refused. However when the amendment was refused he said that the Bar would proceed with charge 21 but "our case is unsatisfactory conduct".
57 Accordingly the position of the Bar before the Tribunal was, before the hearing of charge 21 had commenced, that the Bar had and would advance no case of misconduct against the plaintiff. Yet that is the very nature of the charge that the Bar was seeking to prosecute (putting aside the defectiveness issue).
58 In my opinion the Bar's stance before the Tribunal makes all the difference in this case. It would bring the administration of justice into disrepute to permit the Bar to prosecute a charge of misconduct while at the same time saying the opposite, namely, that it was not advancing a case of misconduct or seeking a finding of misconduct. It is an entirely different position to that which might have arisen had the charge been proceeded with and, after all the evidence was in, the Bar conceded that the evidence supported only a lesser charge. The use of a misconduct charge simply to obtain a finding of a lesser charge when the case for misconduct is completely disavowed before the hearing commences is, I think, a misuse of the statutory procedure and, indeed, as the plaintiff submitted, contrary to the spirit of the Act, given the requirement that the Bar be satisfied when bringing the charge that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of misconduct. If the Bar has reached the view, as it has, that a case of misconduct cannot be made out and it does not seek to do so, such a charge ought not as a matter of justice and fairness be heard.
59 In these circumstances, the considerations referred to earlier[32] which I said would not of themselves give rise to a case of abuse of process do support the conclusion that the proceeding in this case is being used in a manner that is both manifestly oppressive and unjust to the plaintiff and also serves no useful purpose as regards protection of the public or, for that matter, the disciplining of the plaintiff.
60 For the foregoing reasons it will be ordered, on the grounds of abuse of process, that the further prosecution and hearing of charge 21 before the Tribunal be permanently stayed.