DISCUSSION
25 There is no doubt that the Court has an inherent jurisdiction to stay an examination if it is an abuse of process. An abuse of the public examination machinery will occur where the applicant for the examination summons is seeking to achieve some purpose foreign to that which the legislature intended.
26 It is the examinees who bear the onus of demonstrating that the predominant purpose of the examinations is improper. That evidentiary onus is a heavy one.
27 The comments of Gardiner AsJ in DW Marketing usefully summarise the position:
[42] An abuse of process of the examination provisions will occur where the applicant for the examination summons is seeking to achieve some purpose foreign to that which the legislature provided the examination machinery: New Zealand Steel (Australia) Pty Ltd v Burton. The onus of satisfying the Court that there is an abuse of process is on the party alleging it and that party must establish that the improper purpose is the predominant one: Williams v Spautz.
[…]
[44] In Re Qintex Group Management Services Pty Ltd (In liq.), the Queensland Court of Appeal (McPherson JA, Pincus JA and Derrington J) observed:
For all that, there may be some cases in which it can be seen that liquidators are acting improperly in seeking to examine someone under the provisions of the Corporations Law. Examinations under the statute are capable of being or becoming oppressive if their real purpose is simply to exert pressure by inflicting costs, or causing undue inconvenience or embarrassment to the defendant. There may also be other ways in which they can operate harshly. Conducting a dress-rehearsal of cross- examination may conceivably be another instance, although in practice it probably serves mainly to alert a witness to the questions he may expect to be asked at trial and so enable him to anticipate them.
28 The High Court of Australia in Victoria International Container Terminal Limited v Lunt (2021) 388 ALR 376; [2021] HCA 11 made the following observations generally about abuse of process:
[18] The fundamental responsibility of a court is to do justice between the parties to the matters that come before it. In the performance of that function, the doing of justice may require the court to protect the due administration of justice by protecting itself from abuse of its processes. The power to stay, or summarily dismiss, proceedings because one party has abused the processes of the court is concerned to prevent injustice, and that power is properly exercised where the conduct of the moving party is such that the abuse of process on its part may prevent or stultify the fair and just determination of a matter.
[19] In Strickland (a pseudonym) v Director of Public Prosecutions (Cth), Gageler J explained that the concern which engages a court's power to order a stay of proceedings is the need to protect the integrity of its own processes. His Honour said:
"The power of a superior court to stay its own proceedings as an abuse of process is a power to protect the integrity of its own processes. The power is in that limited respect and to that limited extent a power to 'safeguard the administration of justice'."
[…]
[23] While the thrust of the appellant's argument in this Court shifted away from an argument about illegitimacy of purpose, it is desirable to be clear that the Full Court was right to conclude that, while Mr Lunt may have been motivated to bring the current proceedings out of loyalty to the CFMMEU or to avoid a possible forensic disadvantage to the CFMMEU, that does not mean that the proceedings were brought for an improper purpose. In this context the distinction between motive and purpose is of crucial importance. In Williams v Spautz, the plurality (Mason CJ, Dawson, Toohey and McHugh JJ) said:
"To say that a purpose of a litigant in bringing proceedings which is not within the scope of the proceedings constitutes, without more, an abuse of process might unduly expand the concept. The purpose of a litigant may be to bring the proceedings to a successful conclusion so as to take advantage of an entitlement or benefit which the law gives the litigant in that event.
Thus, to take an example mentioned in argument, an alderman prosecutes another alderman who is a political opponent for failure to disclose a relevant pecuniary interest when voting to approve a contract, intending to secure the opponent's conviction so that he or she will then be disqualified from office as an alderman by reason of that conviction, pursuant to local government legislation regulating the holding of such offices. The ultimate purpose of bringing about disqualification is not within the scope of the criminal process instituted by the prosecutor. But the immediate purpose of the prosecutor is within that scope. And the existence of the ultimate purpose cannot constitute an abuse of process when that purpose is to bring about a result for which the law provides in the event that the proceedings terminate in the prosecutor's favour.
It is otherwise when the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers."
(Footnotes omitted.)
29 In UBS AG v Tyne (2018) 265 CLR 77, Gordon J stated:
[126] The power to grant a stay of proceedings exists to enable a court to "protect itself from abuse of its process thereby safeguarding the administration of justice". The doctrine of abuse of process is not limited to defined and closed categories of conduct. It is capable of being applied to "any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute". If a proceeding would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party, the proceeding should be stayed or dismissed. Or, put another way, where "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", a proceeding should be stayed or dismissed.
[…]
[136] The onus of satisfying the court that a proceeding is an abuse of process is "a heavy one". Although the power to grant a permanent stay is one to be exercised "only in the most exceptional circumstances", the exercise of the power can be justified by considerations which may include finality, fairness, and the maintenance of public confidence in the administration of justice.
(Footnotes omitted.)
30 It seems to me that there is simply no persuasive evidence (certainly not satisfying the "heavy" evidentiary onus on the examinees) to show that the continuation of the examinations is an abuse of process.
31 I do not accept that I should draw the inference that the examinees ask me to draw as set out in their submissions at [24] above. These matters may go to indicate the motivation for Shangri-La to continue with the examinations. Yet a remaining relevant and legitimate purpose of these examinations is to protect the interests of all creditors. Each of the matters relied upon by the examinees (individually and cumulatively) do not suggest that Shangri-La has the predominant purpose of just inflicting costs, or causing inconvenience or embarrassment to the examinees. We can speculate as to motive, but this is to be distinguished from purpose.
32 I do not see the existence of the recent Supreme Court proceedings as in themselves a reason to stay the examination, although the matters examined upon may impact on this litigation. There is no evidence of oppression, or abuse, in relation to that proceeding, to indicate a basis for considering an improper purpose on Shangri-La's part. Further, the recent Supreme Court proceedings may not proceed to a hearing or judgment, and so there may be some utility in the examinations continuing to their appropriate conclusion.
33 Then, there is no evidence the examinees have any financial or resource difficulties in the conduct of the examination, so as to treat them as vulnerable financially to substantial harm. There is no evidence of Shangri-La having a purpose of taking advantage of any such vulnerability in any event.
34 I am persuaded that Shangri-La's abiding or most influential purpose is a legitimate purpose as it was when it commenced the examinations even though it may no longer be a creditor.
35 I consider that the examinations should continue, and to stay them permanently would be a remedy without foundation, where the examinations can properly be conducted fairly and justly for the purpose of assisting all the creditors.
36 It is to be recalled the Court and the Registrar conducting the examinations has power to limit the scope of the examinations if necessary: see s 596(1)(a) of the Act. As Beach J said in Shangri-La Construction at [105]:
Further, the examinees contend that the grounds and material on which Shangri-La persuaded ASIC to grant it "eligible applicant" status are different from the way Shangri-La is now seeking to conduct the examinations. But so be it. As I have already indicated, the scope of the examinations is not confined to the four corners of the material or basis put to ASIC. Any such disparity may be permitted in the questioning. After all, ASIC's authorisation was an administrative decision concerning the grant of "eligible applicant" status. It did not in terms confine the boundaries of the examinations themselves. But of course, if it is clear that questions are not being asked for a proper purpose, which proper purpose would be to further the interests of GVE Hampton, its contributories or creditors including Shangri-La, then the Registrar may at the time of the examinations limit or disallow the questioning if it is solely collateral to the proper purposes for which the summonses were issued.
37 I did consider during the hearing the possibility of staying the examinations temporarily but subject to certain conditions, mainly relating to the particular position of Shangri-La and the progress of the recent Supreme Court proceedings. However, once one reaches the conclusion that Shangri-La does have a legitimate purpose in continuing with the examinations, to even temporarily stay the examinations is to act without any proper foundation in the exercise of a judicial discretion.