PRACTICE AND PROCEDURE – abuse of process – unconditional discontinuance proceedings in different court involving same substratum of fact – whether abuse of process operates against person not party to earlier proceeding – where earlier proceeding not decided upon merits – opportunity to make claims in earlier proceedings – oppression or unfairness
- I have read the reasons prepared by Jagot and Farrell JJ. I am grateful to their Honours for their close examination of the cases and the facts. In particular, I note the following propositions:
· abuse of process may arise in 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;
· a court has inherent power to prevent misuse of its procedures in a way which, although not inconsistent with the literal application of its procedural rules, would nonetheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute amongst right‑thinking people; and
· making a claim or raising an issue which was made, or raised and determined in earlier proceedings, or which ought reasonably to have been so raised for determination in those earlier proceedings, may constitute an abuse of process, even where the party seeking to make the claim or to raise the issue in the later proceedings was neither a party to the earlier proceedings, nor the privy of a party.
- Any doubts as to the correctness of the third proposition were resolved by the High Court in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at  and  where the majority said:
25 Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in 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. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
26 Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.