Abuse of process

An abuse of process is the commencement of legal proceedings, either criminal or civil, against another person maliciously and without proper cause. Dating back to the early Anglo-Saxon period in Great Britain, an abuse of process was largely based on false accusations being the subject of Court proceedings and was punishable, among other things, by the loss of the accuser’s tongue. In Australia today the concept of an abuse of process has developed significantly and the barbarism of 5th century Europe fortunately no longer has its place in the judicial sphere.

In Ashby v Commonwealth (No 4) [2012] FCA 1411, Rares J referred to examples of proceedings being an abuse of process if “they [the proceedings] are seriously or unfairly burdensome, prejudicial or damaging, or productive of serious and unjustified trouble and harassment.” In Walton v Gardiner (1993) 177 CLR 378, Mason CJ and Deane and Dawson JJ relying on Lord Diplock in Hunter and v Chief Constable of the West Midlands Police (1982) AC 529, referred to the Court having “the inherent power…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 a litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”.

The Courts in Australia have an inherent power to prevent an abuse of process and they can stay or dismiss proceedings or strike out pleadings. Rule 13.4 of the Uniform Civil Procedure Rules 2005 now codifies the power of the Court to dismiss frivolous or vexatious proceedings if the proceedings are an abuse of process.

An abuse of process can take many forms, however the categories of what it amounts to are not closed (Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75). Some examples include: the attempt to re-litigate issues that have already been determined in previous proceedings (Stokes (by a tutor) v McCourt [2013] NSWSC 1014), an attempt to litigate proceedings which could have/should have been litigated in previous proceedings (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589) and the bringing of proceedings for the purpose of causing significant public, reputational and political damage (Ashby v Commonwealth (No 4) [2012] FCA 1411).

In the context of company law, an abuse of process may occur in a specific circumstance. If a contributory (i.e. a shareholder who is liable to contribute to a company’s debts in a liquidation if their shares are not fully paid) applies to have a company wound up as a strategic manoeuvre to help an applicant in other litigation against the company, this may amount to an abuse of process on the basis that the contributory is attempting to gain an improper advantage (Technomin Australia NL v Kollack Group Ltd (1991) 9 ACLC 5110).