4379 ING. CATCHWORDS Pleading - Lack of particularity 1n proposed emendment - Declaratory Relief - Amendment seeking declaration that crime committed refused. RAYNER THWAITLS, MAURICE BRAY, BEGTi O'BRIEN, sv ROWLANDS. KATHLEEN JSOBEL INGLIS v. ANDREW JESLTE MOORE, MICNABT EVLA wbet No. G 97 of 1977 Coram: St.dJchn, Brennan and Davies Jd. Sydney NN 10 May 1979 IN THE TEDERAL COURT OF AUSTRALIA) ) PRINCIPAL REGISTRY Appeal No. G97 of 1977 } GENERAL DIVISION ON APPEAL FROM A_ SINGLE JUDGE OF THLE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN : KATHLEEN ISOBLIL INGLIS Appellant (Plaintiff) AND : ANDREW LESLIE MOORE MICHAEL RAYNER THWAITLS MAURICE BRAY ~ BETTY O'BRIEN SYLVIA ROWLANDS Respondents (Defendants) ORDER JUDGES MAKING ORDER St.John, Brennan and Davies JJ. DATE OF ORDER 10th May 1979. WHERE MADE Sydney. THE COURT ORDERS THAT 1. The appeal be dismissed. 2. The appellant pay to the respondents their costs of the appeal to be taxed. IN THE FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY No. G 97 of 1977 GENERAL DIVISION ON APPMAL FROM A _SINGL™ JUDGE OP THE SUDPRGNE COus? OF AIS YRALLaAr CAPITAL. TURRTTORY BETWEEN: KATHLEEN ISOBNL INCLIS Appellant (Plaintiff) AND: ANDPLW LESLTS MOORE MICHAL <aS.0P TRAITS Berry oO! TERN SYLVIA ROWLANDS fed Respondents (Defendants) CORAM: St.Joun, Brennan and Davies JJ. DATE: 10 May 1979 REASCUS TOR JUDINVe St.John J. This 1s an appeal from the order of Smathers J. sitting as a Judge of the Supreme Court of th Australian Capital] Territory, the ultimate effect of which order was to Gismiss an application for amendnent cf a writ of summons by the addition of more defendants and the amendment of a statement of claim by the substitution of a new statemont of claim for that one then on the file. The statement of clajin sought. to be substituted was no less than a sixth attempt to formulate the cause of action upon which the appellant sought to rely, she appearing in person before the -2- Supreme Court and likewise before this Court on appeal. The whole of the extraordinary history of this pleading need not bo exhaustively dealt with but it is necessary to recount its immediate prior hastory in the High Court of Australia where a statement of claim against the same Gefendants as in the Supreme Court action was held by Mason J. to be vexatious and oppressive upon the grounds that proceedings between the same parties had already been anstituted ion the Supreme Ccurt of the Australian Capital Territory and any relief to which she was entitled in the High Court was available in the Supreme Court. That finding was undisturbed on appeal to the full High Court where the appeliant also appeared in person. The reasons for judgment given by Mason J. recounted an undertaking offered by counsel for the defendants in those proccedings which the learned Judge cxpressed in these terms: "The defendants in this action have undertaken that they will make no objection to such amend- ments being made in the Supreme Court action as would cnapie the plaintiff to seek an these procecdinys the relief which she soeks in this Court, cven to the cxtent ot amending as to parries, provided that the parties are necessary and proper parties and that anendments sought to be made conform to the reqairerents of proper pleading and the Rules of Cour'. Even so it as for the Supreme Court to decide whether further amend- ments to the pleadings in that Court should now be made." (ibid. at p. 592) In the statement of claim before the High Court declarations that certain actions of the deferdants constitured con- splracires contrury to s. 66 of tho Cranes Act 1414, or alternatively centrary to the comion lay were sought. ~3- The appellant submitted before the learned Supreme Court Judge and this Court that the effect of the undertaking was, in substance, that no objection could be taken to such claims for declaratory relief and that the full Hagh Court had, at least implicitly, approved such claims being included. As to those submissions, it 1s apparent from the transcript of argument before the High Court that at least Jacobs J. expressed concern that such a declaratory order could be made. The transcript attributes to Jacobs J., when speaking about such an order, the following words: "Tt would undermine the whole system of British justice." Reverting to the undertaking, 1t is clear that Mason J. did not regard the undertaking as one which precluded the taking of jurisdictional or other points. That learned Judge said this in his reasons for Jjudginent: "Putting aside the inherent deficiencies an her claim to relicf, deficiencies which would work against her case as much in this Court as in the Supreme Court, there is no reason why the plaintitf could not, or cannot, seek relief by way of declaration and injunction in addition ta, or in substitation of, damaccs in the action in the Suyeeme Court. Any difficulty which the plaintiz: may encounter 1n securing aepnronriate amondreits to the proceedings in the Suprore Court will stem, not from jurisdictional limitaticns, but from theo manner in which the plaintiff hes presented her case to date and from the insufficiency of the matters upon which (ik mye to ground the relief which she claims." ibid. This latter statoment andicates quite cleariy that Mason J. was not deciding whether the declarations referred to were within the jurisdiction of the Supreme Court. 22/4 -4- At the conclusion of the hearing before the Supreme Court, the learned Judge made the following order: "The motion herein stands dismissed unless before the 15th January 1978 the plaintiff deliver to the crown solicitor an amended statement of claim signed by counsel on the Role (sic.) of barristexs and solicitors of the A.C.T. in active practace and an amended writ of summons herein and it is further ordered that the question of costs of the motion be reserved." Tho learned Supreme Court Judge did not give any reasons for judgment. However, ecxamination of the transcript of argument before that Judge indicates quite clearly what issues he had to decide. Farstly, although the proposed statement of claim was some 47 foolscap pages in length, contained 16? paragraphs and sought some 30 orders or declarations, counsel who appeared in the Supreme Court courageoisly unformed the learned Judge that in its form 1t was "pierdahle" but objected to the content of paracraph 156. Hc submitted, and I agree, that paragraph was 1n scandalous terms. Tt read: "The said instructicn by Moore referred to in paragraph 153 above 1s a cloak for the corrupt practices of Moore." I refer to defendants' counsel's covurcuge because of the lack of particularity in the pleading generally and the liberal sprinkling of such words as "unlawfully, maliciously, illegally" in relation to the alleged actavities of the defrend- ants in that document. Counsel for the dcfendants took objection to the claim for declarations that the actrons of the defendants constituted criminal conspiracies whether against s. 86 of the Crames Act 1944 or contrary to the common law. He subnitted that such declarations were -5- outside the ambit of declaratory relief. With this sub- mission I wholehcartcdly agree. The most recent authority on the ambit of the remedy of declaratory relief 1s Sankey v. Whitlam, 53 A.L.J.R. 11, where the full Hagh Court held that 1t was proper to entertain an application for a declaration that an offence charged in committal proceedings before a magistrate, and during the currency of those proceedings, was an offence unkuown to the law. Gibbs A.c.d. outlined the icading author- aties on the ambit of declaratory relief without disapproving any of the instances in which such an application wac entor- tained. Examination of those authorities docs not reveal a single instance in which, in civil proceedings, the declaration sought has b2en one that certain actions of the defendants constituted a crime after finding facts in those proceedings. Those cases 1n which the criminal law has bocn the subject of a declaration are those in which there was no contest ag to the facts to be considered. In Munnich v. Godstone Rural Dietract Council, (1966) 1 W.L-R. 427 (a case quoted without disapproval by Gibbs A.C.J.) the validity of a notice delivored in purported pursuance of planning legislation was held to be the proper subject of an appli- cation for a declaratory order even though criminal proceedings Upon a notice in the same form had resulted in conviction upon a plea of guilty. Therein, Lord Denning M-R. approved the following statement of Lord Devlin in Connelly v. Director_ef Public Proscentions(1960)A.C. 260 where his Lordship said this: Mr -6- "It is absolutely necessary that issues of fact that are substantially the same should, whenever practicable, be tried by the same tribunal and at the same time... . WNo system of justice can guarantce that every judgment is right but can and should do its best to ensure that there are no conflicting judgments in the same matters." Salmon L.J. emphasized that the validity of the enforcement notice was a pure point of law and that no real question of fact arose or could have arisen in the proceedings before the magistrates. His Lordship went on: "That to my mind is a most important circumstance. because it makes wholly inapplicable ain the present case that passage in the speech of Lord Daviin in Connelly's case to which the Master of Rolls has referred and with every word of which I respect- fully agree." Whether indictable offences have heen committed 1s the con- cern of the criminal courts and are for trial there. Thre, the accused has certain rights. The litigants are the Crown and the accused. There is no private right ox private legal interest 1n conviction or acquittal other than that of the accused recognized by Law. The whole emphasis in the criminal] jurisdiction 1s one of puhlic concern. Even if I were wrong as to whether oa: not such an applica- tion would be within the ambit of declaratory relief, I am confident that a Court would never exercise its discretion in favour of granting such relicf. What, in effect, would happen af such an application were allowed to procecd woulda be that a defendant in civil] proceedings would ba found to have committed a crime withcut having the various advantages ~--f/7 -7- which are afforded him 1n a criminal trial. To mention some of those advantages there 1s the onus of proof which would not be so stringent in civil proceedings, the com- pellability of witnesses would be different, no committal proceedings would be available to test the strength of the case against him and certain procedural advantages such as the availability of a statement from the dock would be denied him. He could noc apply for a nolle prosequi. The whole concept of a declaration that a crime has been committed being made in civil proccedings is abhorrent. Included in the appeal book (prepared and filed by the appellant) 1s the transcript of her appeal from Mason J. to the full High Court. An interchange between Barwick C.J. and the appellant revealed the appellant's interest on having the declarations referred to made. That anterest was to Place the Attorney-General in a position where he would be forced to prosecute the defendants. Had the point been taken that such a motive amounted to an abuse of the process of the Supreme Court before Smithers J. JT would have dismissed the appeal on that ground. The appellunt's statement to the Chief Justice serves to emphasize the serious consequcnces of deciding that such Geclaraticns are within the ambtt of available declaratory relict. ..-/8 ~8- Further arguments were put on bchalf of the defendants to Smithers J. but it is unnecessary to comment upon them. In so saying, I do not wish to indicate that they had no substance. I would dismiss the appeal with costs. ITeertify tht tnisandthe waey preceding races are a true copy of the Reesons for Ivacnent herein of h1zs Sonour Mr, Justice «i Dela, Associate A thir fn Dated: 10 59 214 IN THE FEDERAL COURT OF AUSTRALIA) } . ) GENERAL DIVISION ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN : KATHLEEN ISOBEL INGLIS Appellant (Plaintiff) AND : ANDRCOW LESLIE MOORE MICHAEL RAYNER THMIAITES MAURICE BRAY BETTY O'BRIEN SYLVIA ROWLANDS Respondents (Defendants CORAM : ST.JOHN, BRENNAN AND DAVIES Jd. the {ctw day of May 1979. BRENNAN AND DAVIES Jd.: This is an appeal from an order made by Smithers 3. sitting as a Judge of the Supreme Court of the Australian Capital Territory. An application was made to him by Mrs. Inglis, the appeliant, who is the plaintiff suing the present respondents in an action in that Court. She sought an order that three further defendants - C.W. Harders the Secretary of the Attorney~Ceneral'ts Department, the Attornoy-Gene.ral, and the Commonwealth of Australia - be added as parties and that she be at liberty to amend her 2/2 Statement of Claim in accordance with a proposed Statement of Claim which she produced. Her application was refused, and the relevant part of the sealed copy of his Honour's order reads: "that the motion herein stand dismissed unless before the 15th day of January, 1978 the plaintiff delivered to the Crown ' Solicitor an amended statement of claim signed by counsel on the Role (sic) of Barristers and Solicitors of the Australian Capital Territory in active practice and an amended writ of summons herein AND IT IS FURTHER ORDERED that the question of costs of the motion be reserved. " As it 1s agreed that no Statement of Claim signed by counsel was delivered by 15 January 1978, the effect of the order 1s that Mrs. Inglis' application was dismissed. She appeals to this Court. We should deal with the appeal as though the order simply dismissed Mrs. Inglis' application. The purpose of the condition as to counsel signing the pleading may be clearly perceived, but we should wish to consider further the propriety of a condition expressed in the terms of the order if anything turned upon it. But nothing does. The institution of the appoal and the provision of security for costs did not effect a stay of his Honour's order (see s.29 Federal Court of Australia Act 1976 and 0.70 r.12(1) of the High Court Rules). The applicatior made to Smithers J. had its origin in an action which Mrs. Inglis had instituted in the Haigh Court of Australia. In that action, which was 2/3 proceeding concurrently with the action in the Supreme Court, Mrs. Inglis sued some of the present respondents together with the three persons whom she applied, unsuccessfully,to join as defendants in her action in the Supreme Court. Mrs. Inglis' High Court action was stayed by the order of Mason J. on the ground that the commencement and continuation of that action was vexatious and oppressive and constituted an abuse of the process of that Court (see 50 A.L.J.R,589). An appeal to the Full Court of the High Court was dismissed. In the course of the proceedings before Mason J, it appears that an undertaking was given by the defendants in the High Court action. Mrs. Inglis (who appears in person to conduct her litigation) conceives her application to join the proposed defendants and to seel; the proposed amended relicf in the Supreme Court to follow upcn, and to call for the honouring of, the undertaking. When Mason d. gave his reasons for staying the High Court action, he referred to the undertaking: "The defendants in this action have undertaken that they will make no objection to such amendments being made in the Supreme Court action as would enable the plaintiff to seek in those proceedings the relief which she seeks in this Court, even to the extent of amending as to parties, provided that the parties are necessary and proper partics and that umendments sought to be mada conform ta the requirements OF prover pieaedin. ana the Rules of Court. Even »o 1t 1s for the Suprene Court to decide whether further amendments to the pleadings an that Court should now be made." 20/4 4, In the course of time, Mrs. Inglis made the application to Smithers J. She submits that the application would, if granted, translate into the Supreme Court action the allegations and claims for relief which she made in the High Court action. It should not be thought that the High Court approved the form of her allegations as sufficrent. Mason J, said: "Putting aside the inherent deficiencies in her claim to relief, deficiencies which would work against her case as much in this Court as in the Supreme Court, there is no reason why the plaintiff could not, or cannot, seck relief by way of declaration and injunction in addition to, or in substitution of, damages in the action in the Supreme Court. Any difficulty which the plaintiff may encounter in securing appropriate amendments to the proceedings in the Supreme Court will stem, not from jurisdictional limitations, but from the manner in which the plaintiff has presented her case to Gate and from the insufficiency of the matters upon which she relies to ground the relief which she claims. " It was, of course, for her to frame the amendments which she wished to make to her Statement of Claim, and to make her application in whatever terms she deemed appropriute; but it was for Smithers J. to decide whether the parties whom she sought to join were necessary and proper parties, and whether the amendments which she sought to make were amendments which it was proper for the Court or a judge to allow. The addition of parties was intended ta be followed by the delivery of a proposed amended Statement of Claim, claiming relief against al] defendants, but 1f£ oe f5 the pleading (as we shall call it) ought not be allowed to stand, there would be no point in joining new parties. The pleading, which runs for 47 pages, contains a farrago of allegations and claims for relief which are so confused and confusing that 1t would be clearly oppressive to require the defendants, present and proposed, to plead to them, The pleading commences by alleging that the Gefendants othex than the Commonwealth of Austraiia 'are persons being sued on behalf of the Commonwealth of Austraizra each in his or her official capacity". Mrs. Inglis told us that this was intended to secure the result that these defendants would not have to pay the damages claimed, and the Commonwealth of Australia would have to pay them, It may be that the allegation 1s intended merely to lay the foundation for a claim against the Commonwealth of Australia that it is vicariously liable for the tortious acts of the other defendants, but that intention does not appear clearly from the pleading. Indeed, the only claim for damages is for a conspiracy to which two of the defendants sued "on behalf of the Commonwealth of Australia" are not alleged to be parties. The pleading then refers to Mrs. Inglis' transfer from one public service position to another in the Tariianientary Library at Parliament House, Canberra. It appears that that transfer is a matter of complaint against the defendant A.L. Moore the Permanent Head of the --/6 Department of the Parliamentary Library, the proposed defendant C.W. Harders the Secretary of the Attorney- General's Department, the defendant M.R. Thwalites the Australian Parliamentary Librarian, the defendant M, Bray the Library Administrative Officer, the ' defendant B. O'Brien a clerical assistant in the Library, the defendant S. Rowlands the secretary and typiste of Mr. Moore, and the Attorney-General. Seven conspiracies among some two or more of these defendants are alleged, only the last of which is to be found in the existing Statement of Claim. It is only in respect of the last conspiracy that damages are claimed in the proposed Statement of Claim. The proposed pleading seeks only declarations in respect of the first six conspiracies which the pleading would, if allowed, introduca into th Supreme Court action, Preceding the allegations of the first six conspiracies, paragraph 17 appears in the pleading: "17. Moore, Harders, Thwaites and Bray have used the provisions of the Act which require the Plaintiff to obey the instructions of Moore and Thwaites to wrongfully require and intimidate the Plaintiff anto accepting under duress the unlawful instructions of Moore for the purpose of injuring the Plaintiff without just cause or excuse and unlawfully injuring the Plaintiff in her employment in order to further each of the six conspiracies respectively referred to below as rollows: (1) an paregraphs 18~45 (2) " " 46-51 (3) u u 52-80 (5) " " 87-127 (6) " " 128-152 --/7 Apart from making 1ts contribution to the pejorative tone of the pleading, this paragraph contributes nothing to an understanding of any facts upon which a claim for relief is based, What Moore, Harders, Thwaites and Bray may have done "to wrongfully require and intimidate the plaintiff" docs not appear, and no claim for relief is founded on conduct so described. £ anne or conse >) One then goes to the allegation iracy, the pleading of which ought to be precise (McKernan v. Fraser (1931) 46 C.L.R.343 at p.364). The first of the conspiracies may be taken as illustrative of the nature of the pleading, though the deficiencies of the various parts of the pleading appear fully only by examining each paragraph in the context of tne entire pleading. Paragraph 18 reads: "18, On the 26th day of October, 1973 Moore, Harders and Thwaites wrongfully and Maliciously combined and conspired amongst themselves to effect the transfer of the Plaintiff from her lormer Office by illegal means in the terms of a minute written by Moore to the Plaintiff dated the 26th October, 1973, set out in paragraph 25 below, for the purpose of injuring the Plaintifr without just cause or excuse and for the purpose of unlawfully injuring the Plaintiff in her employment by the Commonwealth. " The means by which it had allegedly bean agreed to effect Mrs.Inglis' transfer from one position to anothar were said to be illegal, but the pleading docs not state in what the illegality consisted, -.-/8 The alleged overt acts of this conspiracy are introduced by paragraph 20: "20. In pursuance and in furtherance of the said conspiracy Moore, Uarders and Thwaites did the overt acts set out below at paragraphs 21 to 42 inclusive. The Plaintiff repeats the facts and matters contained in the paragraphs 18-to 42 inclusive of this Statement of Claim. " The allegations which follow are liberally sprinkled with assertions that actions were done or omitted "illegally" "improperly" or "deliberatcly", yet the pleading does not intelligibly state the matters which constitute sllegality and impropriety and does not reveal the relevance cf the deliberation, The "1llegal means" which are evidently at the heart of the first conspiracy are not identified. One of the paragraphs setting out what are said to be overt acts of the first conspiracy is paragraph 33: "33. On the lst November, 1973 a protective injunctive proceeding No. S.C,.1028 of 1973 was instituted in the Supreme Courc of the Australian Capital Territory on behalf of the Plaintiff in which Noore and Thyaites were named as defendants. The said proceeding sought an order from the Suprere Court of the Australian Capital Territory for an injunction to restrain the transfer of the Plaintiff from her former Office until such time as the provisions of the Act had been complied with by Moore with respect thereto. " The institution of proceedings by Mrs. Inglis could not constitute an overt act of the first conspiracy. The remaining paragravhs of the allegations which are said to relate to the first conspiracy canvass inter alia the course of this licigation which Mrs. Inglis says she oo /9 started and discontinued. These paragraphs are marked by verbosity and irrelevance. The first conspiracy allegations come to an end in paragraph 45: "45. At all material times Moore and Thwaites had access to Harders with respect to the facts and matters set out in paragraphs 18 to 44 inclusive above. " ' The meaning of this paragraph 1s uncertain, and it corld be relevant only as evidence. The allegations of the next five conspiracies show an embarrassing lack of specificity, and the confusion of the pleading continues unabated. After the six conspiracies are dealt with, the pleading refers to an anstruction which it is alleged that the defendant Moore gave to Mrs. Inglis. It was an instruction "not to mention any matter with respect to the conditions of the employment of the Plaintiff in her present Office or the conditions of the employment of the Plaintiff in her Former Office to any Senator or Member of the House of Representatives other than to the Presiding Officers through Moore," The ensuing paragraphs, without allegations of further facts, then assert that the instruction is "an abuse of the administrative powers cf Moore under the Act" (paragraph 154), "ultra vires the authority of Moore under the Act" (paragraph 155), "a Cloak for the corrupt practices of Moore" (paragraph 156), "unconstitutional and voice" (paragrapp 158), and "operates to prevent a proper surveillance by the Auscralian Parliament of the administration of the Library" (paragraph 157). Paragraph 159 completes this section of the pleading: Lyn 10. "159, It is a fraud on the Public Service Act 1922 as amended (Cth) and the Crimes Act 1914 as amended (Cth) if the Plaintiff is under duty not to disclose to any person any fact or document which had core to her Knowledge or into her possession concerning any or all of the matters with respect to which declarations are sought in paragraphs 1 to 27 in the writ of summons herein and in paragraohs 1 to 27 of the prayer for relicf in the Plaintiff's claim herein below; any enforced silence on the Plaintiff concerning these administrative matters must act as an encouragement and shield for the said conspirators with respect to the six conspiracies referred to in paragraph 17 above. " These paragraphs seem to contain mere tendentious argument. It 1S unnecessary to refer to the concluding series of paragraphs (paras.160 to 164)which are to be found, in some form, in the existing Statement of Claim, except to note that they add to the conplexity of the pleading by incorporating many of the antecedent paragruphs by reference. How is a defendant to deal with a pleading of this kind? As James L.J. said in Davy v. Garrett (1878) 7 Ch.D.473 at p.483: "Now nothing 1s more embarrassing to a defendant than a number of statements which may be irrelevant, and with which he therefore does not know what to do." Irrelevancies abound in the pleading, but ths qravest objection is that one cannot ascertain what are the constitutive facts of the causes of action or grounds of relief upon which Mrs.Inglis would rely: the pleading is not intelligible. And dames L.J. pointed out (ibid. at p.486 see o--/1L 11. "But a Defendant may claim ex debito justitiae to have the Plaintiffs' case presented in an intelligible form, so that he may not be embarrassed in meeting it; and the Court ought to be strict even to severity in taking care to prevent pleadings from degenerating into the old oppressive pleadings of the Court of Chancery. If pleadings such as this are to be allowed, the gentlemen who took such pains in the preparation of the rules may say, as Oliver Cromwell did after an unsuccessful attempt to reform abuses, 'The sons of Zeruiah be too hard for me.' " The defects in the ellegations are compounded hy some of the claims which follow. The allegations of the first six conspiracies do not found any claim for substantive relief, but only claims for declarations. For example, in the case of the first conspiracy, declarations are sought that the agreement of the alleged conspirators "to effect the transfer of the Plazuntiff...constitutes a criminal conspiracy within the ambit of s.86 of the Crimes Act 1914", or alternatively "a criminal conspiracy at. common law", (We do not know whether there is, or 1s intended to be, any significance in the omission from the claims of any reference to the alleged "illegal means" of effecting the transfer). These are two of the declarations by which Mrs. Inglis secks to establish judicially that the conduct of some two or more of the defendants constitutes the criure c of unlawful conspiracy. She also seeks declaratior3 that o some acts done by individual defendants were illegal, though no substantive relief 2s claimed. Although 1t cannot be said that a declaration that conduct constitutes a crime 12. will never be made (Sankey v. Whitlam (1978) 53 A.L.J.R.1L at p.14), the discretion to make declarations of that kind is cautiously exercised, Some of the grounds of caution are referred to in Gouriet v. Union of Post Office Workers [1978] A.C.435, where Lord Wilberforce said in reference to the civil remedy of an injunction to restrain the commission of crime (at p.481): "l..where Parliament has (as here in the Past Office Act 1953) provided for trial of offences by andictment before a jury, 1t may seem wrong that the courts, applying a civil standard of proof, should in effect convict a subject without the prescribed trial. What would happen if, after punishment for contempt, the saine man were to be prosecuted 1n a criminal court? That Lord fldon L.c. was much oppressed by these difficulties is shown by the discussions in Attorney-General v. Cleaver (1811) 18 ves.Jun.210. ° ~ These and other examoles which can be given show that this jurisdiction - though proved uszeful on occasions - 1s one of great delicacy and is one to be used with caution." The pleading dces not show that the making of 4 declaration relating to the allegations of crime vould serve any useful purpose, for it does not appear that a declaration would advance or improve Mrs. Inglis' legal position or entitle her to any legal remedy. The clains for declarations that crime was cormitted appear at first Sight to be vexatious. In the course of hor argument before us, Mrs. Inglis avowed that her motive in seeking the declarations as to criminal conspiracy vas nok to recover damages but to secure "the proper action to be taken against the pcrson responsible" and she added that "if it were not taken I would be in a sounder position to take it a) 13. myself," It seems that Mrs. Inglis wishes to secure, in civil proceedings, a judicial declaration of the guilt of some defendants 1n order to procure or facilitate a prosecution of them for the same offence in criminal proceedings. But, as Viscount Dilhorne said in Gour1et's case, supra, at p.490:- "The criminal law is enforced in the criminal courts by the conviction aud punishment of offenders, not in the civil courts. 'The jurisdiction of the civil courts is mainly as to the determination of disputes and claims. Tncy are not charged with rcesponsibiiity for the adiunistration of the criminal courts. The question 'Are the courts to stand idly by?' might be supposed by some to suggest that the civil courts have some executive authority in relation to the criminal law. The line between the functions of the executive and the judiciary should not be blurred." In the particular circumstances of this case, 1t would be an abuse of the Supreme Court's process to allow Mrs. Inglis to pursue, in furtherance of her design, her claims for declarations as they appear in the plicading. Althouch the making of a declaration is discretionary and the discretion is usually exercised at a later stage in proceedings, it 1s open to the Court to terminate at an early stage proceedings for a declaration which are clearly an abuse of its process, (Roesin v. Attorney-General 34 T.L.R.417). It as equally open to the Court, where a discretionary order would, if granted, put in train proceedings in abuse of its process, to refuse the order. That 1s what Smithers J. did, and did rightly. we /14 la. Counsel for the defendants before Smithers J. took little objection to the form of the allegations, founding his argument principally upon the futility of allowing amendments which were calculated to secure only declarations that crimes had been committed. Although we should find the form of the allegations sufficient to warrant the dismissal of this appeal, the order may be upheld as the most convenient wey of dealing with an application which; if granted, would have required the Supreme Court to entertzin an action which would abuse its process. Both the form of the pleading and the claims for declarations 2n respect of crines show that the appeal must fail. Tt is oppressive to require the present defendants to plead to a Statement of Claim in which allegations linking them with the proposed defendants are made in an unintelligible form; and it is oppressive to require the present defendants to go to trial to oppose the making of declarations which manifestly will not be made. The joining of additional defendants ought not be ordered unless the proposed pleading reveals in an intelligible way the cause of action or groand for relief against them, and unless the joining of the defendants is shown to be for the purpose of claiming appropriate relicf against them. The proposed Statement of Claim fails to do so, and 1 would be as oppressive of the proposed additional defendants «eS Lt 2s oppressive of the present defendants. + /15 15, An additional objection was taken before Smithers J. to joining the Attorney-General. Mrs. Inglis sought to join the Attorney-General though no relief was claimed against him, The Attorney-General is not a proper party to be joined when the plaintiff wishes to make a claim in tort not against him but against the Commonwealth (Bainbridge v. Postmaster-General {1906] 1 K.B.718; Sargood Bros. v., The Commonvealth (1910) 11 C.L.R.258 at p.303; New South Wales v. Bardolph (1934) 52 C.L.P. 455 at p.519), and an application to bring him in as a party in such an action without claiming any relief against him is bound to fail If Mrs. Inglis can make an intelligible case on which to base a claim for relief which 1s not an abuse of the court's process, the order made by Smithers J. will not stop her from pursuing it. In saying so, we wish to guard against a suggestion that the repetitious applications for leave to arend her pleading are irrelevant to the consideration of any future application which she might make. Certain it is that she should not be permitted to prosecute the present action in the form advanced by her in making the application to Smithers J. That application was rightly refused. His Hcnour was also right to reject Mrs. Inglis' application that he should not hear her application. There was no ground for her application in that behalf. This appeal should be dismissed, and Mrs. Inglis should pay the costs of the respondents to he ta:ed. I certify that th's «nd the pr ceding 14 pages aré a tru. cooy of thie Reteons for Judomat of their Henours Mr.Ju: f3ce Brennen and tir. Justice Davies. | a / Dated:!0.5 ¥ fh te Canorey Associate to Brennan J, ee