CATCHWORDS PRACTICE AND PROCEDURE - whether appellant conducting proceedings for a purpose collateral to the substantive relief sought - whether abuse of process - Federal Court Rules O.11 r.16. Castanho v Brown and Root UK Limited [1981] AC 557 Deputy Commissioner of Taxation v Edelsten, (Burchett J, unreported, Federal Court, 10 March 1988) Goldsmith v Sperrings Limited [1977] 1 WLR 478 In re Majory [1955] Ch 600 Packer v Meagher [1984] 3 NSWLR 486 Saffron v Commissioner of Taxation (1991) 30 FCR 578 Williams v Spautz (1992) 174 CLR 509 RUSSELL GORDON HAIG MATHEWS v JOANNE KATHRYN MADDIGAN DANIELLE JULIE BARKER, LAURENCE JOSEPH BARKER FRAN DOUGLAS, KEVIN PATRICK O'CONNOR, DETECTIVE SENIOR CONSTABLE G.A. TESKE, JOHN JOSEPH ARMSTRONG, DANIELLE DILLON and PHIL DAVIDSON No. QG 76 of 1995 Davies, Foster & Sackville JJ. 6 November 1995 Brisbane IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) No QG 76 of 1995 GENERAL DIVISION ) On appeal from a single judge of the Federal Court of Australia BETWEEN: RUSSELL GORDON HAIG MATHEWS Appellant AND: JOANNE KATHRYN MADDIGAN First Respondent DANIELLE JULIE BARKER Second Respondent LAURENCE JOSEPH BARKER Third Respondent FRAN DOUGLAS Fourth Respondent KEVIN PATRICK O'CONNOR Fifth Respondent DETECTIVE SENIOR CONSTABLE G.A. TESKE Sixth Respondent JOHN JOSEPH ARMSTRONG Seventh Respondent DANIELLE DILLON Eighth Respondent PHIL DAVIDSON Ninth Respondent Coram: Davies, Foster & Sackville JJ. Date: 6 November 1995 Place: Brisbane MINUTES OF ORDER THE COURT ORDERS THAT: The appeal be dismissed with costs. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) No QG 76 of 1995 ) GENERAL DIVISION ) On appeal from a single judge of the Federal Court of Australia BETWEEN: RUSSELL GORDON HAIG MATHEWS Appellant AND: JOANNE KATHRYN MADDIGAN First Respondent DANIELLE JULIE BARKER Second Respondent LAURENCE JOSEPH BARKER Third Respondent FRAN DOUGLAS Fourth Respondent KEVIN PATRICK O'CONNOR Fifth Respondent DETECTIVE SENIOR CONSTABLE G.A. TESKE Sixth Respondent JOHN JOSEPH ARMSTRONG Seventh Respondent DANIELLE DILLON Eighth Respondent PHIL DAVIDSON Ninth Respondent Coram: Davies, Foster & Sackville JJ. Date: 6 November 1995 Place: Brisbane REASONS FOR JUDGMENT The Court: The appellant, Mr Russell Gordon Haig Mathews, appeals from the decision of Drummond J of 18 May 1995 in relation to his application QG180/94. Drummond J summarily dismissed Mr Mathews' application against all of the respondents except for the 6th. In relation to the 6th respondent, his Honour ordered that proceedings against her be permanently stayed pursuant to Order 20 rule 2 of the Federal Court Rules. The 1st respondent, Ms Maddigan, is a person who, in July 1989, complained to the Human Rights and Equal Opportunity Commission ("the Commission") of workplace sexual harassment by Mr Mathews. The 2nd and 3rd respondents are her parents. The 5th respondent is the Human Rights Commissioner who conducted the hearing of her complaint. The 7th, 8th, and 9th respondents are officers of the Commission who were in various ways involved in the proceedings. The 4th and 6th respondents had not been served by the appellant with the application at the time of the hearing. The 4th respondent is a Queensland public servant and the 6th is a Queensland Police Officer. Another officer of the Commission, Ms Scale, had originally been sued in the proceedings but the action against her was discontinued when Mr Mathews later amended his pleading. Mr Mathews' claim for damages against Ms Maddigan was founded upon his allegation that, on 27 February 1989, she unlawfully entered premises of the lessee, AAH-Rem Proprietary Limited, and unlawfully took away certain documents of the company relating to her employment by the company. Mr Mathews has been a director and an employee of AAH-Rem Pty Ltd. He sought, so he said, substantial damages to vindicate his right to recover the documents which he said had been in his possession as a bailee of the company or otherwise. The application sought damages for trespass to land and for trespass to chattels and an order that the documents allegedly removed be returned. For the purposes of this judgment, we need not discuss whether Mr Mathews could have established that he held a bailment of the documents or any form of possession of the type that is recognised for the purposes of an action of trespass. Drummond J held that there had been an abuse of process. It is an abuse of process to bring proceedings for a purpose which the law does not recognise as a legitimate use of the remedy sought. Relevant facts which his Honour took into account, inter alia, were as follows. Ms Maddigan commenced employment with AAH-Rem Pty Ltd, a company which in late 1988 and early 1989, operated a tax accountancy business. On 27 February 1989, she left the employment of the company without notice. On that day she allegedly took the documents which are the subject of the present proceedings. In May 1989, Mr Mathews complained to the police about the theft of the documents by Ms Maddigan. In July 1989, Ms Maddigan made the complaint of sexual harassment to the Commission against Mr Mathews to which we have already referred. In March 1991, the 5th respondent as Commissioner found that Ms Maddigan had made out her complaint of sexual harassment by Mr Mathews. Between 22 and 28 April 1992, Spender J of this Court, reheard Ms Maddigan's complaint of sexual harassment. His Honour reserved judgment at the completion of the hearing. In mid-June 1992, Mr Mathews commenced in the Magistrates Court at Brisbane a private prosecution of Ms Maddigan for theft of the documents relevant to the present proceedings. On 21 April 1993, Spender J delivered his judgment on the sexual harassment complaint and Mr Mathews was ordered to pay to Ms Maddigan $6000 in compensation for sexual harassment. Mr Mathews had also brought separate proceedings against the Commission relating to its conduct of the sexual harassment hearing. On 21 April 1993, Spender J also dismissed those proceedings. On 16 November 1993, a Full Court of this court dismissed for want of prosecution appeals brought by Mr Mathews from Spender J's decisions. The principles relevant to the striking-out of proceedings as an abuse of process were discussed by Burchett J in Deputy Commissioner of Taxation v Edelsten, (unreported, Federal Court, 10 March 1988). His Honour said at p.8: "When Castanho's case (supra) [Castanho v Brown and Root UK Limited [1981] AC 557] was before the Court of Appeal, (see [1980] 1 WLR 833 at 855) Lord Denning referred to his own judgment in the earlier case of Goldsmith v Sperrings Limited [1977] 1 WLR 478 at 489, where he had said: `On the face of it, in any particular case, the legal process may appear to be entirely proper and correct. What may make it wrongful is the purpose for which it is used.' Lord Denning in Castanho's case added:- `If it is used for the purpose of the party obtaining some collateral advantage for himself and not for the purpose for which such proceedings are properly designed and exist, he will be held guilty of abuse of the process of the court.'" Burchett J added a reference to Packer v Meagher [1984] 3 NSWLR 486 at 491-493, and went on at pp 8-9, referring to Goldsmith's case at 498-500:- "Scarman LJ, (as he then was) said:- `In the instant proceedings the defendants have to show that the plaintiff has an ulterior motive, seeks a collateral advantage for himself beyond what the law offers, is reaching out `to effect an object not within the scope of the process': Grainger v Hill (1838) 4 Bing. (N.C.) 212, 221 per Tindal C.J. In a phrase, the plaintiff's purpose has to be shown to be not that which the law by granting a remedy offers to fulfil, but one which the law does not recognise as a legitimate use of the remedy sought: see In re Majory [1955] Ch 600, 623.' These authorities unite in seeing as crucial the purpose for which the process is used. It is the illegitimacy of the purpose that makes the abuse." Similarly, in Saffron v Commissioner of Taxation (1991) 30 FCR 578, Davies J said at 583:- "That brings me to the question of abuse of process. Legal proceedings may not be instituted or carried on for the purpose of challenging by inappropriate means the judgment or order of a court made in either civil or criminal jurisdictions. See eg Hunter v Chief Constable (supra) [[1982] AC 529], in which proceedings were struck out as they sought to challenge in civil proceedings the order of a judge on a voir dire in criminal proceedings and the verdict of the jury therein. Lord Diplock said (at 541) it was an abuse of process to initiate proceedings in a court: `for the purpose of mounting a collateral attack upon a final decision ... which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.' But, in such a case, it is the purpose of the proceedings which constitutes the abuse of process, as his Lordship made clear throughout his speech." Reference should also be made to the judgment of the High Court in Williams v Spautz (1992) 174 CLR 509. At page 528, Mason CJ, Dawson, Toohey, and McHugh JJ referred to Lord Evershed's judgment in In re Majory at pp 623-4, where Lord Evershed said:- "[C]ourt proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court, and therefore disqualified from invoking the powers of the court by proceedings he has abused." Their Honours went on to say: "In our view, that is a correct statement of the principle." Reference should finally be made to the remarks of Lord Justice Bridge in Goldsmith v Sperrings Limited [1977] 1 WLR 478 where his Lordship said, at 503: "In my judgment, one can certainly go so far as to say that when a litigant sues to redress a grievance no object which he may seek to obtain can be condemned as a collateral advantage if it is reasonably related to the provision of some form of redress for that grievance. On the other hand, if it can be shown that a litigant is pursuing an ulterior purpose unrelated to the subject matter of the litigation and that, but for his ulterior purpose, he would not have commenced the proceedings at all, that is an abuse of process." Drummond J held:- "In my opinion, Mr. Mathews' proceedings in QG 180 of 1994 against the first respondent are an abuse of the process of this Court in that they are part of a long-running campaign that Mr. Mathews has mounted against her to punish her for the injustice he considers she is responsible for inflicting on him by her complaint to the Human Rights and Equal Opportunity Commission of sexual harassment back in 1989. The prospect of any compensation for any loss he himself has suffered by reason of the theft of the company's documents and trespass upon the company's premises, which he alleged the first respondent committed, is, in my view, of no real significance to him." At p.25, his Honour said: "Mr Mathews is not, I think, concerned to obtain compensation for any actual loss he himself has suffered. He is concerned, instead, to obtain the personal satisfaction of putting the first respondent through a court hearing and getting a judgment that will prove his point that she is a thief." In support of those findings, his Honour placed weight upon the fact that the trespass was upon premises which were the office of the company, AAH-Rem Pty Ltd, that the documents which were alleged to be stolen were the company's documents and that Mr Mathews had ceased to be connected with that company. His Honour expressed some additional reasons for regarding the application as an abuse of process. His Honour referred to the length of time that had passed before the proceedings in this Court were commenced and to the sequence of events following Ms Maddigan's departure from her employment at AAH-Rem Pty Ltd. His Honour referred to the fact that the private prosecution of Ms Maddigan was commenced by Mr Mathews, only shortly before the start of a District Court trial in which Mr Mathews was charged with intimidating Ms Maddigan as a witness against him in the sexual harassment case. His Honour thought the timing of the prosecution strongly suggested that Mr Mathews was attempting to put pressure on Ms Maddigan when she was so soon to be called as a witness in the District Court proceedings. His Honour referred to the fact that the private prosecution was later struck out as an abuse of process. It was not until a further two years passed, indeed, two days before the start of a trial in the District Court on an assault charge flowing outof his involvement in the sexual harassment case, that Mr Mathews commenced the proceedings in this Court claiming in his own name damages against the first respondent for the alleged trespass and the taking of the documents. It may also be observed that the joinder in the application of the Human Rights Commissioner and of the officers of the Commission, and the seeking of damages against them, gave to the proceedings in this Court the hallmark of a collateral attack upon the sexual harassment proceedings themselves, proceedings which had been determined in Ms Maddigan's favour, both in the Commission and by Spender J. In our opinion these considerations fully justified Drummond J's decision to strike out the proceedings as an abuse of process. It may be difficult to express in words the several motives which appear to have led Mr Mathews to institute the proceedings. But there is no reason to doubt that the recovery of damages for trespass and the recovery of the documents were not matters which prompted the initiation of the proceedings. To use the words of Lord Justice Bridge in Goldsmith v Sperrings to which we have already referred, this is a case where Mr Mathews brought proceedings for "an ulterior purpose unrelated to the subject matter of the litigation and ..., but for his ulterior purpose, he would not have commenced proceedings at all." Thus there was an abuse of process. The second and third respondents were alleged to have counselled MsMaddigan to commit the two trespasses. Mr Mathews deposed that they had acted infurtherance of the common design of defrauding the employer of the first respondent by removing the proof of debt for the premises leased by AAH-Rem Pty Ltd. The second, third, fifth, seventh, eighth and ninth respondents were alleged to have been joint tort feasors and to have acted in furtherance of a common design, presumably the same common design we have just mentioned. Drummond J held that there was no evidence of this before the Court, notwithstanding that ample opportunity had been given to Mr Mathews to adduce evidence as to why it would be open to a Court to accept the allegations. Drummond J found that the contentions of Mr Mathews were mere allegations or expressions of opinion unsupported by evidence. On that basis, his Honour held that the proceedings failed to disclose a reasonable cause of action against the second, third, fifth, seventh, eighth and ninth respondents and that the proceedings were embarrassing and vexatious. Drummond J also made orders in relation to the claims against the fourth and sixth respondents but there is no appeal in respect of them. We see no error of fact or law in the judgment below. We are of the opinion that the appeal should be dismissed with costs and the Court so orders. I certify that this and the preceding 8 pages are a true copy of the reasons for judgment of the Court. Associate: Date: 6 November 1995 Appearing for the appellant: In person Counsel for the 1st, 2nd, 3rd, 4th, 7th, 8th and 9th respondents: P.J. Favell Solicitor for the 1st, 2nd, 3rd, 4th, 7th, 8th and 9th respondents: Australian Government Solicitor Date of hearing: 6 November 1995 Date of judgment: 6 November 1995