SPAUTZ v NICHOLAS [1990] NSWCA 170

SPAUTZ v NICHOLAS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MAHONEY and PRIESTLEY JJA 7 June 1990, 12 December 1990

[1990] NSWCA 170

ABUSE OF PROCESS — unsustainable claim in District Court held to be abuse of process of that court — appeal against declaration in Common Law Division (and consequential orders) that the proceedings in District Court be stayed as abuse of process, dismissed — in general, however, such applications should be made in the District Court which has ample power to deal with unsustainable claims.

VEXATIOUS LITIGANT — declaration made at first instance that defendant a vexatious litigant — declaration made under s84(2) Supreme Court Act on ground that defendant had habitually and persistently instituted vexatious legal proceedings against plaintiff — two proceedings only relied on, one in 1983, one in 1987 — held such proceedings did not show defendant had habitually and persistently instituted legal proceedings.

Samuels JA I agree with Priestley JA.

Mahoney JA On or about 16 December 1981 Dr Spautz laid informations against four persons charging them with criminal defamation. Mr Nicholas, in his capacity as a barrister, appeared on behalf of each of the defendants and submitted that the informations were defective in substance and form. The magistrate upheld his submission. Dr Spautz then laid fresh informations It is out of this that the proceeding has arisen.

On 15 December 1987, Dr Spautz sued Mr Nicholas and the magistrate in the District Court in relation to what happened. The magistrate is no longer a party to the District Court proceeding. Mr Nicholas has applied to this Court for a declaration that the proceeding in the District Court is an abuse of the process of that Court and that Dr Spautz is a vexatious litigant.

On 16 December 1988 Hunt J made the orders sought. Dr Spautz has appealed to this Court against his Honour's orders.