Summary Williams v Spautz [1992] HCA 34

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Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 (27 July 1992)

The facts

Dr Michael Spautz was a senior lecturer in the Department of Commerce at the University of Newcastle. By late 1978 and throughout 1979, Dr Spautz was in serious conflict with Professor Williams; he alleged plagiarism in the Professor’s doctoral thesis, disputed the Professor’s appointment to an administrative post within the Department and threatened litigation.

The University Council resolved on 20 May 1980 to dismiss Dr Spautz after a committee report.

In August 1980 Dr Spautz commenced proceedings in the Equity Division of the Supreme Court of New South Wales seeking a declaration that his dismissal was invalid.

From 11 August 1981 until 1992, Dr Spautz commenced over thirty proceedings – the majority, criminal prosecutions – against persons who occupied positions of authority at the University or who played a role in the events leading to his dismissal. The criminal prosecutions laid by Dr Spautz alleged a range of offences including criminal defamation, conspiracy seriously to injure, conspiracy falsely to accuse, attempting to pervert the course of justice and unlawful conspiracy. One of the causes of action alleged in the civil actions was defamation.

On 14 October 1983, Hunt J dismissed certain prosecutions initiated by Dr Spautz against members of the University and made declarations that the prosecutions constituted an abuse of process and orders permanently staying those prosecutions (2) Spautz v. Williams (1983) 2 NSWLR 506.

Approximately one month later, a claim for relief by members of the University came before Yeldham J in relation to further prosecutions commenced by Dr Spautz. Yeldham J not only made orders in terms similar to those of Hunt J. in respect of the further prosecutions instituted by Dr Spautz but also made an order pursuant to s.84(2) of the Supreme Court Act 1970 (N.S.W.) declaring Dr Spautz a vexatious litigant and restraining him from laying further informations or otherwise instituting criminal proceedings against those members of the University or their senior counsel without prior leave of that Court.

Each of the appellants commenced separate proceedings in the NSW Supreme Court seeking, inter alia, declarations that the prosecutions against them were an abuse of the process of the court and that they be permanently stayed.

Relevant Law

The general principle applicable when a plaintiff intends to obtain a result outside the scope of the remedy was stated by Lord Evershed in re Majory (77) (1955) Ch 600, at pp 623-624:

“court 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.”

In Uren v. John Fairfax and Sons Pty. Ltd. (84) [1966] HCA 40; (1966) 117 CLR 118, at p 150 Windeyer J. observed that:

“Defamation is a criminal offence and also a civil wrong. We heard in the course of the argument some complaint of a victim of a criminal act having an option to pursue his civil remedy and in this to seek punitive damages instead of seeking to set the criminal law in motion. But the law allows this, and not only for defamation; and perhaps wisely so. One lesson of eighteenth century events may be that libels, especially those arising out of private feuds and partisan political controversy, ought not, except in very gross cases, to be made the subject of criminal prosecutions.”

Bridge L.J. commented in Goldsmith v. Sperrings Ltd. (93) (1977) 1 WLR 478, at p 503:

“Actions are settled quite properly every day on terms which a court could not itself impose upon an unwilling defendant. An apology in libel, an agreement to adhere to a contract of which the court could not order specific performance, an agreement after obstruction of an existing right of way to grant an alternative right of way over the defendant’s land – these are a few obvious examples of such proper settlements. 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.”

In the same case, Bridge L.J commented that:

“What if a litigant with a genuine cause of action, which he would wish to pursue in any event, can be shown also to have an ulterior purpose in view as a desired byproduct of the litigation? Can he on that ground be debarred from proceeding? I very much doubt it.”

Lord Edmund-Davies in Gleaves v. Deakin said (57) (1980) AC 477, at p 490.

“Henry Brougham said 160 years ago that the ‘allegation of a breach of the peace was merely a fiction of the law, merely a reason for giving the court jurisdiction’ … and 30 years later Lord Campbell said that criminal libel existed simply ‘with a view of vindicating the character of the party injured, or of having revenge upon the libeller, and not in the remotest degree with any view to the protection of the public peace’: House of Lords, Select Committee (1843), vol.20, p 177.”

In Rohstoff v. Donaldson Inc, Slade L.J. observed (54) (1990) 1 QB, at p 469:

“(A) person alleging such an abuse must show that the predominant purpose of the other party in using the legal process has been one other than that for which it was designed”.

The majority observed that although the primary purpose of the criminal action for defamation was to punish a defamer by peaceful process of law, thereby discouraging resort to violence and preventing disorder, it was recognized that the action served a purpose in vindicating the reputation of the injured party.

Brennan J said in Jago v. District Court (N.S.W.) (4) [1989] HCA 46; (1989) 168 CLR 23:

“An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. … Although it is not possible to state exhaustively all the categories of abuse of process, it will generally be found in the use of criminal process inconsistently with some aspect of its true purpose, whether relating to the hearing and determination, its finality, the reason for examining the accused’s conduct or the exoneration of the accused from liability to punishment for the conduct alleged against him. When process is abused, the unfairness against which a litigant is entitled to protection is his subjection to process which is not intended to serve or which is not capable of serving its true purpose.”

Primary judge’s decision

After examining in detail the conduct of Dr Spautz during his self-proclaimed campaign for justice, Smart J found that:

“The predominant purpose of Dr Spautz in instituting and maintaining the criminal proceedings, the subject of the present applications, against Profs Gibbs and Williams and Mr Morris was to exert pressure upon the University of Newcastle to reinstate him and/or to agree to a favourable settlement of his wrongful dismissal case.”

Smart J also found there were secondary motives, such as the vindication of Dr Spautz’s reputation.

Smart J held that that the fundamental purposes of a criminal defamation prosecution are to punish the defamer and to protect the community and that the dominant purpose of the prosecutor must be to bring the offender to justice.

As Dr Spautz’s predominant purpose in bringing the prosecutions, namely, to secure his reinstatement, was improper and ulterior, Smart J found each of the relevant proceedings an abuse of process and ordered them stayed permanently.

NSW Court of Appeal’s decision

On appeal, the Court of Appeal rejected a challenge to the central finding concerning Dr Spautz’s predominant purpose. However, Priestley JA concluded that the trial judge erred in his formulation of the principles governing abuse of process the circumstances in which a stay of proceedings would be ordered. Priestley JA accepted that proceedings instituted for an improper purpose were in a sense an abuse of process, but considered that no permanent stay should be granted in the absence of some improper act in the prosecution of the process. Priestley J.A. considered that the governing principle was that supervising courts should restrict use of their power to control abuse of process to those cases in which exercise of the power is the only way of ensuring that an accused person is not deprived of a fair trial by reason of such abuse.

Mahoney JA dissented, applying the basic principle followed by Smart J that to bring proceedings to achieve objects ulterior to the purpose of the cause of action as pleaded was an abuse of process for which a permanent stay should be granted.

High Court’s decision

The High Court distinguished between a prosecution brought where a fair trial could not be ensured, and between a prosecution brought for an improper motive.

Five of the seven judges held the appeal should be allowed. The declarations and orders of Smart J made in the NSW Supreme Court were reinstated.

The majority’s decision

The majority (Mason CJ, Dawson, Toohey and McHugh JJ) held that:

“If, however, a stay is sought to stop a prosecution which has been instituted and maintained for an improper purpose, it by no means follows that it is necessary, before granting a stay, for the court to satisfy itself in such a case that an unfair trial will ensue unless the prosecution is stopped. There are some policy considerations which support the view that the court should so satisfy itself. It is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences, and that persons charged with such offences should not obtain an immunity from prosecution. It is equally important that freedom of access to the courts should be preserved and that litigation of the principal proceeding, whether it be criminal or civil, should not become a vehicle for abuse of process issues on an application for a stay, unless once again the interests of justice demand it. In the United States, great weight has been given to these factors (10) See Rosemont Enterprises Inc. v. Random House Inc. (1966) 261 F Supp 691, at pp 696-697.”

The majority endorsed the test applied by Lord Denning in Goldsmith v. Sperrings Ltd. (53) (1977) 1 WLR, at p 496 and by the English Court of Appeal in Metall and Rohstoff v. Donaldson Inc.

The majority held that the fundamental purpose of criminal action for defamation, as with other criminal proceedings, is to decide whether the accused has engaged in conduct which amounts to an offence and is deserving of punishment. As such, Smart J’s finding there was also a secondary motive of the vindication of Dr Spautz’s reputation did not detract from the prosecutions being an abuse of process. Because there was a relevant use of the proceedings for an improper purpose, the appeal was allowed.

Brennan J’s judgment

Brennan J drew a distinction between the purpose of the proceeding and the motive of the plaintiff in commencing or maintaining it. Brennan J held that:

“There is no impropriety of purpose (whatever may be said of motive) when a plaintiff commences or maintains a proceeding desiring to obtain a result within the scope of the remedy, even though the plaintiff has an ulterior purpose – or motive – which will be fulfilled in consequence of obtaining the legal remedy which the proceeding is intended to produce. To amount to an abuse of process, the commencement or maintenance of the proceeding must be for a purpose which does not include – at least to any substantial extent – the obtaining of relief within the scope of the remedy.”

Turning to the facts of Dr Spautz’s prosecutions, Brennan J made the following observations:

“If the proceedings instituted by Dr Spautz were successfully prosecuted, only one of these purposes – vindication of reputation – could have been achieved by verdict or order, and only as a consequence of a conviction of the particular defendant (Professor Williams or Mr Gibbs) for criminal defamation. The other purposes – including pressure to compel a favourable settlement of other litigation – are wholly unrelated to the scope of the remedy available on prosecution of any of the charges pending in the Local Court. 14. Vindication of reputation apart, Dr Spautz’ purposes were entirely outside the scope of and unrelated to the remedy available in the proceedings commenced in the Local Court. Vindication of reputation apart, the case falls squarely within the passage earlier cited from the judgment of Isaacs J. in Varawa v. Howard Smith Co. Ltd. (79) (1911) 13 CLR, at p 91…
I would not admit the vindication of a private citizen’s reputation to be within the scope of the remedy available in proceedings charging criminal defamation, at least in the absence of evidence of conduct which would attract the punitive power of the State. It would be an extraordinary case in which defamation of a private person would amount to a crime against the State deserving of punishment. Once the vindication of reputation is rejected as a legitimate purpose of the proceedings against Professor Williams and Mr Gibbs, none of the proceedings in the Local Court can be seen as having been commenced or maintained for a legitimate purpose. Though regular in form, each of them is an abuse of process and should be stayed.”

Deane J’s dissent

Deane J made the following observations:

“The subjective purposes which might lead a plaintiff, claimant or informant legitimately to institute civil or criminal proceedings are manifold. Indeed, they are almost unlimited. It has never been the policy of the common law that a plaintiff’s predominant subjective purpose in instituting civil proceedings must be that of obtaining the orders sought in them or that committal proceedings can be instituted by a private informant only for a predominant purpose of obtaining the punishment of the defendant and/or the protection of the community. Most civil proceedings are instituted in the hope that the defendant will settle before the action ever comes to trial or formal orders are made. Frequently, they are instituted for the predominant subjective purpose of obtaining an object which it would be beyond the power of the particular court to award in the particular proceedings. For example, the predominant subjective purpose of a plaintiff in a common law action for damages for wrongful dismissal may well be to obtain a settlement involving reinstatement in his or her former position under a contract for personal services of a type which a court would not enforce by specific performance or injunction. A plaintiff’s predominant subjective purpose in suing at common law for damages for trespass to land may be to obtain a settlement in the form of undertakings about future conduct. A plaintiff’s predominant subjective purpose in bringing proceedings for an injunction restraining infringement of copyright or breach of patent may be to obtain a settlement incorporating a licence agreement providing for the payment of future royalties. In all those cases, the institution and maintenance of proceedings and the use of them to pursue a form of redress which the particular court could not have granted if the proceedings had run their course are legitimate unless the proceedings themselves are not founded on a genuine grievance but are used as a “stalking-horse” for extortion (92) See Varawa v. Howard Smith Co. Ltd. [1911] HCA 46; (1911) 13 CLR 35, at p 91 or merely as an instrument for vexation and oppression…
The “predominant” subjective “purpose” of a creditor who institutes proceedings in bankruptcy is ordinarily not to obtain the sequestration order for which he or she petitions. Indeed, that is commonly the last thing that a petitioning creditor wants. His or her predominant subjective purpose is ordinarily to obtain prompt payment of his or her debt whereas a sequestration order almost invariably precludes immediate payment and sometimes presages ultimate discharge of the debt with no payment at all. Again, the position will be different if the bankruptcy proceedings are used as an instrument of extortion of something to which the petitioning creditor has no legitimate claim”

Deane J held that proceedings that are regularly conducted will constitute an abuse of process only if the circumstances are either such that the proceedings are vexatious and oppressive for the reason that they lack any proper foundation or such that any subsequent trial will be necessarily and unavoidably unfair. Since none of those things had been shown to exist in Dr Spautz’s prosecutions, Deane J held that the appeal should be dismissed.

Gaudron J’s dissent

Gaudron J agreed with the majority that improper purpose is sufficient, without an improper act, to justify a stay.

Gaudron J held that an improper purpose involves a claim or demand made without right and without claim of right. Since Dr Spautz’s claims appeared to be genuine, there was no improper purpose established. Therefore, the appeal should be dismissed.


Five of the seven judges held that Dr Spautz’s predominant purpose of reinstatement to his former employment was an improper purpose for commencing his private prosecutions because resinstatement was collateral advantage to himself, and not the purpose for which such proceedings are properly designed and exist. However, the majority held that Dr Spautz’s secondary purpose of securing vindication could be a proper motive for a prosecution for criminal defamation, unlike Brennan J who held that this was also an improper motive.

In contrast, Deane J held that the test was whether there was any proper foundation to the proceedings, not the underlying motives. Gaudron J’s dissent focussed on the bona fides of the claims made.

This case establishes that the predominant purpose determines whether a proceeding is an abuse of process. If the predominant purpose falls outside what such proceedings are properly designed and exist for, the predominant purpose will be improper and an abuse of process will be established. In criminal proceedings, the predominant purpose must involve securing convictions against the defendants.

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