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Abuse of process

In Victoria International Container Terminal Limited v Lunt [2021] HCA 11 (7 April 2021) the High Court had to consider whether an applicant’s motive for commencing proceedings (and concealment of that motive) amounted to an abuse of process that necessitated a permanent stay of the proceeding.

The first respondent, Mr Lunt, was a member of the Maritime Union of Australia (MUA) for more than two decades before it merged with the Construction, Forestry, Mining and Energy Union to form the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). While a member of the MUA, Mr Lunt was employed by the appellant until his dismissal.

Mr Lunt commenced proceedings (the first proceeding) in the Federal Court against the appellant claiming that the appellant had breached the Fair Work Act 2009 (Cth) by, among other things, breaching the Victoria International Container Operations Agreement 2016 (enterprise agreement). Mr Lunt later sought leave to amend the first proceeding to seek an order quashing the Fair Work Commission’s (FWC) approval of the enterprise agreement on the grounds that the approval was beyond the jurisdiction of the FWC.

Leave was refused and so Mr Lunt commenced a fresh proceeding (the second proceeding) seeking this relief.

The appellant brought an application for summary dismissal of the second proceeding on the basis that it was an abuse of process. The primary judge found that the MUA and CFMMEU were reluctant to bring proceedings in their own names because of the risk that they would be refused relief on discretionary grounds, given that the MUA had acquiesced in the approval of the enterprise agreement by the FWC.

The primary judge found that, for this reason, the CFMMEU had engaged Mr Lunt as the ‘front man’ in both the first proceeding and the second proceeding. The primary judge allowed the appellant’s application, and summarily dismissed the proceeding because, the primary judge concluded, Mr Lunt had brought the second proceeding not to vindicate his own right but rather for an “illegitimate and collateral purpose”.

Mr Lunt subsequently apppealed, successfully, to the Full Court of the Federal Court. The Full Court reasoned that because Mr Lunt sought to obtain a result within the scope of the remedy sought in the second proceeding, there was no impropriety of purpose and, as such, no abuse of process. The appellant subsequently appealed to the High Court and failed: the High Court unanimously upheld the Full Court’s decision.

Keifel CJ and Gageler, Keane and Gordon JJ (the majority) set out their reasons in a single judgment. Edelman J agreed with the majority and added a few observations of his own in his own judgment. The majority, at [23], drew a distinction between motive and purpose. The majority cited William v Spautz (1992) 174 CLR 509 at 526-527 in which the plurality (Mason CJ, Dawson, Toohey and McHugh JJ) said, among other things, that an abuse of process is “when the purpose of bringing proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers”.

The majority noted at [24] that Mr Lunt’s desired result, quashing the enterprise agreement, fell squarely within the scope of the remedy sought in the second proceeding. And “That Mr Lunt did not desire the result for himself, or desired the CFMMEU to take the benefit, does not change this fact” (Edelman J makes the same observation at [39]).

The majority also did not see that Mr Lunt’s lack of candour about his relationship with the the CFMMEU warranted a dismissal of the second proceeding. The majority considered at [27]-[30] that there was nothing objectionable about the relationship and Mr Lunt was under no obligation to disclose it. And, in any event, the majority observed at [32] that the court’s powers in relation to abuse of process are not concerned with punishing or deterring parties for their lack of candour. Instead, these powers are “exercised in order to protect the integrity of the court’s own processes”.

Edelman J at [43] also considered that a permanent stay of the second proceeding was an inappropriate response to Mr Lunt’s lack of candour: If the court’s discretion miscarried because of Mr Lunt’s concealment of his relationship with the CFMMEU then a new trial could be ordered. Edelman J noted that: “If the integrity of the court can be protected by remedies less drastic than a permanent stay of proceedings then there is no justification for a court to go further than necessary to protect its processes by denying a party the liberty of a fair hearing.”

Dr Michelle Sharpe is a Victorian barrister practising in general commercial, real property, disciplinary and regulatory law, ph 03 9225 8722, email msharpe@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au.

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