Dear Jason;
Thanks for pressing me on this point, which I did fudge in my previous
comment. I have now had a quick look and it turns out that a major
recent decision of the NSW Court of Appeal, Leerdam & Anor v Noori & Ors
[2009] NSWCA 90 (1 May 2009)
http://www.austlii.edu.au/au/cases/nsw/NSWCA/2009/90.html does in
fact directly hold that the tort of "collateral abuse of process" can
only be committed by a party to the proceedings- see Spigelman CJ at
[29] ff, following the previous unreported Full Court of the Federal
Court decision in Emanuele v Hedley (Federal Court of Australia, 19 June
1998, unreported) (see the quote from this case at [32]. There is quite
a significant discussion of the issue, with some reference to contrary
US decisions, but the Court all agree on this point, which seems clearly
part of the ratio of the decision. In addition there is some further
discussion by MacFarlane JA at [127] of another reason why the tort was
not satisfied in that case: along the lines that the tort can only be
committed by wrongful commencement of proceedings, not by the way that
those proceedings are conducted. The other two members of the Court
(Spigelman CJ and Allsop P) explicitly did not decide whether this
further ground was correct or not.
Regards
Neil



Neil Foster
Senior Lecturer
Newcastle Law School
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

http://www.newcastle.edu.au/staff/profile/neil.foster.html

http://works.bepress.com/neil_foster/




>>> Jason Neyers <jneyers@uwo.ca> 11/11/11 11:21 PM >>>
Dear Neil:

Do the Australian cases require the plaintiff to have been a party to
the litigation?

On 11/10/11, Neil Foster <Neil.Foster@newcastle.edu.au> wrote:

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> Dear Jason;
> As far as I can tell, reading the judgment and the passage in Fleming
9th ed, the court is not saying that Fleming got it wrong- at any rate,
Fleming does not really address this question of whether the tort action
for abuse of process can be brought by someone other than a party to the
allegedly abusive litigation. (The closest he comes is where he says
that "an action on the case will lie at the suit of the injured party"
but does not say that this party has to be a party to the previous
litigation.) The court simply points out that this issue had not been a
live issue in a previous case where Fleming's other criteria were
adopted. In Australia the HCA has said we should call the tort action
"collateral abuse of process"- Willams v Spautz (1992) 174 CLR 509 (a
case involving events at my University though well before I arrived, I
hasten to add), to make it clear that the tort action is different to
the remedy of terminating proceedings which are currently on foot.
> While it seems to me that GSK were arguably engaged in doing
something wrong and reprehensible in a general sense, it does seem that
this was a course that the law allowed them to take, and since the
obtaining of a commercial profit was clearly their predominant motive,
it would seem to be right that there was no success on "lawful means
conspiracy". (Indeed, it looks to me doubtful as to whether there was
more than one party involved anyway, which I would have thought was
necessary for conspiracy. But I see from footnote 1 that the actions
were taken by a group of affiliated companies and that GSK conceded this
element.)
> At the moment my feeling is that a claim by X that a case brought by
A against B has harmed their interests should probably be dealt with as
a claim for "causing loss by unlawful means" (OBG v Allan etc); this
would of course then involve showing that A's action was "unlawful", but
I think that would include a case where X can demonstrate that A's
action was an actionable "collateral abuse of process". Here, though,
even if the class action had relied on OBG, I think the claimants would
have had the same problem showing that GSK were doing anything
unlawful.
> Regards
> Neil
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> On 11/11/2011, at 7:11 AM, Jason Neyers wrote:
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> > Those of you interested in abuse of process, conspiracy or waiver
of tort, might be interested in the decision of the Ontario Court of
Appeal in Harris v. Glaxosmithkline Inc., 2010 ONCA 872
(http://www.ontariocourts.on.ca/decisions/2010/december/2010ONCA0872.htm).

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> > The allegation of the class plaintiff was that GSK had
opportunistically launched baseless NOC proceedings against generic drug
manufacturers to take advantage of the mandatory stay provisions of the
federal legislation. These provisions in effect extended the life of
GSK’s patents on one of its drugs (Paxil) by four years and allowed it
(so the plaintiff claimed) to charge consumers “supra-competitive”
prices that we significantly higher than those that would have been
charged by generic drug manufacturers.
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> > The Court found that the tort of abuse of process was not made out
since the plaintiff was not a party to the legal process initiated by
GSK (the generic drug manufacturers were) and this was a requirement of
the tort (despite claims made by Fleming to the contrary). The court
found that conspiracy to injure was not made out since GSK had not acted
with the predominant purpose of injuring consumers but rather with the
motive of commercial profit. Finally, the court found that there could
be no waiver of tort claim since “waiver of tort requires some form of
[predicate] wrongdoing” (at [58]).
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> > I, for one, have doubts as to the requirement of mutuality insisted
upon by the Court in relation to abuse of process but would, as always,
be interested in the views of others.
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> > Cheers,
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> >
> > --
> > Jason Neyers
> > Associate Professor of Law
> > Faculty of Law
> > University of Western Ontario
> > N6A 3K7
> > (519) 661-2111 x. 88435
> >
> >
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> Neil Foster
> Senior Lecturer
> Newcastle Law School Faculty of Business & Law
> MC158, McMullin Building
> University of Newcastle Callaghan NSW 2308 AUSTRALIA
> ph 02 4921 7430 fax 02 4921 6931
> http://www.newcastle.edu.au/staff/profile/neil.foster.html
> http://works.bepress.com/neil_foster/
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--
--
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435