Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: applied
The BoQ parties have applied, pursuant to O 11 r 16 of the Federal Court Rules , to strike out those paragraphs of the amended defence identified in the notice of motion by which the application was brought. They expressly eschew reliance upon s 31A of the Federal Court of Australia Act 1976 (Cth). That means that the application falls for determination having regard to the circumspection in relation to the striking out of a pleading counselled by authorities such as General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. 6 In the substantive proceeding the case advanced by the BoQ parties may be summarised as follows: (a) each of the OMB parties who entered into an OMB Agreement was an "independent contractor"; (b) each respective OMB Agreement related to the performance of work by that party as an independent contractor; (c) there exists in each respective case the requisite constitutional connection specified in s 5(2) of the Independent Contractors Act 2006 (Cth); (d) accordingly, each respective OMB Agreement is a "services contract" as defined by s 5(1) of the Independent Contractors Act ; (e) s 106 of the NSW Act is a law of a State which expressly provides for a court to make an order or determination in relation to a "services contract" on an unfairness ground setting aside, declaring void or amending or varying that contract; (f) the effect of s 7(1)(c) of the Independent Contractors Act and s 109 of the Constitution is that the OMB Agreements are not affected by s 106 of the NSW Act; (g) accordingly, the Industrial Court of New South Wales has no jurisdiction to make an order under s 106 of the NSW Act in respect of the OMB Agreements. 20 Well over a century ago, in Daly v Egan (1886) 12 VLR 81 , at 84, a Full Court of the Supreme Court of Victoria observed of the jurisdiction to give summary judgment that: This summary jurisdiction is not intended to be exercised where the defendant has any plausible defence, or disputes any of the material facts. A Judge in chambers is not to try a case on affidavit where the facts are in dispute. See also to like effect in that same year observations made by Holroyd J in White v Johnston (1886) 8 ALT 53. Thus, when in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 105 , at 129-130 Barwick CJ cited with approval the following observation of Dixon J (as he then was) in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 , at 91 that: The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious, But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process, he was not promoting any novel approach to the disposal of an application like the present. The approach described had been evident since colonial times. Real questions of law and fact are raised by para 52(c) and paras 57 to 63 of the amended defence. It is not appropriate to deal with them summarily. Further, that there are presently hypothetical qualities to the questions of law sought to be agitated by the BoQ parties is an added reason, in the exercise of federal jurisdiction, for this Court not to answer them at this stage. The courts created by the Commonwealth Parliament under Chapter III of the Constitution do not give advisory opinions: In Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257.