Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
The Court will always be slow to exercise its discretion to strike out a pleading: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. The power will be used sparingly and only where there is a clearly untenable case. It is of course an abuse of process to maintain an action which is doomed to fail: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 at 393. The onus of satisfying the Court that this criterion is met lies upon the party alleging that to be the case. 35 Any proceeding commenced on or after 1 December 2005 is subject to s 31A(2) of the Federal Court of Australia Act 1976 (Cth), as well as O 20 r 5 of the Rules. Section 31A provides that the Court may give summary judgment in favour of one party against another if, inter alia, it is satisfied that the other party "has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding". For the purposes of the section, a proceeding, or part of a proceeding, need not be hopeless or bound to fail for it to have no reasonable prospect of success. The section is concerned with the bringing and defending of proceedings, and not just with pleadings. It seems clear that the section is intended to relax the test imposed by General Steel as to the circumstances in which a proceeding may be struck out. 37 The respondents did not at any stage seek to invoke s 31A. For that reason, I propose to hold them to the higher, General Steel standard insofar as they seek to strike out the grounds of review that they have identified. I do so without expressing any final opinion as to whether s 31A would, in fact, have been available to them had they sought to rely upon it. 38 To the extent that the applicant's case against the respondents depends upon nothing more than its claim that the current Minister is approaching the question of "public interest" in a different manner to his predecessor, it is untenable. 39 The Minister's predecessor may have taken a more benign view of the importation of weapons of this type. If he did, that still cannot form the basis of a conclusion that the Minister's decision in this case was unreasonable. The requirement in s 77EA that the Minister base his decision upon "the public interest" confers upon him a broad and multi-faceted discretion. Reasonable minds are likely to differ as to what that term entails. If the Minister's decision is, ultimately, held to be unreasonable in the Wednesbury sense, it will be because it was wholly irrational and not because his predecessor did not share this Minister's views. 40 It follows that I would be minded to strike out the grounds of review, and the particulars in support thereof, that depend entirely upon reasoning of the type just discussed. I say that in the context of an interlocutory application brought for the sole purpose of obtaining leave to deliver interrogatories aimed at assembling evidence to support a factual finding that leads nowhere in a legal sense. As I will not be hearing this matter when it comes before the Court for final determination, it is sufficient for me to do no more than refuse the application for leave to deliver those interrogatories that relate to the period prior to 6 December 2007 without, at this stage, proceeding to strike out the grounds of review that I regard as untenable. 41 The position regarding the period after 6 December 2007 is more difficult. At a theoretical level, there might be a case in which it could be shown that the Minister has discriminated against the applicant, singling it out for adverse treatment and ignoring the acts of its competitors. Such conduct on the part of the Minister might be amenable to judicial review, if not under the ADJR Act , then certainly pursuant to s 39B.