Case: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117
Outcome: cited
While its burden has been the subject of controversies of recent times: see Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 ; it is unnecessary that I enter upon them. It is sufficient for me to note that: (i) the effect of s 31A was to soften the test for a successful application for summary judgment as stated by the High Court in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 ; see Kowalski at [25]-[26]; (ii) As to what is signified by having "no reasonable prospect of successfully prosecuting a proceeding", in light of what was said in Kowalski at [29]-[30], I am content to adopt what was said by Rares J in Boston Commercial Services Pty Ltd v G E Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 at [43] - [45] : The concept of a party having "no reasonable prospect of successfully prosecuting a proceeding" has some similarity to the test at common law for determining whether a jury properly instructed could reach a verdict for the plaintiff. That test was authoritatively stated by the Judicial Committee in Hocking v Bell (1947) 75 CLR 125 at 130 1 ; [1948] 1 ALR 85 at 87 8 ( Hocking (1947)), approving the following statement from the dissenting judgment of Latham CJ ( Hocking v Bell [1945] HCA 16 ; (1945) 71 CLR 430 at 441 2 ( Hocking (1945))): If there is evidence upon which a jury could reasonably find for the plaintiff, unless that evidence is so negligible in character as to amount only to a scintilla, the judge should not direct the jury to find a verdict for the defendant, nor should the Full Court direct the entry of such a verdict. The principle upon which the section is based is that it is for the jury to decide all questions of fact, and therefore to determine which witnesses should be believed in case of a conflict of testimony. But there must be a real issue of fact to be decided, and if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law, and direct a verdict to be entered in accordance with the only evidence which is really presented in the case. [Emphasis added] ... In a case to which s 31A applies, where there is a real issue of fact to be decided in the sense identified in the above principle, and, possibly, where there is a real issue of law of a similar kind, it is obviously appropriate that the matter goes to trial. ... I am of opinion that in assessing what reasonable prospects of success are for the purposes of s 31A , the court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking (1947), contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the evidence may have such an ambivalent character prior to a final determination, I am of opinion that then, as a matter of law, at that point there are reasonable prospects of success within the meaning of s 31A.