Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
The purpose of the section is described in the Explanatory Memorandum to the Migration Litigation Reform Bill 2005 (Cth) in the following terms: Subsection 31A(3) provides that for the purposes of giving summary judgment, a proceeding or part of a proceeding, or a defence to a proceeding or part of a proceeding, need not be hopeless or bound to fail for it to have no reasonable prospect of success. This moves away from the approach taken by the courts in construing the conditions for summary judgment by reference to the 'no reasonable cause of action' test, in 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. These cases demonstrate the great caution which the courts have exercised in regard to summary disposal, limiting this to cases which are manifestly groundless or clearly untenable. Section 31A will allow the Court greater flexibility in giving summary judgment and will therefore be a useful addition to the Court's powers in dealing with unmeritorious proceedings. Subsection 31A(4) provides that s 31A does not limit any other powers that the court possesses. 41 In Jefferson Ford at [45], Rares J commented that, when the Court gives judgment for a party under s 31A(1) or s 31A(2) ' it is exercising a jurisdiction similar to the implied or inherent power of the Court to protect its own processes from proceedings which are an abuse of those processes '. His Honour expressed the view that, by enacting s 31A, Parliament broadened the categories of case in which the power summarily to determine proceedings could be exercised and (at [57]) that it was not intended to create final, rather than interlocutory, judgments. Rather, it was intended to ' lower the bar ' (per Rares J at [63]) or, to put it another way, to ' impose a different and less stringent test ' (per Gordon J at [124]) for obtaining summary judgment, below the level set by the test in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 ( White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 per Lindgren J). It was introduced ' to strengthen "... the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases"' ( Jefferson Ford at [124] per Gordon J; Boston Commercial at [45] per Rares J; citing the Second Reading Speech to the Migration Litigation Reform Bill 2005 (Cth)). 43 Prior to the enactment of s 31A, the test for summary dismissal was as set out by Barwick CJ in General Steel . Applying Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 , Barwick CJ described (at 130) the balancing between competing interests that underlies summary judgment: [G]reat care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. Accordingly, (at 129) Barwick CJ articulated the following test: ...the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action... is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".