Case: Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146
Outcome: considered
Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 at 154-155, Dawson, Gaudron and McHugh JJ said that a party should not be shut out from litigating an issue which was fairly arguable and that the power to grant leave to amend should be exercised with that in mind. They observed (189 CLR at 154) that '...the ultimate aim of a court is the attainment of justice'. Obviously, s 31A regulates the attainment of justice by creating an entitlement in a party to be protected from claims or defences which fail to meet the threshold prescribed in the section. In granting leave to appeal on a decision involving the application of s 31A, Wilcox J observed in Vans, Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 at [12] that it was arguable that the effect of s 31A was that there could be summary judgment for an applicant '... notwithstanding the possibility that the applicant's case will break down at trial; in other words, it is now not enough for a party resisting a summary judgment application to seek merely to put the other side to proof' (his Honour's emphasis). I have considered whether I should allow new Boston an opportunity to replead. At the hearing, new Boston orally sought leave to amend its claim under s 51AC of the Act to allege that the conduct relied on in the statement of claim was also addressed to new Boston. It sought leave to plead that GE Capital made continuing representations to not only old Boston but also to new Boston and to plead a claim in quantum meruit. There is no evidence to support the claim of new Boston under s 51AC or the allegation of continuing representations. I do not consider that claims which are entirely unsupported by evidence, and are inherently unlikely, should be allowed to be made by an amendment of the kind proposed. As explained above, if new Boston wishes to make a claim in quantum meruit, it will need to do so in fresh proceedings on a basis that is properly articulated. There is nothing on the material before me to show that any such claim is fairly arguable: Queensland v JL Holdings Pty Limited (1997) 189 CLR 146 at 154-155. I consider that the pleading and the material before me is so fundamentally flawed that I should not grant leave to amend. Because this is not a decision on the merits, it will be open to those advising new Boston to take further proceedings, if some can be formulated, which can articulate a cause of action which has reasonable prospects of success. I am of opinion that these proceedings should be dismissed. I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 16 October 2006 Counsel for the Applicant: Ms K Edwards Solicitor for the Applicant: Insight Litigation &amp; Legal Services Counsel for the Respondent: Mr JK Kirk Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 22 August 2006 Date of Judgment: 16 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1352.html