Case: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720
Outcome: considered
While the determination of an application under s 31A does not involve a judge conducting a full trial or fact finding exercise, an application under s 31A requires the judge to exercise his or her discretion, following an assessment of the case, including the evidence. As Rares J said in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 at [48] , ' the assessment of whether there is a reasonable prospect of successfully prosecuting the proceeding must depend upon the evidence and pleading the subject of the application '. 36 It cannot be said that s 31A is invalid as a law that directs the outcome or manner of the exercise of judicial power by precluding the admission of evidence. 37 The applicant relies upon the terms of the Federal Court Rules and amendments to those Rules in support of his argument. The applicant maintains that O 20 r 5 constitutes judicial legislation determinative of the substantive rights of the parties, which is impermissible. This is said to be because of the reference to s 31A in a note to that rule, which refers only to a prosecuting party and not to a defending party. 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)). 45 Despite the fact that there is some difference of opinion in the Court as to the precise test to be applied and as to whether a decision under s 31A is final or interlocutory, it is clear from the discussion in Boston Commercial and Jefferson Ford that it is for the judge to decide whether there are reasonable prospects of success. In doing so, the judge conducts an inquiry into the merits of the question in order to decide whether it is sufficiently strong to warrant a trial ( Jefferson Ford at [23] per Finkelstein J, at [74] per Rares J; Bond v Barry [2008] FCAFC 115 at [72] per curiam). That test and the matters to be considered in coming to a conclusion are not mandated by the legislature. That is the case whether or not it is mandatory ( Jefferson Ford at [128] [129] per Gordon J) or discretionary ( J F Keir v Sparks [2008] FCA 611 at [12] per Graham J) to give summary judgment once that assessment is made or whether the discretion is a general one ( Boston Commercial at [45] per Rares J) or limited by the circumstances of "no reasonable prospect of success" ( Jefferson Ford at [129] per Gordon J). The Court is still in the position of determining the facts and inferences to be drawn in deciding whether or not the test in s 31A has been satisfied in any given case. It is for the Court to decide whether the basis for summary judgment has been established ( Gypsy Jokers at [7] per Gleeson CJ).