Case: Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4 ; (2008) 82 ALJR 454
Outcome: considered
In Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4 ; (2008) 82 ALJR 454 at [39] , Gummow, Hayne, Heydon and Kiefel JJ said: As a general proposition, it may be accepted that legislation which purported to direct the courts as to the manner and outcome of the exercise of their jurisdiction would be apt impermissibly to impair the character of the courts as independent and impartial tribunals. (Footnote omitted.) 26 To the extent that the applicant's argument is based upon an assumption that s 31A directs the manner and outcome of the exercise of judicial power, it is misconceived. Parliament has legislated with respect to the procedure for summary dismissal of proceedings and expanded the basis on which proceedings can be dismissed. Section 31A lays down a general test. It is for the Court to apply the test to specific cases. The Court is not expressly directed as to the outcome of any application. Even if s 31A does "tilt the balance" in favour of a particular result, that does not fundamentally alter the Court's task. 29 Special leave to appeal to the High Court was refused. Gummow ACJ observed that the attack on the legislation must fail, on the basis of the proper construction adopted by the Court of Criminal Appeal. As the Full Court stated in Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 169 FCR 241 at [126] : The authorities make it clear that the first step in determining the constitutional validity of any law is to construe the statute under challenge. Where an interpretation can be taken that avoids rather than leads to a conclusion of invalidity, such an approach should be preferred (Gypsy Jokers [2008] HCA 4 ; 82 ALJR 454 , per Gummow, Hayne, Heydon and Kiefel JJ at [11]). 33 Section 31A confers a power on the Court to make a decision summarily that there is no reasonable prospect that, if a trial were to take place, the claim or defence would succeed. It is not an adjudication of the merits ( Jefferson Ford Pty Ltd v Ford Motor Company of Australia Pty Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 at [45] per Rares J). If s 31A were to limit or restrict admissible evidence in such a way as to influence or control the manner in which the Court decided a summary dismissal application, then the provision would be incompatible with the exercise of judicial power and thus invalid ( Gypsy Jokers at [108] per Kirby J; K-Generation Pty Ltd v Liquor Licensing Court (2007) 99 SASR 58 at [69] [73] per Duggan J). However, that is simply not the case. 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). 46 If it were the case that a mandatory construction of the section led to constitutional invalidity, the construction would be preferred that gave the Court a discretion to give judgment and thus avoid invalidity ( Gypsy Jokers at [11] per Gummow, Hayne, Heydon and Kiefel JJ). 47 Section 31A does not ' purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction ' ( Chu Kheng Lim at 37 per Brennan, Deane and Dawson JJ; Gypsy Jokers at [39] per Gummow, Hayne, Heydon and Kiefel JJ). It does not require or authorise the Court ' to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power ' ( Chu Kheng Lim at 27). It does not ' direct the exercise of judicial power in finding facts, applying law or exercising an available discretion ' ( Nicholas at [20] per Brennan CJ). Indeed, as the applicant points out, the giving of summary judgment is an inherent power of courts under the common law ( Nicholas at [14] per Brennan CJ). Section 31A does not impair the curial function of finding facts and applying the law any more than statutory prescription of the rules of evidence, which ' have traditionally been recognised as being an appropriate subject of statutory prescription ' ( Nicholas at [23] per Brennan CJ).