Case: Swain v Hillman [2001] 1 All ER 91
Outcome: considered
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 the Queensland Court of Appeal considered rr 292 and 293 of the Uniform Civil Procedure Rules 1999 (Qld) and Pt 24 of the Civil Procedure Rules (Eng) which had come into force in England and Wales in 1999. Williams JA (with whom McMurdo P at [1] and Atkinson J at [46]-[47] agreed) held that the approach adopted by Lord Woolf MR in Swain v Hillman [2001] 1 All ER 91 at 92 was appropriate. The Master of the Rolls said (at [11]): 'The words "no real prospect of being successful or succeeding" do not need any amplification, they speak for themselves. The word "real" distinguishes fanciful prospects of success or ... they direct the court to the need to see whether there is a "realistic" as opposed to a "fanciful" prospect of success.' Lord Hope discussed the scope of the enquiry occasioned by the English Rule saying ([2003] 2 AC at 260-261 [95]). He said, of a provision which was like s 31A, that it operates as an exception to the normal method by which issues of fact are tried in our courts: namely that once processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. However, if it were clear as a matter of law at the outset that even if a party was to succeed in proving all the facts that he, she or it offered to prove, the party would not be entitled to the remedy that was sought, then in such a case a trial of the facts would be a waste of time and money and it would be proper that action should be taken out of the court as soon as possible. Lord Hope instanced that in other cases it could be possible to say with confidence before trial that the factual basis for the claim was fanciful because it was entirely without substance. He said: 'It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgement. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, at p 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.' Lord Hobhouse noted that the English rule required the judge to undertake an exercise of judgment. He emphasised that the power was a discretionary one, being one where the choice the judge has is whether to exercise the power or not based on, ultimately, the judge's ultimate assessment of its appropriateness having regard to the prospects of success of the relevant party ([2003] 2 AC at 282 [158]). He said that under the rule: '... the judge is making an assessment not conducting a trial or fact-finding exercise. Whilst it must be remembered that the wood is composed of trees some of which may need to be looked at individually, it is the assessment of the whole that is called for. A measure of analysis may be necessary but the "bottom line" is what ultimately matters. ... The criterion which the judge has to apply under Part 24 is not one of probability; it is absence of reality.' He went on to note that the judge's assessment had to start with the relevant party's pleaded case but that the inquiry did not end there. He said that the allegations could be legally adequate but may have no realistic chance of being proved. On the other hand, Lord Hobhouse noted, the limitations in the allegations pleaded, alongside any lack of particularisation, may show that the party's case was hopeless ([2003] 2 AC at 284 [161]). Although Lord Hobhouse and Lord Millett were in dissent, I do not think that their identification of the principles was different to those expressed by the majority (Lord Steyn, [2003] 2 AC at 237 [1], agreed with Lord Hope and Lord Hutton, and see [2003] 2 AC at 265 [111] per Lord Hutton).