Case: Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279
Outcome: discussed
The legal principles that govern the exercise of the Court's discretion under this rule have been discussed in a number of recent cases, and are well established: see Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 (' Bass' ) at 355-359; Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 (' Tepko' ) at 55; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 (' Reading' ) at 497-500 [7]-[11]; Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia [2005] FCA 1002 ( 'Direct Factory Outlets' ) at [2]-[4]; Souflett Beheer v AWB Limited [2004] FCA 518 ( 'Souflett Beheer' ) at [19]-[20]; Kockums AB v Commonwealth [2002] FCAFC 138 at [38] - [41] ; SmithKline Beecham (Aust) Pty Ltd v Chipman [2002] FCA 674 (' SmithKline' ) at [35]-[39]; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14 (' Diageo' ) at [22]-[27]; Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97 ( 'Save the Ridge' ) at 103-104 [15]-[17]; Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 (' Rainsford' ) at 291-294 36-44; Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98 ; (2001) 109 FCR 488 ( 'Director of Fisheries' ) at 521 [139] and 526-527 [163]; and Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 (' Tallglen' ) at 141-142. 34 In Bass at 359 [56], the High Court said that it would be contrary to the judicial process and no part of the judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case. The Full Federal Court applied this principle in Rainsford at 291 [36] and Director of Fisheries at 526 [163]. In Rainsford at 291 [36], Kenny J said that, in order for a court exercising federal jurisdiction to utilise the separate questions procedure, either the parties must agree on the relevant facts or the court must determine the facts before deciding the question. 40 In Rainsford , Kenny J pointed out at 292 [39] that there is a clear difference between the separate questions procedure under O 29 r 2 and an application under O 20 r 2 for the summary dismissal of a proceeding or a cause of action: in the latter case, the issue would be whether the claim is so obviously untenable that it cannot possibly succeed: see General Steel Industries Ltd v Commissioner for Railways [1964] HCA 69 ; (1964) 112 CLR 125; and Australian Ocean Line Pty Ltd v West Australian Newspapers Limited (1983) 47 ALR 497 at 499 per Toohey J. 41 In my opinion, the application of the foregoing legal principles leads inexorably to the conclusion that the Commonwealth's application under O 29 r 2 must be dismissed. I have concluded that it would not be just and convenient to make any of the orders sought by the Commonwealth under O 29 r 2. Indeed, I am satisfied that it would be inappropriate to do so. 42 My reasons for so concluding are set forth below. They address in turn matters which are discretely relevant to questions 1.1 and then 1.2, before canvassing matters which are relevant to both questions.