Summary Judgment applications; Spencer v Commonwealth of Australia [2010] HCA 28 (1 September 2010)

September 10, 2010 |

The High Court’s decision in Spencer v Commonwealth of Australia is a useful consideration of the principles related to summary judgment applications.


Mr Peter Spencer has conducted a vigorous campaign in the public arena and through Federal Court litigation against land clearing legislation and the attendant regulations.  A very useful summation is found at the ABC Law Report site.   He commenced proceedings against the Commonwealth in the Federal Court alleging that the restrictions imposed upon land clearing by New South Wales legislation constituted an acquisition of property. Because those laws were enacted in furtherance of an agreement with the Commonwealth such acquisition was made for the purpose of obtaining land other than on just terms and, accordingly, in breach of section 51(xxxi) of the Constitution.  The primary judge dismissed Mr Spencer’s claim pursuant to Rule 31A of the Federal Court Rules, the summary judgment provisions (see pars [10] [13]).  The Full Court  dismissed Mr Spencer’s appeal (see [14] [16] for more detailed discussion).


The decision, while unanimous, was considered in separate judgments of French CJ and Gummow, that of Hayne, Crennan, Kiefel and Bell JJ and a short judgment of Heydon J.  Rule 31A provides:

“(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(4) This section does not limit any powers that the Court has apart from this section.”

Per Hayne, Crennan, Kiefel and Bell

Their Honours regarded the starting point of any enquiry is, at [52], whether “..there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.”  The no reasonable prospect test differs from earlier rules of procedure relating to summary judgment applications where the exercise was a determination as to whether a proceeding would necessarily fail ([53]) with the test “requiring certain demonstration of the outcome of litigation, not an assessment of the prospect of its success” [54].

Their Honours in posing the question of how the expression “no reasonable prospect” should be understood explicitly refused to define it or provide a paraphrase by way of explanation ([58]). Instead their Honours stated :

  • that in many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty” [59];
  • the word “reasonable”, in the phrase “no reasonable prospect”, is sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim [59];
  • the Federal Court can only exercise its summary judgment power “.if, and only if, satisfied that there is “no reasonable prospect” of success” [60];

Per French and Gummow

Their Honours undertook a detailed study of Rule 31A’s provenance (see [18][21]) and its distinction to strike out applications ([22][24]).

Their Honours stressed that in both summary judgment and strike out applications the exercise of power must always be attended with caution ([24]) and the court must apply a practical judgment in determining whether an applicant has more than a “fanciful” prospect of success ([25]).  In that context:

  • Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue [25];
  • Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter.
  • Given existing authority may be overruled, qualified or further explained summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of the High Court, the Federal Court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success [25];
  • Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution is warranted because it may be resolvable without conducting  mini trial [26];
  • The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact [25];


On one level Spencer is confined to the operation of Rule 31A of the Federal Court Rules. The rules are specific, distinct and differ from Rules 22 and 23 of the Victorian Supreme Court Civil Rules of Procedure or its equivalents in other jurisdictions.  That said their Honours comments on the general principles are relevant when preparing submissions in such applications.

Leave a Reply

Verified by MonsterInsights