May 17, 2016
In Golden Taste Investment Pty Ltd v Laurence & Ors  VSC 250 Derham AsJ considered the plaintiff’s application for summary judgment under section 63 of the Civil Procedure Act 2010.
The plaintiff is the master franchisee for the Cacao Green and Red Mango franchises for Australia and operates retail stores in Victoria selling frozen yogurt and coffee products .
The first defendant (‘Daniel’) was a director and Read the rest of this entry »
May 26, 2011
In three rulings relating to group proceedings issued under Part 4 of the Supreme Court Act Forrest J considered an application to regularise proceedings and an application to dismiss on the basis of an abuse of process in Matthews v SPI Electricity Pty Ltd Ruling Nos 1 and, Cohen v State of Victoria & Ors (No 2) and in Matthews v SPI Electricity Pty Ltd Ruling Nos 2 an application for summary judgment and to strike out aspects of the statement of claim.
The claim in Matthews arose out of the Black Saturday bush fires. The firm Oldham Naidoo (“Naidoo”) issued proceedings in the name of a Mr Keane for damages against SPI amongst others. Naidoo did not have instructions from Mr Keanne to issue the proceedings in his name. Keane asked Naidoo to remove him as a plaintiff, something that did not happen for another year. Matthews then replaced Keane as representative plaintiff. After Maurice Blackburn took over conduct of the proceeding it brought Naidoo’s actions to the attention of the court and applied to regularise the proceedings. The defendants resisted the application and sought variously to strike out the claim and obtain summary judgment.
In Cohen Naidoo issued a group proceeding in Dr Cohen’s name without his knowledge. Naidoo sought but failed to find a person to be substituted for Cohen. There had been a substantial history of amendments to the statement of claim. The court considered the application to strike out the proceeding as an abuse of process.
Ruling nos 1
Lack of authority in a solicitor issuing a proceeding – does it render it a nullity
In opposing the application to regularise the proceeding SPI submitted Read the rest of this entry »
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  – ). The Full Court dismissed Mr Spencer’s appeal (see  –  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 , 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 () with the test “requiring certain demonstration of the outcome of litigation, not an assessment of the prospect of its success” .
Their Honours in posing the question of how the expression “no reasonable prospect” should be understood Read the rest of this entry »