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

FACTS

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).

ISSUES

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 Read the rest of this entry »

Two decisions of the Supreme Court last week, provide a very detailed and useful analysis regarding applications to set aside a subpoena and a summonses.  In Burchell & Anor v Hill & Ors a non party sought to set aside a subpoena issued under Rule 42A.01.    In Re Bill Express Limited (in liq) , the applicant, appealing from a decision of Gardiner AsJ,  sought to set aside a liquidator’s summons for production.

Burchell & Anor v Hill & Ors

Facts

The plaintiff issued a subpoena to the National Australia Bank Limited, a non party. The NAB objected to Read the rest of this entry »

In Blackman & Ors v Gant & Anor Vickery J considered a very interesting no case application by the Second Defendant.  This is a case that has drawn considerable press coverage, including in the Australian and the Age.

FACTS (pars 4 – 11)

The Plaintiffs are the artist Charles Blackman and his trustee, Robert Dickerson.  The Second Defendant is Peter Gant, an art dealer.  Gant originally supplied three works of art to a Helen Stewart , another art dealer, together with two valuations of the works.  She was the former First Defendant.  Stewart sold the works to a a Robert Blanche, giving him a copy of the valuations.  The evidence is that Blanche relied upon one of the valuations when purchasing the works and used the other for insurance valuation purposes.  When, later, Blanche was advised that the works were not authentic he returned them to Stewart who refunded his money.  Stewart then returned the works to Gant.   The Second Defendant maintains the works are authentic.  The issue before Vickery J was confined to the Second Defendant’s no case application.

ANALYSIS

The Plaintiffs claim, at [12], that the valuations impliedly represent that the works were authentic and consequently a breach of Read the rest of this entry »

Its raining Calderbank offers!  In three separate and unrelated decisions last week  the Supreme Court considered both the body of relaw relating to Calderbank Offers and their application to the facts.

Sanelli v Sanelli & Anor

Mukhtar AsJ in Sanelli considered a very full throated application by the plaintiff for indemnity costs.  At [29] Mukhtar AsJ Read the rest of this entry »

In my experience there is a growing tendency of legal representatives copying letters to their opposing numbers to the court when there is a judge allocated to a proceeding.  The Internet makes that feasible and an easy operation.  There is also a tendency to correspond with a judge’s associate, copying the other side.  Both practices are fraught.  Courts try to be flexible and the assistance by some associates in facilitating consent orders is a terrific example of marrying technology with being responsive to parties needs.  The cost and time savings in not having to attend to get an adjournment or the worry in whether a fax has got to the court in time to adjourn a date off is significant.

But there is a limit and there is propriety………….and Singh v Secretary, Department of Employment and Workplace Relations is a salutory lesson in overstepping the line.  

The Full Court’s commentary Read the rest of this entry »

The bane of a litigators life is an unrepresented litigant.  Another burr under the saddle is a corporation represented by an officer.   Unrepresented litigants, with a few notable exceptions, often put arguments that are exciting to make but not relevant.  That is not to say lawyers are free of running ridiculous points.  A few appearances before an overworked judge usually cures an advocate of running silly points.

In Worldwide Enterprises Pty Ltd v Silberman & Anor Forrest  J  heard an appeal by defendants seeking to stay the pleading under Rule 1.7 of hte Supreme  Court Rules until the plaintiff engaged solicitors.  The Defendant also sought security for costs.

Representation Read the rest of this entry »

The Opes Prime collapse is the gift that keeps on giving, litigation and judicial decision wise at least.  Finkelstein J, the judge assigned to the proceeding, has handed down a number of decisions involving the initial insolvency and now the class action. Given the “no quarter” approach that seems to be taken by the parties at this early interlocutory stage more decisions are likely in the future, well before trial.  This decision arose out of an application by the respondents to strike out the statement of claim or summarily dismiss the proceeding. Finkelstein J took the opportunity to review the general principles.

Strike out application (paragraphs 4 – 5,  8 & 10).

Features of a strike out application are: Read the rest of this entry »