(2) Does Ms Luck require leave to appeal because the matter is interlocutory?
96 The primary judge's principal decision was made pursuant to s 31A(2) of the Federal Court of Australia Act. He found that Ms Luck had no reasonable prospect of successfully prosecuting the proceeding. As an alternative to her claim to appeal as of right Ms Luck sought leave to appeal from the primary judge's order that had been made under s 31A of the Federal Court of Australia Act. The University informed the Court that it consented to leave being granted if it were necessary.
97 The Parliament provided in s 24(1A) of the Federal Court of Australia Act that an appeal from an interlocutory judgment of a single judge of the Court shall not be brought unless another judge or the Court gives leave. The grant of leave to appeal is a jurisdictional condition that depends on the Court or a judge being satisfied that it is appropriate. Jurisdiction does not derive from consent of parties. It is important that the basis on which the Court's power to deal with a matter in its appellate jurisdiction be identified. If leave to appeal is required, the Court must be satisfied that the primary judge's decision is sufficiently doubtful to warrant the grant of leave and that substantial injustice would result if leave were refused: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.
98 These are important considerations going to the administration of justice by the Court not merely in this matter but generally: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400 per Sheppard, Burchett and Heerey JJ. As they said, the Parliament evinced a policy in s 24(1A) of the Federal Court of Australia Act against the bringing of interlocutory appeals except where the Court, acting judicially, finds reason to grant leave. And, their Honours pointed out that when the Court comes to exercise that discretion on a particular application, it has to have regard to the important distinction to be observed between an interlocutory decision given on a point of practice or procedure and an interlocutory decision determining a substantive right, where leave will be more readily granted: Décor 33 FCR at 399-400; see also Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ. Generally, unless some control is kept by the Court over the former category of interlocutory proceedings, litigants with considerable resources or litigious dispositions could at will transfer all exercises of discretion in interlocutory applications from a judge exercising the Court's powers summarily to dispose of litigation that ought never to have been instituted into substantive claims before a Full Court. Of course, each case must depend upon its own circumstances. Moreover, when the Court considers the question of the grant of leave to appeal, it will be attentive to the substantive context in which the primary judge determined the matter.
99 The finding by the primary judge here that the tribunal had no jurisdiction was not made at a final hearing, but on the basis of the power given under s 31A(2) of the Act. His Honour found that the application had no reasonable prospects of success. In the circumstances of a case like the present that finding is in substance, or analogous to, the dismissal of proceedings on the ground that they are frivolous, vexatious, an abuse of the process of the Court or do not disclose a reasonable cause of action. Such a dismissal is interlocutory: Re Luck (2003) 203 ALR 1 at 3-4 [9]-[12] per McHugh A-CJ, Gummow and Heydon JJ. Italicisation
100 In some situations, a decision to strike out a pleading as disclosing no reasonable cause of action may be arrived at in an area of law which is developing so as to provide a vehicle for the test of that question on appeal, before the parties are committed to an expensive trial. That may or may not avoid the need to deal with a theoretical, and thus irrelevant, issue: cp Agar v Hyde (2000) 201 CLR 552 at 577-578 [64]-[65] per Gaudron, McHugh, Gummow and Hayne JJ. In other cases, the proceedings will be so obviously hopeless that it would be an abuse of the process of the Court to permit them to proceed: Walton 177 CLR at 393. The Court must balance and assess any injustice that would result from the order sought to be appealed from, in determining whether or not leave ought be granted. In the present case the application to the primary judge was baseless and foredoomed to fail. It was an abuse of the process of the Court. It was properly dismissed summarily because it had no prospect of success. No injustice to Ms Luck could be occasioned by a refusal of leave in such a case: see Adam P Brown 148 CLR at 177.
101 In my opinion, a judgment or order under s 31A(2) that determines that an applicant has no reasonable prospect of successfully prosecuting a proceeding is interlocutory. I have held that s 31A requires a prediction of the outcome of a trial on the merits and is not an actual adjudication of those merits: Jefferson Ford 167 FCR at 388 [45]. I examined the nature of an order under s 31A in that judgment. I concluded that proceedings may still be dismissed or judgment given under s 31A on the ground that the claim or defence is hopeless or bound to fail, as well as on the express ground in the section that there is no reasonable prospect of successfully prosecuting or defending the proceeding.
102 In addition, I examined the legislative history of s 31A in Jefferson Ford 167 FCR at 391-392 [57]-[63]. I referred to the explanatory memorandum circulated by the Attorney-General for the Migration Litigation Reform Bill 2005 which became Act No 137 of 2005, by which s 31A was inserted into Federal Court of Australia Act. The explanatory memorandum suggested that the inclusion of the new section in the Act would strengthen the power of the Court "to deal with unmeritorious proceedings by broadening the grounds upon which a court could summarily dispose of the proceedings".
103 And, in White Industries Limited v Federal Commissioner of Taxation (2007) 160 FCR 298 at 310-312 [50]-[60], Lindgren J discussed the legislative history and purpose for enacting s 31A and its cognate provisions. He said, and I agree, that the intention of the Parliament in enacting s 31A:
"… was to lower the bar for obtaining summary judgment (including summary disposal) below the level that had been fixed by such authorities as Dey v Victorian Railways Commission (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130."
104 In Berowra Holdings Pty Limited v Gordon (2006) 225 CLR 364 at 371 [15] Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ said that once the procedural law had been engaged, all parties to the litigation were subject to it. They held that a defendant may challenge the strength of the plaintiff's alleged case at an interlocutory level by seeking to have a plaintiff's action struck out for failure to disclose a reasonable cause of action, or dismissed as incompetent. And, they observed that the invocation of jurisdiction ordinarily enlivens the authority of the Court in question, at least in the first instance, to determine whether it has jurisdiction: Berowra Holdings 225 CLR at 371 [16]. The test under s 31A is akin to those tests.
105 A number of Full Courts have now said in obiter dicta that an order under s 31A was interlocutory and leave was required under s 24(1A) to appeal from it. In Simundic v University of Newcastle [2007] FCAFC 144 at [12] and [14], Allsop, Lander and Siopis JJ said that an order under s 31A is interlocutory and that:
"The appellant's proceeding was dismissed because the primary judge found that the Court lacked jurisdiction, and therefore it followed that no reasonable cause of action was disclosed. The order dismissing the proceedings, however, is not a final order …." (Simundic [2007] FCAFC 144 at [12])
And, they held that the primary judge was right to dismiss the proceedings summarily under s 31A: Simundic [2007] FCAFC 144 at [21]. Ms Luck's proceedings before this Full Court are in the same category and are indistinguishable from the facts in Simundic [2007] FCAFC 144.
106 In Zoia v Commonwealth Ombudsman Department (2007) 240 ALR 624 at 627 [19] Spender J held that an order under s 31A was interlocutory and, in the absence of leave, an appeal was incompetent. French J, in agreeing, said that there would seem to be little doubt that such a judgment dismissing proceedings on the ground that there was no reasonable prospect of successfully prosecuting them was interlocutory, but whether interlocutory in form or not, it was final in substance and ordinarily the threshold to be crossed for obtaining leave to appeal against such a judgment was not high: Zoia (2007) 240 ALR at 629 [26]. Gilmour J agreed with Spender J. Their Honours applied the decision of McHugh A-CJ, Gummow and Heydon JJ in Re Luck (2003) 203 ALR 1: see too Cockrell v Minister for Immigration and Citizenship [2009] FCA 444 at [3]-[4] per Perram J.
107 Finkelstein J, who dissented, asserted in Jefferson Ford 167 FCR at 378-379 [10]-[13] that the previous decisions of Full Courts in Simundic [2007] FCAFC 144, Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179 and Zoia 240 ALR 624 could be ignored as not being a considered opinion or put to one side as having no precedential value. Gordon J agreed with that part of Finkelstein J's reasons: Jefferson Ford 167 FCR at 417 [173]. He did this because of cases in other courts to which he referred based on the English Rules of Court and some Australian analogues for summary judgment, first developed in the nineteenth century: Jefferson Ford 167 FCR at 377-378 [3]-[8].
108 The construction of s 31A must have regard to its legislative purpose as an evident expansion of the Court's powers. Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ in The Owners of The Ship "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 421 (citations omitted) said:
"It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words"
109 Subsequently, in Dent v Australian Electoral Commissioner (2008) 249 ALR 523 at 531 [28] French, Tamberlin and Mansfield JJ said obiter that they were not to be taken as endorsing the views expressed by Finkelstein J and Gordon J in Jefferson Ford 167 FCR at [2]-[13] and [159]-[191]. They noted that there were two Full Court decisions to the opposite effect, namely that a decision dismissing proceedings under s 31A was interlocutory and referred to Zoia 240 ALR 624 and Pham [2007] FCAFC 179. They also referred to my remarks in Jefferson Ford at 167 FCR at 386-319 [42]-[56]. Next, in Wills v Australian Broadcasting Corporation (2009) 173 FCR 284 at 290 [28]-[30], with Emmett J's express agreement, I observed that an order under s 31A determining that a claim or defence has no reasonable prospects of success is interlocutory. In my opinion, Finkelstein J and Gordon J should have followed the views expressed in the prior decisions of the other Full Courts on s 31A. No subsequent judgment on s 31A has suggested that their view should be followed.
110 In Jefferson Ford 167 FCR at 407-408 [128] Gordon J construed the word "may" in s 31A(1) and (2) as being used in its empowering sense, not in a discretionary sense. Her Honour demonstrated in that part of her reasons that once the moving party on a motion under s 31A had established that the other party had no reasonable prospect of successfully prosecuting or defending the claim or proceedings, the Court had to give the moving party the remedy it sought as provided in s 31A. In other words, once the Court had reached such a finding, the moving party was entitled to judgment in accordance with it. On the other hand, in Bonnell v Deputy Commissioner of Taxation (No 5) [2008] FCA 991 at [81], Graham J held that the word "may" in s 31A confers a discretion: see too Keynes v Rural Directions Pty Ltd (No 2) [2009] FCA 567 at [46]-[47] per Besanko J. It is not necessary to reach a final view on this issue in order to deal with this matter.
111 Nonetheless, the Court retains a discretion whether or not, and when, to entertain an application under s 31A. For example, it may be more appropriate to deal with the matter on a final basis. And, as Barwick CJ observed in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130:
"… great care must be exercised to ensure that under the guise of achieving expeditiously finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."
112 In arriving at the requisite state of satisfaction that the threshold in s 31A has been met to warrant relief being granted to the moving party, the Court necessarily exercises a judicial assessment. It makes an evaluation of the material before it, both of fact and law. The assessment which is made is, often, of the nature of a predictive judgment as to the outcome of the proceedings: see Jefferson Ford 167 FCR at 388 [45]. In other cases, the matter may be so clear that it requires no sense of prediction, but flows as a matter of law. The present is such a case.