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[2004] FCA 559
Federal Court of Australia
2004-05-07
Lander J
Original judgment source is linked above.
The Application before the Federal Magistrate 68 The respondent's application was for summary dismissal pursuant to r 4.04(1)(c) and r 13.10(a). Rule 4.04(1)(c) permits a respondent's response to ask the Court to dismiss the application. 69 Rule 13.10 provides: 'RULE 13.10 FRIVOLOUS PROCEEDINGS 13.10 The Court may order that a proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that in relation to the proceeding or claim for relief: (a) no reasonable cause of action is disclosed; or (b) the proceeding is frivolous or vexatious; or (c) the proceeding is an abuse of the process of the Court.' 70 The rule is in similar terms to O 20 r 2(1) of the Federal Court Rules which provides: ' 2 (1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding - (a) no reasonable cause of action is disclosed; (b) the proceeding is frivolous or vexatious; or (c) the proceeding is an abuse of the process of the Court; the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.' 71 The authorities under O 20 r 2(1) of the Federal Court Rules are relevant on a consideration of an application under r 13.10 of the Federal Magistrates Rules, although regard must be had to the very important differences to which I have already referred. 72 It is clear that an application under the Federal Court Rules for the summary dismissal of a proceeding will only succeed in the clearest of cases: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J. A court must proceed exceptionally cautiously. In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129, Barwick CJ said: 'It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".' 73 The need for caution must be even more obvious in the Federal Magistrates Court when considering an application to summarily dismiss a claim for failing to disclose a reasonable cause of action. That is for the reasons already mentioned. There are no pleadings. There is, therefore, no concise document from which one can easily discern the existence or otherwise of a cause of action. The applicant is not obliged to file all affidavit evidence with the application, but only an affidavit which need not be the applicant's. It could not have been intended that an application under r 13.10 would give rise to an obligation upon the applicant to produce all of the applicant's evidence in order to determine whether the applicant could disclose a reasonable cause of action. If that were the obligation, the hearing of the application would almost become the trial. 74 The Court, on hearing an application under FMC Rules 4.04(1)(c) and 13.10, could not be expected to weigh the evidence of the parties to determine whether the applicant had disclosed a reasonable cause of action. Again, that would amount to a trial of the action. What the applicant must disclose is a reasonable cause of action - not that on the evidence presently available the applicant will succeed on that cause of action. 75 In my view, because the FMC Rules do not require pleadings; the parties are not obliged to tender all their evidence when the application and response is filed; there are few, if any, interlocutory processes available; and the Federal Magistrates Court is a low cost court, the Federal Magistrates Court should be very cautious about summarily dismissing an applicant's proceeding. That course should only be adopted when it is clear, beyond any doubt, that the applicant has not, and cannot, articulate in writing a reasonable cause of action. As I have already said, the philosophy of the Federal Magistrates Court is to provide inexpensive justice and a streamlined dispute resolution process. Litigants will often be self-represented and the documents they rely on as founding their claim will no doubt often be imprecisely articulated. In those circumstances, there is even more reason for the Federal Magistrates Court to be cautious before summarily dismissing an applicant's claim. 76 The Federal Magistrate, on the hearing of the appellant's application, accepted that the factual background to the matter was most clearly set out in the decision letter from the Human Rights and Equal Opportunity Commission dated 1 August 2003 and said: '… I am satisfied that the history contained in this letter includes all the factors that would be relevant for consideration of a claim based (however loosely) on an alleged breach of either the Disability or the Racial Discrimination Act.' 77 In my opinion, that approach was in error. 78 It was not appropriate on this application to make any determination of the facts. 79 In my opinion, the Federal Magistrate was led into error by the way in which the respondent pursued its application to strike out the appellant's claim. The respondent relied upon the evidence contained in the solicitor's affidavit to establish that the appellant's claim lacked merit. The true inquiry is not whether the appellant's claim lacked merit, but whether the appellant's claim failed to disclose a reasonable cause of action. 80 There was, indeed, evidence to support the appellant's contention that he was able to do group work. His treating psychiatrist had advised the University that it was his opinion that the appellant was in a position to involve himself in group work. That opinion was offered on 20 September 2002, subsequent to the University's advice that the appellant's application for special entry into the course was declined and on the same day that the University advised the appellant that his ordinary entry was also declined. 81 The evidence also discloses that Professor Thorne wrote again to the appellant's treating psychiatrist after that date asking for further clarification of the matters raised in his opinion of 20 September and received a further reply from the treating psychiatrist of 11 November 2002. 82 There is no evidence as to how that further reply was treated by the University, either in relation to the ordinary application or the special entry application. 83 I only mention those matters for the purpose of showing that there was a real conflict on the evidence as to whether the appellant was capable of carrying out group work which the course demanded of its candidates. That matter could not be resolved on the application before the Federal Magistrate but the conflict was not a reason to dismiss the appellant's application. 84 In my opinion, the Federal Magistrate erred in accepting the respondent's invitation to summarily dismiss this matter. 85 At the very least, if the Federal Magistrate was unsatisfied with the quality of the affidavit evidence supporting the appellant's application, he should have allowed the appellant a further opportunity to adduce evidence to show a reasonable cause of action. 86 Instead, he simply struck out the whole of the matter. 87 In my opinion, the appellant has shown that the decision complained of is wrong. In those circumstances, there should be an order extending the time within which the appellant has to apply for leave to appeal. There should be an order granting the appellant leave to appeal. The appeal should be allowed and the matter remitted to the Federal Magistrates Court for hearing. 88 I therefore make the following orders: 1. The time within which the appellant might apply for leave to appeal is extended to 3 February 2004. 2. Leave to appeal from the order of the Federal Magistrate made on 21 November 2003 is granted. 3. The appeal is allowed. 4. The matter be remitted to the Federal Magistrates Court for further hearing. I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.
Counsel for the Appellant: The Appellant appeared in person
Rana
University of South Australia
Is leave to appeal required? 6 The first question then to be determined is whether leave to appeal is required. 7 The application which the Federal Magistrate heard and determined was an application by the respondent, pursuant to r 4.04(1)(c) and r 13.10(a) of the Federal Magistrates Court Rules (FMC Rules), to summarily dismiss the appellant's application. 8 Section 24(1A) of the Federal Court Act provides that an appeal shall not be brought from, inter alia, a judgment of the Federal Magistrates Court that is an interlocutory judgment, unless the Court or a judge gives leave to appeal. 9 The respondent has contended that the Federal Magistrate's decision upholding that application is an interlocutory judgment and, as a result therefore, leave is required. 10 In my opinion, the respondent's contention is correct. The order made by the Federal Magistrate is an interlocutory judgment. In Hunt v Allied Bakeries Ltd (1956) 3 All ER 513 at 514, Lord Evershed MR said: 'After consulting with the Chief Registrar and looking at the cases, and also after consultation with my colleagues, I am left in no doubt at all that, rightly or wrongly, orders dismissing actions - either because they are frivolous and vexatious, or on the ground of disclosure of no reasonable cause of action - have for a very long time been treated as interlocutory.' 11 In Hall v Nominal Defendant (1966) 117 CLR 423 at 440, Taylor J referred to the rule in England that an order striking out a claim on the ground that it was frivolous, vexatious or an abuse of process, or that it disclosed no cause of action, was interlocutory in nature. 12 In Tampion v Anderson (1974) 48 ALJR 11, the Judicial Committee of the Privy Council approved the dicta of Lord Evershed in a case in which an applicant was seeking leave to appeal to the Privy Council from a decision of the Supreme Court of Victoria staying an action on the ground that the action was frivolous, vexatious and an abuse of process. 13 The decision of the Privy Council in Tampion v Anderson was approved by three Justices of the High Court in In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70 at [6]-[11]. 14 In Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [43], French J (with whom Beaumont and Finkelstein JJ agreed) said: 'If a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory.' 15 In my opinion, it is beyond doubt, having regard to the decisions to which I have referred, that the Federal Magistrate's decision was an interlocutory judgment and leave is required.
The principles on an application for leave to appeal 16 The matters to be considered on an application for leave to appeal were referred to in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 which generally approved the decision of the Full Court of the Supreme Court of Victoria in Niemann v Electronic Industries Ltd [1978] VR 431. In that decision, the Victorian Full Court decided that the principles governing the grant or refusal of leave were as follows: (1) whether in all the circumstances the decision is attended by sufficient doubt to warrant it being reconsidered by the appellate court; and (2) whether substantial injustice would result if leave were refused supposing the decision to be wrong: at 433. 17 The Full Court of the Federal Court in Décor Corporation said of that decision at 399: 'In our opinion, the principles discussed in Niemann and in the other cases to which we have referred provide general guidance which a court should normally accept. However, there will continue to be cases raising special considerations, and the court should not regard its hands as tied in any case beyond this; that by s 24(1A) [of the Federal Court Act] the legislature has evinced a policy against the bringing of interlocutory appeals except where the court, acting judicially, finds reason to grant leave. When the court comes to exercise its discretion on a particular application, an important distinction to be observed is that between the common interlocutory decision on a point of practice - concerning which the High Court has given (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177) a strong warning that "a tight reign" should be kept on appeals - and an interlocutory decision determining a substantive right - where leave will more readily be granted.' 18 I should, therefore, determine whether the decision complained of is attended by sufficient doubt to warrant me hearing the appeal and, if so, whether substantial injustice would result if I refused leave.
(1966) 117 CLR 423
(1974) 48 ALJR 11
(2000) 104 FCR 564
(1991) 33 FCR 397
(1959) 103 CLR 341
(1916) 22 CLR 490
(1949) 78 CLR 62
(1964) 112 CLR 125
(1981) 148 CLR 170