Mainella v Commonwealth of Australia
[2013] FCA 1193
•13 November 2013
FEDERAL COURT OF AUSTRALIA
Mainella v Commonwealth of Australia [2013] FCA 1193
Citation: Mainella v Commonwealth of Australia [2013] FCA 1193 Parties: ALESSIA MAINELLA v COMMONWEALTH OF AUSTRALIA File number: ACD 97 of 2013 Judge: FOSTER J Date of judgment: 13 November 2013 Catchwords: INDUSTRIAL LAW – whether an applicant for a potential ongoing position in the Australian Public Service is entitled to compel the Commonwealth or the Agency Head of the Australian Taxation Office to offer her employment merely because her application was approved by the relevant vacancy delegate – whether the applicant was “engaged” by the Australian Taxation Office within the meaning of s 22 of the Public Service Act 1999 (Cth) – whether the applicant’s case should be summarily dismissed Legislation: Federal Court of Australia Act 1976 (Cth), s 31A
Judiciary Act 1903 (Cth), s 39B
Public Service Act 1999 (Cth), s 20, s 22
Federal Court Rules 2011, r 26.01Cases cited: Singh v Super City Home Loans Pty Ltd [2011] FCA 646 cited
Spencer v Commonwealth (2010) 241 CLR 118 appliedDate of hearing:
8 November 2013
Place:
Sydney (via video link to Canberra) (heard in Canberra)
Division:
GENERAL DIVISION
Category:
Catchwords
Number of paragraphs:
38
Advocate for the Applicant:
Ms C Weeks
Counsel for the Respondent:
Mr WL Sharwood
Solicitor for the Respondent:
Norton Rose Fulbright Australia
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 97 of 2013
BETWEEN: ALESSIA MAINELLA
ApplicantAND: COMMONWEALTH OF AUSTRALIA
Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
13 NOVEMBER 2013
WHERE MADE:
SYDNEY (VIA VIDEO LINK TO CANBERRA)
THE COURT ORDERS THAT:
1.The Applicant’s Interlocutory Application filed on 1 November 2013 be dismissed.
2.The proceeding be wholly dismissed.
3.The applicant pay the respondent’s costs of and incidental to this proceeding.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 97 of 2013
BETWEEN: ALESSIA MAINELLA
ApplicantAND: COMMONWEALTH OF AUSTRALIA
Respondent
JUDGE:
FOSTER J
DATE:
13 NOVEMBER 2013
PLACE:
SYDNEY (VIA VIDEO LINK TO CANBERRA) (HEARD IN CANBERRA)
REASONS FOR JUDGMENT
In this proceeding, the applicant claims against the respondent (the Commonwealth) that she has a legally enforceable right to be employed by the Commonwealth as an ongoing Australian Public Service (APS) employee. She claims declaratory relief and an order in the nature of mandamus requiring the Commissioner of Taxation to offer to employ her.
Although, when she commenced this proceeding, the applicant sued both the Commonwealth and the Commissioner of Taxation, by an Amended Originating Application dated 21 October 2013 and filed on 23 October 2013, the applicant removed the Commissioner of Taxation as the second respondent. For present purposes, I do not need to consider whether the applicant should also have sought leave to discontinue against the Commissioner of Taxation or, alternatively, should have sought an order for dismissal as against him. For present purposes, the parties accept that the Commissioner of Taxation is no longer a party to this proceeding.
By Interlocutory Application filed on 1 November 2013, the Commonwealth claims an order summarily dismissing the whole of the applicant’s claim pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) or, in the alternative, pursuant to r 26.01 of the Federal Court Rules 2011 (FCR). The Commonwealth contends that the applicant has no reasonable prospect of successfully prosecuting the proceeding, that no reasonable cause of action is disclosed, that the proceeding is frivolous or vexatious and that the proceeding is an abuse of the process of the Court.
By Interlocutory Application filed on the same day (1 November 2013), the applicant seeks directions designed to ready the matter for hearing. She also claims certain declaratory and interlocutory injunctive relief.
These Reasons for Judgment determine both Interlocutory Applications.
I shall deal with the Commonwealth’s Interlocutory Application first since, should I be of a mind to accede to that application, it will be unnecessary to address the applicant’s Interlocutory Application.
THE APPLICANT’S CLAIMS
The applicant commenced this proceeding on 20 September 2013 by the filing of an Originating Application for relief under s 39B of the Judiciary Act 1903 (Cth) and an accompanying Statement of Claim. At that time, there were two respondents named in the applicant’s Originating Process, viz the Commonwealth and the Commissioner of Taxation.
At the time she commenced this proceeding, the applicant also filed an affidavit sworn by her on 11 August 2013.
The applicant’s case, as disclosed in her Statement of Claim and affidavit, may be summarised as follows:
(a)Since February 2011, the applicant has been employed as a non-ongoing employee on a casual basis in the Australian Taxation Office (ATO) in Hobart.
(b)On 11 October 2012, the ATO placed an advertisement in the Australian Public Service Gazette No PS41 (at p 139). The advertisement was headed “Employment Opportunity N.N.10586210”. The job type was described as “Ongoing Full-time”. The job title was designated “Outbound Customer Service Officer (expected employment opportunity)”. The classification was designated “APS Level 4”. The advertisement stated that it related to several positions. The duties of the position specified in the Job Description in the advertisement were:
As an APS 4 Outbound Customer Service Officer you will undertake a range of more complex procedural, operational and administrative activities in accordance with their work area requirements and team plans. They will have extensive client and stakeholder contact in a multi-channel environment as well as provide on the job formal training for team members to ensure quality standards are met.
The advertisement stated that the locations of the positions the subject of the advertisement were Albury, Chermside, Dandenong and Hobart.
(c)The applicant submitted an application for one of the advertised positions, believing that she possessed the relevant skills and knowledge. Presumably, she applied for the advertised position referrable to Hobart.
(d)The applicant did not receive any offer of employment. Subsequently, she made enquiries with a view to ascertaining the reasons why she had not received any offer of employment.
(e)The applicant obtained a redacted copy of an ATO report styled “Streamlined Recruitment Selection Advisory Committee Report” (SAC report) in respect of the positions advertised by the ATO on 11 October 2012 to which I have referred at subpar (b) above.
(f)The SAC report documents a 10-step process undertaken by the ATO internally in respect of the advertised positions. The applicant points to material at Step 7 in the SAC report (which step is described as “Recommendation to vacancy delegate”) which is in the following terms:
As the Chair of the Selection Advisory Committee for the advertised position of APS 4, Outbound Customer Service Officer consisting of [14] vacant positions, I recommend that the employment decisions for the preferred candidates identified in table A be approved:
Table A
Preferred candidate(s)
NameEmployment Decision
RecommendationPosition No Location Alessia Mainella Promotion 1072764 Hobart
(g)Table A at Step 7 contained 14 names. The applicant’s name is the last name in Table A. At Step 7, the Chair of the selection advisory committee (SAC) confirmed that, in making the SAC’s recommendation, the selection process complied with the APS requirements for an engagement, promotion or transfer in the APS.
(h)Steps 8, 9 and 10 in the SAC report are in the following terms:
Vacancy delegate decision Step 8
As the delegate for the advertised position of APS4, OUTBOUND CUSTOMER SERVICE OFFICER, I agree with the recommendations made by the Chair of the Selection Advisory Committee and approve the employment decision(s) for the candidate(s) identified in Table A.
In approving the employment decision(s) I confirm that:
xI am satisfied that the Selection Advisory Committee complied with the requirements to provide me with the employment decision recommendations.
xI have received confirmation that the candidates have had internal integrity checks completed, and I have addressed any identified issues.
Delegate name: Pam Johnson
Position number: 100937
Job title: Director, Client Account Services
Date approved: 04/12/12Recommendation to vacancy delegate – merit list Step 9
A [sic] the chair for the advertised position of APS4, OUTBOUND CUSTOMER SERVICE OFFICER, I recommend to the vacancy delegate that the candidate(s) who were assigned a suitability rating of ‘highly suitable’ and ‘suitable’, and whose details appear in the Candidate Assessment Result Template (CART) are now available to be placed onto an ATO Merit List.
In making this recommendation I confirm as the Chair that the selection process complied with the requirements for an engagement, promotion or transfer.
Chairs name: Robert Green
Chairs position number: 00103761
Chairs job title: Senior Business Analyst
Date sent to the delegate: 26th November 2012.Vacancy delegate recommendation – merit list Step 10
As the vacancy delegate for the advertised position of APS4, OUTBOUND CUSTOMER SERVICE OFFICER, I recommend to the Assistant Commissioner Workforce and Employee Services ATO People that the candidate(s) who were assigned a suitability rating of ‘highly suitable’ and suitable’ and whose details appear in the Candidate Assessment Result Template (CART) are now available to be placed onto an ATO Merit List.
In making this recommendation I confirm as the vacancy delegate that the selection process complied with the requirements for an engagement, promotion or transfer.
Delegate name: Pam Johnson
Position number: 100937
Job title: Director, Client account ServicesDate approved 04/12/12
(i)The applicant contends that, once the internal process within the ATO reached Step 8, she had a legally enforceable entitlement to be offered employment in accordance with the approval given by the vacancy delegate set out at Step 8 of the SAC report. She contends that the Commonwealth (and the Commissioner of Taxation) breached their statutory duty. For this reason, she initially claimed a declaration that the Commonwealth and the Commissioner of Taxation had breached their statutory duty by failing to implement the vacancy delegate’s decision embodied in Step 8 of the SAC report, an order in the nature of mandamus requiring the Commissioner of Taxation to implement that decision, compensation and costs.
After the proceedings were commenced, the solicitors representing the Commonwealth and the Commissioner of Taxation wrote to the applicant’s solicitor pointing out deficiencies in the applicant’s pleaded case.
When the matter was first returned before me, Counsel who appeared for the respondents on that occasion foreshadowed an application either to strike out the applicant’s Statement of Claim or for summary dismissal of her case. In light of that indication, I granted leave to the applicant to amend her Originating Process and Statement of Claim in such manner as she may be advised.
On 23 October 2013, the applicant filed an Amended Originating Application. By that Application, she removed the Commissioner of Taxation as a respondent party and sought the following relief:
On the grounds stated in the statement of claim and accompanying affidavit, the Applicant applies for the following relief under section 39B of the Judiciary Act 1903:
1. A declaration that the Commissioner of Taxation, being an officer of the Commonwealth and acting is his capacity as Head of the Agency called the Australian Taxation Office, breached section 10(1)(b) of the Public Service Act 1999 (Cth) in that he failed or refused to implement the decision of his delegate made on 4 December 2012 to engage the applicant in position number 1072764 in the Australian Taxation Office in Hobart.
2.A declaration that the Commissioner of Taxation breached clause 2.3 of the Public Service Commissioner’s Directions 1999 (Cth) in that he failed or refused to ensure that the relevant selection process for the positions advertised in the APS Employment Gazette on 11 October 2012 was transparent and was applied fairly to the Applicant.
3. A declaration that the Commissioner of Taxation breached his statutory duty in that he failed or refused to notify the engagement decision of 4 December 2012 in the APS Employment Gazette as required:
(a) from the date of the engagement decision until 30 June 2013, by regulations 3.12(1A) and 3.12(1)(a) of the Public Service Regulations 1999; and
(b) from 1 July 2013, by clause 2.29(1)(a) of the Public Service Commissioner's Directions 2013.
4. An order of mandamus requiring the Commissioner of Taxation to:
(a) do all things proper and necessary to implement the the [sic] engagement decision; and
(b) notify the engagement decision in the Public Service Gazette within 30 days of the date of this Order.
5. An order that the Respondent pay the costs of the Applicant on an indemnity basis.
On 22 October 2013, the applicant endeavoured to file with the Registry of the Court a document entitled “Withdrawn Statement of Claim”. That document comprised the applicant’s Statement of Claim with all of its content ruled through. That document was not accepted for filing. It seems that, by endeavouring to file this document, the applicant was seeking to proceed upon the basis of her Amended Originating Process and such affidavits as she might file and not upon the basis of the pleaded case embodied in her Statement of Claim.
At the same time, the applicant abandoned any claim for compensation.
CONSIDERATION
It is common ground between the applicant and the Commonwealth that no offer of employment was ever made by the Commonwealth or the Commissioner of Taxation to the applicant consequent upon her application for one of the positions advertised on 11 October 2012 in the manner which I have described at [9(b)] above. It is also common ground between the applicant and the Commonwealth that no contract of employment has arisen as between the Commonwealth or the Commissioner of Taxation or both, on the one hand, and the applicant, on the other hand, in respect of any of those positions.
The applicant’s case is that she has a legally enforceable right to compel the Commissioner of Taxation or the Commonwealth to offer to employ her in one of the advertised positions (probably the position in Hobart) because, upon the true construction of the relevant legislative provisions and regulations, coupled with the conduct of the ATO reflected in the SAC report, she is entitled to compel the Commonwealth and the Commissioner of Taxation to offer her one of the advertised positions.
Counsel for the Commonwealth submitted that the mere fact that the ATO had gone through an internal process which culminated in the applicant’s name being placed on the list of names which appears in Table A of the SAC report did not give rise to any enforceable right at the suit of the applicant. He submitted that the process undertaken by the ATO had not reached the point where the applicant had any enforceable entitlement. In addition, he submitted that, as framed, the order in the nature of mandamus sought by the applicant was sought against the Commissioner of Taxation who was no longer a party to the proceeding. For that reason alone, so it was submitted, the applicant could not obtain that order.
The solicitor for the applicant directed my attention to the Australian Public Service Recruitment Guidelines: Operational Guidelines for Agencies (the guidelines) which provides guidelines in respect of the process that should generally be undertaken when a Commonwealth Public Service agency is seeking to engage a new employee. To some extent, those guidelines reflect legislative requirements contained in the Public Service Act 1999 (Cth) (the PS Act) and regulations made thereunder.
In very broad terms, when a Commonwealth agency wishes to fill a particular employment position, that agency is obliged to advertise the position in the Public Service Gazette. In cases where members of the public may be eligible to apply for the position, external advertising is required. The guidelines are quite prescriptive as to the form which the advertising should take. Applicants for the advertised position must then lodge a formal application with the relevant agency.
Although not mandatory, the most common assessment method adopted across the APS is to establish a selection panel (also known as a selection committee, selection advisory committee and assessment panel or selection team). Once established, the selection panel assesses the applications received by the relevant agency and makes a recommendation or recommendations in respect of the advertised position. Commonly, the selection panel describes the selection process in some detail when reporting to the Head of Agency or to his or her delegate.
The recommendations of the selection panel are then communicated to a delegate of the head of the relevant agency. Under s 20 of the PS Act, an Agency Head, on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of APS employees in the agency, including the rights, duties and powers that are prescribed by the regulations made under the PS Act.
The delegate then decides whether to accept or reject the recommendations of the selection panel. If the delegate accepts the selection panel’s recommendations, the agency is then permitted to proceed to engage, promote or transfer the successful applicant. The guidelines contemplate that the “engagement” occurs only after the delegate has approved the selection panel’s recommendations. Those guidelines do not contemplate that the delegate’s approval will effect the engagement.
In practice, an appropriate person within the agency will then contact the successful applicant and inform that person that his or her application has been successful. Provided that the successful applicant remains willing to take up the relevant position, a formal offer is then made. That offer is generally in the form of a letter which will contain very detailed terms of engagement. Once a successful applicant accepts the formal offer made by the agency, the engagement will come into effect. Notification of an engagement must then be published in the Public Service Gazette within three months after the engagement has been effected.
It is apparent from the brief summary which I have given of the relevant guidelines and practices within the APS that, in the present case, those practices were followed up to the point where the relevant delegate approved the “promotion” of the applicant. In the circumstances of this case, bearing in mind that the applicant was a non-ongoing casual employee at the time that decision was made, the employment decision which was approved ought to be understood to be a decision to engage the applicant, not to promote her.
For reasons which are left unexplained in the evidence at the moment, the applicant was never subsequently contacted by the ATO and no offer (either informal or formal) of full-time permanent employment was ever made to her.
The solicitor for the applicant submitted that, when the vacancy delegate approved the SAC’s recommendations at Step 8 in the SAC report, the vacancy delegate, on behalf of the Commonwealth and as a delegate of the Commissioner of Taxation, engaged the applicant as an employee of the Commonwealth for the purposes of the ATO within the meaning of s 22(1) of the PS Act. She submitted that the vacancy delegate was authorised by the Commissioner of Taxation to make the final decision in relation to the recommendations of the SAC in the present case. She submitted that the vacancy delegate had approved the committee’s recommendations when she authorised the taking of Step 8 as documented in the SAC report. She went on to submit that the vacancy delegate’s decision approving the SAC’s recommendations was a decision that could be enforced by the applicant against the Commonwealth and against the Commissioner of Taxation.
At all relevant times up to 1 July 2013, s 22 of the PS Act was in the following terms:
22 Engagement of APS employees
(1)An Agency Head, on behalf of the Commonwealth, may engage persons as employees for the purposes of the Agency.
(2)The engagement of an APS employee (including an engagement under section 72) must be:
(a) as an ongoing APS employee; or
(b) for a specified term or for the duration of a specified task; or
(c) for duties that are irregular or intermittent.
(3)The usual basis for engagement is as an ongoing APS employee.
(4)The regulations may limit the circumstances in which persons may be engaged as mentioned in paragraph (2)(b) or (c).
(5)An engagement for a specified term may be extended, subject to any limitations prescribed by the regulations.
(6)The engagement of an APS employee (including an engagement under section 72) may be made subject to conditions notified to the employee, including conditions dealing with any of the following matters:
(a)probation;
(b)citizenship;
(c)formal qualifications;
(d)security and character clearances;
(e)health clearances.
(7)Subsection (6) does not, by implication, limit the conditions that may be applied to the engagement of an APS employee.
(8)An Agency Head must not engage, as an APS employee, a person who is not an Australian citizen, unless the Agency Head considers it appropriate to do so.
Section 22 contemplates that the “engagement” referred to in that section will be the legal consequence of bilateral interaction between the relevant agency head (or his or her delegate) and the prospective employee. Ordinarily, the engagement will be effected by means of a legally binding contract. The guidelines proceed upon the basis that (amongst other things) a formal offer of employment will be made by the relevant agency head (or his or her delegate) and that the relevant engagement will be put into place by the employee’s acceptance of that formal offer. The process outlined in the guidelines is entirely consistent with the requirements of s 22 of the PS Act.
In the present case, no interaction took place between the ATO and the applicant after the applicant had lodged her application in respect of the advertised position. All that happened was that the ATO put in train the internal process contemplated by the guidelines and moved through that process up to the point where the vacancy delegate approved the selection panel’s recommendations. The applicant was not informed of the vacancy delegate’s approval nor was any offer any made to her. She only learned of the vacancy delegate’s decision when she obtained a redacted copy of the SAC report pursuant to an FOI request made by her.
In my judgment, the process fell well short of culminating in an engagement of the applicant by the ATO within the meaning of s 22 of the PS Act. There was no job offer, no acceptance of a job offer and no contract. Furthermore, the advertised position was specified only as “… an expected employment opportunity”. The positions advertised were not expressed to be available nor was it represented by the ATO that they would become available.
The solicitor for the applicant seemed to accept that, if there was no engagement within the meaning of s 22 of the PS Act, the applicant had no case. That is to say, the fundamental submission being advanced by her was that, in the circumstances of the present case, an engagement of the applicant by the ATO had been effected.
The applicant does not seek judicial review of any decision made or imputed to the Commissioner of Taxation. For this reason, I need not consider the possibilities that might have arisen had she done so.
In Singh v Super City Home Loans Pty Ltd [2011] FCA 646, I endeavoured to distil the principles articulated by the High Court in Spencer v Commonwealth (2010) 241 CLR 118 which govern the application of s 31A of the FCA Act. At [129] in Singh, I said:
In Spencer v The Commonwealth (2010) 241 CLR 118, the High Court considered the meaning and effect of s 31A of the Federal Court Act. The following principles may be gleaned from that decision:
(a)Section 31A authorises summary disposition on a variety of bases (at [22] (p 131) per French CJ and Gummow J). At [22], their Honours also said:
… It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.
(b)The power to order summary dismissal pursuant to s 31A is different from the power to strike out defective pleadings pursuant to O 11 r 16 of the Federal Court Rules (at [23] (p 131) per French CJ and Gummow J);
(c)The power to terminate proceedings summarily should be exercised with caution (at [24] (p 131) per French CJ and Gummow J). At [24] (p 131), their Honours also said:
24The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128–130 per Barwick CJ) or on the basis that the action is frivolous or vexatious or an abuse of process (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J). The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said ((1983) 154 CLR 87 at 99. See also Webster v Lampard (1993) 177 CLR 598 at 602–603 per Mason CJ, Deane and Dawson JJ):
“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.”
More recently, in Batistatos v Roads and Traffic Authority (NSW) ((2006) 226 CLR 256 at 275 [46]) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde ((2000) 201 CLR 552 at 575–576 [57]) which included the following:
“Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 per Barwick CJ), but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”
There would seem to be little distinction between those approaches and the requirement of a “real” as distinct from “fanciful” prospect of success contemplated by s 31A (In A v Essex County Council [2010] 3 WLR 509, the criterion of “real prospect of success” was variously equated to whether the plaintiff “could succeed at a trial”, whether there was a “triable issue” and whether there was the “least doubt”: at [44] per Lord Clarke of Stone-cum-Ebony JSC; at 541 [119] per Baroness Hale of Richmond JSC; at 544 [133] per Lord Brown of Eaton-under-Heywood JSC; at 552 [163] per Lord Kerr of Tonaghmore JSC). That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.
(d)There must be a high degree of certainty that the applicant/plaintiff cannot succeed if the proceeding is allowed to go to trial in the ordinary way (Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at [46] (p 275) per Gleeson CJ, Gummow, Hayne and Crennan JJ).
(e) At [25]–[26], French CJ and Gummow J also said:
25 Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. 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. 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. 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 this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
26 Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant (see above at [21]). The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.
(f)Section 31A requires that there be “no reasonable prospect of success”. This is a different concept from the concept of “no real prospect of success” (per Hayne, Crennan, Kiefel and Bell JJ at [50]–[51] (pp 138–139));
(g)The statutory admonition is that a proceeding may be found to have no reasonable prospect of successful prosecution even if it is not hopeless or bound to fail (per Hayne, Crennan, Kiefel and Bell JJ at [52] (p 139)). At [52]–[53] (p 139), their Honours went on to say:
52… it is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.
53 In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail. That this was the basis of earlier decisions may be illustrated by reference to two decisions of this Court often cited in connection with questions of summary judgment: Dey v Victorian Railways Commissioners ((1949) 78 CLR 62) and General Steel Industries Inc v Commissioner for Railways (NSW) ((1964) 112 CLR 125).
(h)Section 31A requires a different inquiry to be undertaken from that undertaken under earlier different regimes (per Hayne, Crennan, Kiefel and Bell JJ at [56] (p 140));
(i)The expression “no reasonable prospect” should be understood in the manner explained by Hayne, Crennan, Kiefel and Bell JJ in Spencer as follows (at [58]–[60] (p 141)):
58 How then should the expression “no reasonable prospect” be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like “no reasonable prospect” is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes (Weiss v The Queen (2005) 224 CLR 300 at 312–318 [31]–[47]), as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
59 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”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.
60 Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
I intend to apply that summary of those principles here.
In my view, the applicant’s case is entirely without merit. There was no engagement within the meaning of s 22 of the PS Act. In any event, the order for mandamus is sought against the Commissioner of Taxation even though he is not a party. His absence from the proceeding would be a sufficient basis on its own to refuse that order.
The Commonwealth has well and truly satisfied me that s 31A of the FCA Act has been engaged. I also consider that r 26.01 FCR has been engaged. The applicant cannot succeed in the case which she has sought to articulate and it should be dismissed now in order to save both parties the expense, time and trouble of litigating the applicant’s claims.
Given that the proceeding is to be summarily dismissed, there is no point addressing the applicant’s Interlocutory Application. That Application should also be dismissed.
For these reasons, I propose to grant the relief sought by the Commonwealth. There will be orders accordingly.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 13 November 2013
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