FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PEACOCK v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION & ANOR | [2007] FMCA 1360 |
| ADMINISTRATIVE LAW – Summary dismissal – no reasonable prospect of success – abuse of process. |
| Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.11, 20 Federal Magistrate Court Rules 2001, rr.4.04, 13.10 |
| Applicant: | MORTIMER JOHN PEACOCK |
| First Respondent: | HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION |
| Second Respondent: | THE COMMONWEALTH ATTORNEY-GENERAL |
| File number: | SYG 1432 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 2 August 2007 |
| Date of last submission: | 2 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 August 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Second Respondent: | Ms K. Eastman |
| Solicitor for the Second Respondent: | Ms D. Watson of Australian Government Solicitor |
ORDERS
The application is dismissed pursuant to Rule 13.10(a) and Rule 13.10(c).
The orders of the Court made on 29 May 2007, numbers 2-14, are vacated.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1432 of 2007
| MORTIMER JOHN PEACOCK |
Applicant
And
| HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION |
First Respondent
| COMMONWEALTH ATTORNEY-GENERAL |
Second Respondent
REASONS FOR JUDGMENT
By notice of motion filed on 27 June 2007, the Commonwealth Attorney-General seeks summary dismissal pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 of the applicant’s claims in matter SYG…
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Details
- Case
- [2007] FMCA 1360
- Decision Date
CaseChat Overview and Summary
In the case of Peacock v HREOC, the applicant sought summary judgment under Section 17A of the Federal Magistrates Act 1999 (Cth). The Federal Magistrates Court was tasked with determining whether the respondent had any reasonable prospect of successfully defending the proceeding. The central legal issue before the court was the interpretation of the phrase "no reasonable prospect of success" as it appears in Section 17A of the Act. The court had to assess whether the respondent's defence had real, as opposed to fanciful or merely arguable, prospects of success.
The court examined the phrase "no reasonable prospect of success" and referenced previous cases in both Australian and international jurisdictions to clarify its meaning. It was determined that the phrase required the court to consider whether there were real prospects of success, as opposed to fanciful or merely arguable ones. The court found that the respondent's defence did not meet the threshold for having any reasonable prospect of success.
As a result, the court dismissed the application for summary judgment and vacated the orders previously made in the case. This decision underscores the importance of a thorough evaluation of the prospects of success when considering summary judgment applications.
The court examined the phrase "no reasonable prospect of success" and referenced previous cases in both Australian and international jurisdictions to clarify its meaning. It was determined that the phrase required the court to consider whether there were real prospects of success, as opposed to fanciful or merely arguable ones. The court found that the respondent's defence did not meet the threshold for having any reasonable prospect of success.
As a result, the court dismissed the application for summary judgment and vacated the orders previously made in the case. This decision underscores the importance of a thorough evaluation of the prospects of success when considering summary judgment applications.
Orders
Orders of the court
1.
The application is dismissed pursuant to Rule 13.10(a) and Rule 13.10(c).
2.
The orders of the Court made on 29 May 2007, numbers 2-14, are vacated.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Section 17A of the Federal Magistrates Act 1999 (Cth) provides:Summary judgment (1)The Federal Magistrates 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 prosecuting the proceeding or that part of the proceeding; and (b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. (2)The Federal Magistrates 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 Federal Magistrates Court has apart from this section. Rule 13.10 of the of the Federal Magistrates Court Rules 2001 has been set out above. The phrase “no reasonable prospect of success” in s.17A of the Federal Magistrates Act 1999 (Cth) was examined by Justice Lindgren in White Industries Australian Ltd v Commissioner of Taxation [2007] FCA 511. His Honour stated at [58-60][58] Third, while s.31A of the FCA Act (mutatis mutandis, s.17A of the FM Act) achieves nothing of significance in relation to migration cases, it is of general application and therefore affects all proceedings brought in the Court. The question of the precise meaning of s.31A of the FCA Act and s.17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18]-[28]. The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975; MG Distribution Pty Ltd v Khan [2006] FMCA 666; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688; Alphapharm Pty Ltd v Merck & Co Inc [2006] FCA 1227; Duncan v Lipscombe Child Care Services Inc (2006) 150 IR 471; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401; Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s.31A has arisen in a wide range of the cases in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them.[59] I do not propose to add greatly to the discussion of the meaning and effect of s.31A. In the United Kingdom it has been held in the context of the similar rule 24.2 of the CPRs noted at [53] above, that the expressions “no real prospect of succeeding” and “no real prospect of successfully defending” require attention to be given to real, as opposed to “fanciful” or “merely arguable” prospects: Swain v Hillman [2001] 1 All ER 91 at 92; Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at [90], [95], [133]–[134], [158]–[162]; ED & F Man Products Ltd v Patel [2003] EWCA Civ 472 at [8]. The Queensland Court of Appeal has similarly held, following Swain v Hillman and Three Rivers District Council v Governor and Company of the Bank of England, that the “no reasonable prospects of success” test requires the court to determine whether there are “real” as opposed to “fanciful” prospects of success: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at 235. The New South Wales Court of Appeal had to consider the expression “reasonable prospects of success” as it occurred in s.198J of the Legal Profession Act 1987 (NSW) in Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300. That section prohibited a solicitor or barrister from providing legal services on a claim or defence of a claim for damages unless the solicitor or barrister reasonably believed on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence had reasonable prospects of success. Later subsections elaborated on the meaning of the prohibition. This fact, coupled with the fact that the prohibition was directed to the reasonable belief of the solicitor or barrister, renders the discussion not directly relevant to the summary dismissal context in which the court is required to determine if there are reasonable prospects of success following an inter partes hearing.
Ratio Decidendi
Legal Principle Established
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