PRACTICE AND PROCEDURE – summary dismissal – no cause of action – no private right to claim damages – jurisdiction – no ‘matter’ – O 20 r 5 of the Federal Court Rules
2.The applicant is to pay the respondent’s costs of the application and the motion today, to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 45 OF 2008
BETWEEN:
JEFFREY PICKERING Applicant
AND:
CENTRELINK Respondent
JUDGE:
MCKERRACHER J
DATE:
18 APRIL 2008
PLACE:
PERTH
REASONS FOR JUDGMENT
REVISED FROM TRANSCRIPT
INTRODUCTION
The applicant, Mr Pickering has on 7 March 2008 filed an application against the respondent, Centrelink supported by an affidavit sworn by him. The application reads:
Centerlink (sic) has refused to allow me to speak to the autorize (sic) review officer reguarding (sic) being banned from Centerlink (sic) This has been going on since the 1st November 2007. Since 1975 I have been arguing with Centerlink (sic) about their duties and obligation to me. It has got to the suitation (sic) that the Centerlink (sic) physchirist (sic) Peter Clarke believes I am mentally unstable. Now I cannot talk to anyone without threatening to kill even the police have told me I am mental. Therefor (sic) because of Centerlink (sic) and being in jail at times I am now sueing (sic) Centerlink (sic) for $2,700,000 for all the stress agrevation (sic) stupidity and time in jail that Centerlink (sic) has put me through for not…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Pickering v Centrelink [2008] FCA 561
Case
[2008] FCA 561
Decision Date
CaseChat Overview and Summary
The case of Pickering v Centrelink involved the applicant, Mr Pickering, seeking to challenge a decision made by Centrelink, the respondent. The primary dispute centred on the procedural aspects of the case, specifically whether the application should be summarily dismissed under s 31A of the Federal Court of Australia Act and O 20 r 5 of the Federal Court Rules. The Court was tasked with determining whether Mr Pickering's application had any reasonable prospect of success, given the stringent criteria set out in the cited legislation and rules.
The legal issues that the Court needed to address were whether the application was so lacking in merit or substance as to be not fairly arguable, and if the application could be considered frivolous or vexatious. The Court examined the relevant provisions, noting that the standard for determining the lack of reasonable prospects of success was lower than previously established by the High Court. However, the Court also emphasised that the threshold was still substantial, requiring a determination of whether there was a realistic prospect of success, as opposed to a fanciful one. The Court reviewed the evidence and submissions to assess if Mr Pickering's application met the criteria for dismissal under the specified provisions.
The Court found that Mr Pickering's application did not meet the threshold for summary dismissal. The Court concluded that there was a realistic prospect of success on the application, and therefore, the motion for summary dismissal was dismissed. The Court further ordered that the applicant pay the respondent's costs of the application and the motion, to be taxed if not agreed. This decision underscored the importance of thoroughly evaluating the merits of an application against the stringent criteria set by the Federal Court Act and Rules, while also acknowledging the need for a realistic, as opposed to a fanciful, prospect of success.
ORDERS:
1. The application be dismissed.
2. The applicant is to pay the respondent’s costs of the application and the motion today, to be taxed if not agreed.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant is to pay the respondent’s costs of the application and the motion today, to be taxed if not agreed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
MCKERRACHER J
The submissions focused on two grounds, namely, s 31A of the Federal Court of Australia Act and O 20 r 5 of the Federal Court Rules. Those provisions provide as follows:Section 31A of the Federal Court of Australia Act reads as follows:Summary judgment(1)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 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 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. Order 20 r 5 of the Federal Court Rules reads as follows:5Stay or dismissal (proceedings commenced on or after 1 December 2005)(1)This rule applies to a proceeding commenced on or after 1 December 2005 if the Court is satisfied that, for the proceeding generally or for a claim for relief in the proceeding:(a)the proceeding or claim is frivolous or vexatious; or(b)the proceeding or claim is an abuse of the process of the Court.(2)The Court may order that the proceeding be stayed or dismissed generally or in relation to the claim for relief.(3)The Court may receive evidence on the hearing of an application for an order under subrule (2). To the extent that the respondent relies upon s 31A in its motion, it is required to establish that there is ‘no reasonable prospect of success’ on Mr Pickering’s application. As observed by Heerey J in Duncan v Lipscombe Child Care Services Inc (2006) 150 IR 471, s 31A of the Federal Court Act 1976 (Cth) was introduced to establish a lower standard for strike outs (either of claims or defences) than that previously laid down by the High Court’s decisions in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125. Nevertheless, while the test is lower, as Barrett J in Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284 held, for the purposes of the comparable provision in New South Wales (‘without reasonable prospects of success’) meant ‘so lacking in merit or substance as to be not fairly arguable’. In Swain v Hillman [2001] 1 All ER 91, Court of Appeal per Lord Woolf MR said at 92: The words "no real prospect of succeeding" do not need any amplification, they speak for themselves. The word "real" distinguishes fanciful prospects of success or ... they direct the court to the need to see whether there is a "realistic" as opposed to a "fanciful" prospect of success.