Plenty v Attorney-General (SA)

Case [2013] SASC 35

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

PLENTY & ANOR v ATTORNEY-GENERAL OF SOUTH AUSTRALIA

[2013] SASC 35

Judgment of The Honourable Justice Stanley

15 March 2013

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - SUMMARY JUDGMENT

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - JURISDICTION AND GENERALLY

Plaintiffs have brought action against the Attorney-General for the State of South Australia seeking declaratory orders – the defendant has brought an application for summary judgment or, in the alternative, summary dismissal - the defendant brings the application on four bases – first, that the second statement of claim filed by the plaintiffs fails to disclose a cause of action known at law, which failure is incapable of being remedied by amendment – second, the declaratory relief sought is not directed to the determination of a justiciable legal controversy – third, even if the declaratory relief sought was granted, it would produce no foreseeable consequences for the parties – fourth, the claim is frivolous, vexatious and an abuse of process.

6SCR 232 confers power on the Court to grant summary judgment – summary judgment may be given in favour of the defendant if the Court is satisfied that there is “no reasonable basis for the claim against the applicant”.

6SCR 193 confers power upon the Court to dismiss proceedings if the pleadings disclose no reasonable cause of action, or the proceedings are frivolous, vexations or an abuse of process.

Held: Order made granting summary judgment to the defendant – the proceedings have no prospect of success – at common law there is no absolute right to legal representation – further, the declaration sought is at large, the Attorney-General is not the proper contradictor – the making of the orders sought would have no foreseeable consequences for the parties – the Attorney-General owes no duty to protect individual citizens from injustice, nor is there any duty on the Attorney-General to introduce a bill into Parliament for the protection or advancement of private interests of an individual and in any event, it is not a legitimate role of the courts to exercise any supervisory function over Members of Parliament.

Supreme Court Civil Rules 2006 (SA) r 193, r 232; Supreme Court Act 1935 (SA) s 17, s 31; Federal Court of Australia Act 1976 (Cth) s 31A(2), referred to.
Spencer v The Commonwealth (2010) 241 CLR 118, applied.
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Aussie Airlines Ltd v Australian Airlines Ltd (1996) 68 FCR 406; Kleenex (Thailand) Co Ltd & Ors v Corporate IM Pty Ltd & Ors [2012] SASC 71; Little v State of Victoria [1991] VSCA 113; Gouriet v Union of Post Office Workers (1978) AC 435; Giannarelli v Wraith (1988) 165 CLR 543; Australian Conservation Foundation Inc. v The Commonwealth (1980) 146 CLR 493, discussed.
General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125; National Mutual Life…

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Plenty v Attorney-General (SA) [2013] SASC 35
Case
[2013] SASC 35
Decision Date

CaseChat Overview and Summary

In the case of Plenty v Attorney-General (SA), the plaintiffs sought declaratory relief and damages against the Attorney-General of South Australia. They argued that they had a right to be legally represented at their own expense in challenging the judgment of the Full Court of the Supreme Court of Western Australia, and that the Attorney-General had a duty of care to provide such representation. The Attorney-General applied for summary judgment, arguing that the proceedings had no reasonable prospect of success and were frivolous.

The court considered whether the plaintiffs had satisfied the conditions for declaratory relief, including having a real interest and a proper contradictor. The court found that the plaintiffs did not have a real interest in the declaration sought, as the question for determination was abstract and the declaration would have no foreseeable consequence for the parties. Additionally, the Attorney-General was not the proper contradictor, as it was not his role or responsibility to procure solicitors or counsel for the plaintiffs. The court also considered whether there was a reasonable basis for defending the plaintiffs' claim. The court found that there was no reasonable prospect of the Court granting the declaratory orders sought by the plaintiffs, as there was no absolute right to legal representation at common law and the declaration sought was at large.

The court concluded that the proceedings had no reasonable prospect of success and were without merit. The court granted the Attorney-General's application for summary judgment and dismissed the plaintiffs' claim.

The court's decision was based on the principles governing the exercise of the court's discretion in relation to the grant of declaratory relief and the power to enter summary judgment. The court found that the plaintiffs had not satisfied the conditions for declaratory relief and that there was no reasonable basis for defending the plaintiffs' claim. The court exercised its power to enter summary judgment with caution and considered the cogency of the defence raised by the Attorney-General.

This case highlights the importance of satisfying the conditions for declaratory relief and the principles governing the exercise of the court's discretion in relation to the grant of declaratory relief and the power to enter summary judgment. It also emphasises the need for caution when exercising these powers and the importance of considering the cogency of any defence raised by the defendant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Aussie Airlines Pty Ltd v Australian Airlines Ltd[3] Lockhart J summarised the principles which govern the exercise of the Court’s discretion in relation to the grant of declaratory relief. His Honour identified four conditions that must be satisfied:[4](1)The proceedings must involve the determination of a question that is not abstract or hypothetical; (2)Relief will not be granted in relation to future circumstances that may never happen or in circumstances where a declaration will produce no foreseeable consequence for the parties;(3)The parties seeking declaratory relief must have a real interest, that is, sufficient standing; and (4)There must be a proper contradictor.[3] (1996) 68 FCR 406.[4] (1996) 68 FCR 406 at 414.Summary judgment 6SCR 232 confers power upon the Court to grant summary judgment. Summary judgment may be given in favour of the defendant if the Court is satisfied that “there is no reasonable basis for the claim against the applicant”. In Kleentex (Thailand) Co Ltd & Ors v Corporate IM Pty Ltd & Ors[5] White J summarised the principles applicable to the exercise of the Court’s power in light of the High Court’s reasons in Spencer v The Commonwealth,[6] as follows:[7]1.Summary judgment on a plaintiff’s application may be given if, and only if, the Court is positively satisfied that there is “no reasonable basis for defending the [plaintiff’s] claim”.[8]2.The expression “no real basis for defending the [plaintiff’s] claim” requires that there be disclosed in the material before the Court a basis for defence which is more than fanciful.[9] That basis may relate to the underlying merits of the entitlement asserted by the plaintiff and involve issues of fact or of law or of combined fact and law. Alternatively, the basis may relate to the form of relief sought by the plaintiff in relation to a claim which is otherwise meritorious. As Debelle J observed in Ceneavenue, “the word ‘real’ is intended to distinguish a bona fide defence from one that is fanciful or spurious or an abuse of process seeking to delay and defeat the plaintiff’s just claim”.[10]3.The Court is not required to be satisfied that the defence proffered by the defendant is “hopeless” or “bound to fail”.[11] However, if the defence is characterised in that way, the r 232(2)(a) criterion will be satisfied.4.On the other hand, provided that there are relevant factual or legal issues in dispute, the Court’s opinion that a defence is unlikely to succeed is not sufficient for a grant of summary judgment on a plaintiff’s claim. A plaintiff’s entitlement to summary judgment does not turn simply on the Court’s prediction as to the likely ultimate outcome.5.The power to enter summary judgment under r 232 should be exercised with caution.[12] In particular, if the determination of whether a defendant has a reasonable basis for defending a claim requires consideration of apparently complex questions of fact or of law and fact, considerable caution is required.[13]6.The onus of establishing that summary judgment should be granted lies on a plaintiff,[14] but in considering whether the onus has been discharged, the Court will of course have regard to the cogency of any defence raised by the defendant.[15][5] [2012] SASC 71.[6] (2010) 241 CLR 118.[7] [2012] SASC 71 at [19].[8] Supreme Court Civil Rules 2006, r 232(2)(a).[9] Spencer v The Commonwealth [2010] HCA 28 at [25]; (2010) 241 CLR 118 at 132.[10] Ceneavenue Pty Ltd v Martin [2008] SASC 158 at [78]; (2008) 106 SASR 1 at 20.[11] Spencer at [17], [52]-[53], [56].[12] Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99; Spencer at [24], [60].[13] Spencer at [26].[14] Ceneavenue at [78].[15] Ibid.

Ratio Decidendi

Legal Principle Established

6SCR 193 confers power upon the Court to dismiss proceedings if the pleadings disclose no reasonable cause of action, or the proceedings are frivolous, vexatious, or an abuse of the process of the Court. The power to dismiss will only be used with great caution and in clear and obvious cases.[17] An action should not be struck out if there is a real question of fact or law to be determined.[18] A claim will be dismissed on the basis that the pleadings disclose no reasonable cause of action only where the claim is obviously unsustainable,[19] such that the defect cannot be cured by amendment to the pleadings.[20][17] General Steel Industries Inc v Commissioner for Railways (NSW) (1969) 112 CLR 125.[18] National Mutual Life Association of Australia Ltd v Coffey [1991] 2 Qd R 401.[19] Attorney-General of Duchy of Lancaster v London and North Western Railway Co. [1892] 3 Ch 274.[20] Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489 at 496; Morton v Arbuckle [1918] VLR 657.Consideration In my view, the defendant is entitled to summary judgment. The proceedings have no prospect of success. There is no reasonable prospect that the Court would grant the declaratory orders sought by the plaintiffs. The proceedings are without merit. I reach this conclusion for the following reasons. There is no reasonable prospect of the Court making a declaration that the plaintiffs have a right to be legally represented for a proper fee at the plaintiffs’ expense for the purposes of challenging the judgment of the Full Court of the Supreme Court of Western Australia. This is an instance of the observation by French CJ and Gummow J in Spencer v The Commonwealth[21] that where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of the High Court, the court hearing the application for summary judgment could justifiably conclude that the proceedings had no reasonable prospect of success. At common law, there is not an absolute right to legal representation.[22] Further, the declaration sought is at large. The Attorney-General is not the proper contradictor. He does not have a real interest in the declaration sought because the question for determination is abstract. The making of a declaration in the terms sought would have no foreseeable consequence for the parties. It would not require any particular solicitor or counsel to act for the plaintiffs. It is not the role or responsibility of the Attorney-General to procure solicitors or counsel who are prepared to act for the plaintiffs. There is no justiciable legal controversy between the plaintiffs and the Attorney-General. There are no proceedings before this Court which depend upon the resolution of the issues raised by the plaintiffs. [21] (2010) 241 CLR 118 at 132.[22] Deitrich v The Queen (1992) 177 CLR 292; Orellana-Fuentes v Standard Knitting Mills Pty Ltd (2003) 57 NSWLR 282 at 298 – 299. Neither is there any reasonable prospect of the Court granting a declaration that the Attorney-General has a duty of care with respect to the plaintiffs, and failed to discharge that duty by failing either to introduce an appropriate bill in Parliament regarding legal representation, or to have found a solution to the concerns of the plaintiff.