FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SMITH & ORS v MARAPIKURRINYA PTY LTD & ORS | [2010] FMCA 5 |
| PRACTICE AND PROCEDURE – Application to summarily dismiss proceedings – principles. PRACTICE AND PROCEDURE – Application to transfer proceedings to the Federal Court – principles. TRADE PRACTICES – Alleged misleading and deceptive conduct in relation to alleged representations in native title and aboriginal heritage matters – whether allegations made “in trade or commerce” – injunction sought to restrain respondents in respect of native title and aboriginal heritage matters. WORDS AND PHRASES – “in trade or commerce”. |
| Aboriginal Heritage Act 1972 (WA), ss.5, 6, 18 Constitution, s.51(xx) Fair Trading Act 1987 (WA) Federal Court Act 1976 (Cth), s.31 Federal Magistrates Act 1999 (Cth), ss.14, 16, 17A, 18, 19, 39(3) Federal Magistrates Court Rules 2001 (Cth), rr.8.02(4), 16.06 Trade Practices Act 1974 (Cth), ss.52, 80, 82, 87 Native Title Act 1993 (Cth), ss.10, 24CD, 24DE, 25, 44A, 61, 81, 86(1) and (4), 223, 251B |
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Details
- AGLC
- Smith v Marapikurrinya Pty Ltd [2010] FMCA 5
- Case
- [2010] FMCA 5
- Decision Date
CaseChat Overview and Summary
The case of Smith v Marapikurrinya Pty Ltd involved a dispute concerning alleged misleading and deceptive conduct in relation to representations made in native title and aboriginal heritage matters. The matter was initially heard in the Federal Magistrates Court, which was tasked with deciding whether the respondents’ application for summary dismissal of the proceedings should be granted, as well as whether the proceedings should be transferred to the Federal Court of Australia.
The legal issues the Court was required to decide included the appropriate threshold for granting summary dismissal, the principles guiding the transfer of proceedings to the Federal Court, and whether the alleged conduct fell within the definition of "in trade or commerce" as required by the Trade Practices Act. The Court also had to consider whether an injunction should be granted to restrain the respondents from engaging in certain activities related to native title and aboriginal heritage matters.
The Court held that the respondents’ application for summary dismissal should be dismissed, as there were real issues of fact and law that needed to be determined at trial. The Court was cautious not to dismiss the proceedings summarily and recognised that it was not appropriate to do so when there was a genuine dispute and the rights of the parties depended on resolving that dispute. The Court also determined that the proceedings should be transferred to the Federal Court of Australia, as it was the more appropriate forum to address the complex issues raised in the case.
The final orders of the Court included dismissing the respondents’ application for summary dismissal, upholding the application for transfer of the proceedings to the Federal Court of Australia, and directing that the proceedings in matter number PEG 10 of 2009 be transferred accordingly.
The legal issues the Court was required to decide included the appropriate threshold for granting summary dismissal, the principles guiding the transfer of proceedings to the Federal Court, and whether the alleged conduct fell within the definition of "in trade or commerce" as required by the Trade Practices Act. The Court also had to consider whether an injunction should be granted to restrain the respondents from engaging in certain activities related to native title and aboriginal heritage matters.
The Court held that the respondents’ application for summary dismissal should be dismissed, as there were real issues of fact and law that needed to be determined at trial. The Court was cautious not to dismiss the proceedings summarily and recognised that it was not appropriate to do so when there was a genuine dispute and the rights of the parties depended on resolving that dispute. The Court also determined that the proceedings should be transferred to the Federal Court of Australia, as it was the more appropriate forum to address the complex issues raised in the case.
The final orders of the Court included dismissing the respondents’ application for summary dismissal, upholding the application for transfer of the proceedings to the Federal Court of Australia, and directing that the proceedings in matter number PEG 10 of 2009 be transferred accordingly.
Orders
Orders of the court
1.
That the respondents’ application for summary dismissal of the proceedings be dismissed.
2.
That the respondents’ application for transfer of the proceedings be upheld.
3.
Proceedings in matter number PEG 10 of 2009 be transferred to the Federal Court of Australia.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Court has power to dismiss all or part of the proceedings pursuant to s.17A of the FM Act. That section relevantly provides that:17A Summary judgment… (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. Section 17A of the FM Act appears to lower the threshold whereby the Court may be satisfied that it is appropriate to dismiss a claim though that does not detract from the well settled principles in relation to summary dismissal.[19] The Court should however be very cautious in dismissing an applicant’s proceedings summarily and should only do so when it is clear, beyond doubt, that there is no reasonable cause of action.[20][19] MG Distribution Pty Ltd v Khan (2006) 230 ALR 352 at 360-36 per McInnis FM; [2006] FMCA 666 at paras.37-39 per McInnis FM (“MG Distribution”).[20] Rana v University of South Australia (2004) 136 FCR 344 at 355 per Lander J; [2004] FCA 559 at para.75 per Lander J (“Rana”). In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd[21] the Federal Court stated that:“s 31A(2)(b)[22] requires a person moving a motion for summary disposal (the moving party) to satisfy the court that there is no reasonable prospect of any of the party claiming relief (the plaintiff) successfully prosecuting the proceeding or part of the proceeding in question”[23]and:“…Where there is a real issue of fact to be decided…and, possibly, where there is a real issue of law… it is obviously appropriate that the matter goes to trial.”[24][21] (2006) 70 IPR 146; [2006] FCA 1352 (“Boston Commercial”).[22] Section 31A(2)(b) of the Federal Court Act 1976 (Cth) (“FC Act”) is equivalent to s.17A of the FM Act.[23] Boston Commercial IPR at 156 per Rares J; FCA at para.42 per Rares J.[24] Boston Commercial IPR at 157 per Rares J; FCA at para.44 per Rares J. In Dandaven v Harbeth Holdings Pty Ltd[25] the Federal Court summarised the relevant principles applicable to a summary dismissal application as follows:[25] [2008] FCA 955 (“Dandaven”).Success under s 31A does not require a demonstration that the case is hopeless or bound to fail. The following principles are of general application to an application under s 31A:(a) the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings;(b) the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed;(c) in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading;(d) it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;(e) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is ‘no reasonable prospect of success’;(g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;(h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects;(i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party.See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5]; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146 at [42]–[48]; Hicks v Ruddock (2007) 156 FCR 574 at [13]; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30]; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21]; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60.[26][26] Dandaven at para.6 per Gilmour J.
Ratio Decidendi
Legal Principle Established
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