Chalak v G & G Mikhael Pty Ltd [2022] NSWCA 116

15. The constraints on granting summary disposal stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [2] have been applied in both contexts. Barwick CJ stated:

“It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action – if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal – is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’….”

After referring to the judgment of Dixon J in Dey v Victorian Railways Commissioners, [3] Barwick CJ continued: [4]

“Although I can agree with Latham CJ in [Dey] when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”

Nevins & Urwin 06 May 2022

[2022] FedCFamC1A 57 Alstergren CJ, McClelland DCJ, Austin, Bennett and Cleary JJ

In instances of ambiguity, the construction avoiding irrational and unjust consequences should be adopted (Public Transport Commission (NSW) (formerly Commissioner for Railways) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350).