This was an Appeal concerning the standing of the Respondents to challenge the constitutionality of the Critical infrastructure Defence Act, SA 2020, c C-32.7 specifically where the challenge is based only on hypothetical scenarios without a factual platform established by evidence. The Appellant brought an Application to strike out the Statement of Claim; it challenged both the Respondents’ standing and the sustainability of the underlying claim absent a factual record.

The parties disagreed on the scope of the Appellant’s Application which would impact the proper test to be applied when determining standing and the test to be applied when considering striking the Claim itself. The Appellant’s submission invoked several Rules, but the parties focussed on Rule 3.68.

Rule 3.68(2) lays out conditions under which the Court may, pursuant to 3.68(1), strike all or part of a pleading or stay an application. Pursuant to Rules 3.69(1) and 3.68(2), a Court may strike out all or part of a pleading and/or stay an application or proceeding where, among other things, the pleading discloses no reasonable claim or is an abuse of process.

The most commonly invoked subrule is Rule 3.68(2)(b) aimed at striking out a pleading that discloses “no reasonable claim”, which triggers the proviso in Rule 3.68(3) that no evidence may be considered on the Application. On such an Application, the pleaded facts are presumed to be true.

However, the Court found that a challenge to a Plaintiff’s standing is not made under Rule 3.68(2)(b); it is not an assertion that the claim does not disclose a reasonable claim or that the claim is without merit. Accordingly, Rule 3.68(3) stating that evidence will not be considered does not apply.

When standing is challenged, the Court found that, the Application sought is for a stay under Rule 3.68(1), because the action is an abuse of process under Rule 3.68(2)(d).

The Court found that there were few facts pleaded and none demonstrated by any evidence. Further, the standing issues had been resolved by the implicit admission by the Appellant that the Statement of Claim had correctly set out the Respondent’s status. As a result, the Court found that the Claim as pleaded, based solely on hypothetical situations, was not an appropriate method of adjudication and the Statement of Claim should, therefore, be struck under Rule 3.68(2)(d).

The Court ultimately found that the Respondents were not entitled to public interest standing and struck the Statement of Claim.