Case: Jefferson Ford Pty Limited v Ford Motor Company of Australia Limited [2008] FCAFC 60 ; (2008) 167 FCR 372 
Outcome: considered
Full Court of this Court considered the application of s 31A in Jefferson Ford Pty Limited v Ford Motor Company of Australia Limited [2008] FCAFC 60 ; (2008) 167 FCR 372 (Finkelstein, Rares and Gordon JJ). Finkelstein J stated that s 31A of the Act is to be given a 'substantial operation' which requires the 'judge to conduct what might loosely be described as a preliminary trial' and to look closely to a party's 'assertion that there is a real question of law or fact to be decided' (at [23]). About factual issues Finkelstein J (at [20]) stated that the task of prediction was fraught with all kinds of difficulties including the Court, in many cases, not having before it all the material evidence, and if credit is involved the impossibility of predicting how that issue would be resolved. Even if the dispute is only a question of law, that issue may be difficult to resolve; or to predict its resolution, in the absence of detailed argument such as only occurs at a trial. Then Finkelstein J stated (at [23]) that the task of the judge is 'to decide whether the opposing party has evidence of sufficient quality and weight to be able to succeed at trial' and on questions of law the task of the judge is to determine whether the question of law is 'sufficiently strong to warrant a trial' (at [23]). Rares J favoured the test he stated in Boston Commercial and noted that that the correctness of that test did not need to be examined because 'neither party challenged that test' (at [73]). Gordon J identified a number of principles which 'inform' the application of s 31A of the Act. Among these are: (1) that s 31A is less stringent than the General Steel Industries standard; (2) that each case must be determined separately; (3) where there is a real issue of fact it is unlikely that that part of the proceeding has no prospect of success; (4) in determining whether a real issue of fact exists the Court must draw all available reasonable inferences in favour of the non-moving party (at [124] [132]). Gordon J at [126] stated that the assessment that a proceeding has no reasonable prospects of success will necessarily require: 1. Identification of the cause of action pleaded; 2. identification of the pleaded facts said to give rise to that cause of action; a review of the evidence (if any) tendered in support of the claim for judgment; 4. identification of the defence pleaded; identification of any facts pleaded which are said to give rise to the defence; and 6. a review of the evidence (if any) tendered in defence of the claim. Jefferson Ford was considered by a Full Court of this Court in Bond v Barry (2008) 173 FCR 106 (Sundberg, Jacobson and Lander JJ) but declined to express a view on which of the competing views in Jefferson Ford of the application of s 31A of the Act was correct (at [74]). (ii) Application of the general principles to this proceeding In conclusion, it was submitted on behalf of Dr Windsor that, whether the Court applies the standard adopted by Rares J in Boston Commercial , the principles identified by Gordon J in Jefferson Ford or, the tasks of the judge in considering an application under s 31A of the Act identified by Finkelstein J in Jefferson Ford , the Court should find that SMS has not satisfied the onus of demonstrating that Dr Windsor has no reasonable prospects of prosecuting the proceedings within s 31A(2) of the Act.