Case: Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372
Outcome: applied
is not a matter in which it is necessary to consider in detail the varying and by no means harmonious views that have been expressed by judges as to the burden of the "no reasonable prospect of successfully prosecuting" formula and of the nature of, and limits to, the assessment it requires be made. As I have indicated, I have a plethora of evidence before me and the principal task it presents is the making of an assessment of it, as a matter of fact, as to whether Mr Kowalski has no reasonable prospect of proving each of the facts necessary to perfect the elements of the causes of action he advances in his pleading: cf Paramasivam v University of New South Wales [2007] FCAFC 176 at [41] ; see also Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 at [23] . Beyond that, as I will indicate, there is also a question whether his claims are legally untenable in any event. It is well accepted that the moving party bears the onus of persuading the Court that the applicant has no reasonable prospects of success. But once that party has established a prima facie case that the applicant has no reasonable prospect of success, the applicant must respond by pointing to specific factual or evidentiary disputes that make a trial necessary: Jefferson Ford at [127]. Importantly for present purposes, as Gordon J observed in Jefferson Ford at [130] (citations omitted): ... where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that that part of the proceeding has no prospect of success ... So, for example, if the pleadings, affidavits, and other materials considered in connection with the summary judgment motion, reveal a factual dispute and that factual dispute must be resolved to determine whether or not the claim succeeds, it cannot be said that the claim has "no reasonable prospect of success" ... On the other hand, if the factual contest is unnecessary to the resolution of the cause of action pleaded, then in the absence of other relevant material, there is nothing to prevent the court entering judgment on that claim. Breach of Trust/Fiduciary Duty Doing the best I can with the underlying material which is said to found the complaints made, and conscious of the opportunities I have given Mr Kowalski to propound a cause of action, albeit in lay terms, I have as I have foreshadowed, concluded that the proceedings should be summarily dismissed. While it will not often be the case that a Court will be required to or should properly conduct as detailed an examination of the materials put on by the parties as I have, this is not an ordinary proceeding with an ordinary and uneventful provenance. The evolving manner in which Mr Kowalski has perceived his grievances and has formulated them to secure the relief he has in mind, has necessitated that I conduct in essence a "preliminary trial": Jefferson Ford , at [23]. I intend to deal briefly with the factual material chronologically, focussing primarily upon those matters which have led me to my conclusion. It is, I consider, important to acknowledge that in 1992 both the insurer and the Trustee declined Mr Kowalski's formal application for a TPD Benefit. The Trustee's decision has not been challenged in this proceeding. I mention this decision because, as the Trustee later recognised, it did not preclude the further consideration of whether Mr Kowalski may have been entitled to a TPD Benefit when his employment terminated in 1994.