Case: Boston Commercial Services Pty Limited v GE Capital Finance Australasia Pty Limited [2006] FCA 1352 ; (2006) 236 ALR 720 
Outcome: considered
respect of applications for summary judgment under s 31A of the Act, the onus to demonstrate that the proceedings do not have reasonable prospects of success rests with the party seeking summary judgment. In Boston Commercial Services Pty Limited v GE Capital Finance Australasia Pty Limited [2006] FCA 1352 ; (2006) 236 ALR 720 at [43] and [44] Rares J, quoting from Latham CJ in Hocking v Bell [1945] HCA 16 ; (1945) 71 CLR 430 at 441 442, likened the standard under s 31A of the Act to the common law test for determining whether a jury properly instructed could reach a verdict for a plaintiff: [T]here must be a real issue of fact to be decided. And if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law, and direct a verdict to be entered in accordance with the only evidence which is really presented in the case ... In a case to which s 31A applies, where there is a real issue of fact to be decided in the sense identified in the above principle, and possibly where there is a real issue of law of a similar kind, it is obviously appropriate that the matter goes to trial. A 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. In SMS's submission it has 'discharged the onus to enliven the discretion to authorise a summary termination of the proceedings which s 31A envisages', per Rares J in Boston Commercial at [45]. Even accepting Mr Neil Windsor and Dr Windsor's version of the discussions on 8 and 10 January 2001 (paras 19, 21 and 23 of Ex. B (the 74 page affidavit) and paras 21, 23 and 24 of Ex. A (the 54 page affidavit)) as completely accurate, there is no reasonable interpretation of the communications between Mr Neil Windsor and SMS which is consistent with any conclusion other than that any contract for the provision of locum services by Dr Windsor was entered into between InterNEOn and SMS. Dr Windsor pointed to the evidence at para 19 of the 74 page affidavit that is part of Ex. B in support of the case propounded in the amended statement of claim on the formation of the agreement, specifically: (1) That Mr Neil Windsor, on Dr Windsor's behalf, met with Mr Muldoon of SMS on 8 January 2001; (2) that at the commencement of the meeting the following exchange took place: Mr Muldoon said 'So you have come to negotiate with me, have you?' [Mr Windsor said]: I guess I have.' (3) that Mr Windsor and Mr Muldoon on 8 January 2001 negotiated Dr Windsor's terms of engagement with SMS and reached agreement on those terms; (4) that at another point during the meeting the following exchange took place: [Mr Windsor said]: 'How often do you pay the locums?' Mr Muldoon said: 'Monthly on the second Wednesday of each month. I prepare a tax invoice for the locums. I need an ABN Number, you know, to take care of this GST crap.' [Mr Windsor said]: 'Does it have to be a personal ABN or can it be a company one?' Mr Muldoon said: 'I don't care. It's up to the locums to take care of their tax anyway they want.' [Mr Windsor said]: 'It might take a while to get an ABN. What are you going to do about payment?' Mr Muldoon said: 'I will keep the money until you give me an ABN. I'm not going to deduct 50% of the pay like the tax department want us to do.' It was submitted on behalf of Dr Windsor that it is inappropriate in a summary judgment application to determine the question of law whether post-contractual conduct or communications can be used to identify the parties to the contract for the provision of medical services entered into by SMS. Further, that there is evidence in support of the case pleaded in the amended statement of claim that the agreement was entered into by Dr Windsor, through the agency of her husband, Mr Neil Windsor, and Mr Muldoon of SMS on 8 January 2001; and there is no evidence by SMS as to the negotiations on 8 January 2001. It was submitted that 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. 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.