Case: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Pty Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372
Outcome: considered
Section 31A confers a power on the Court to make a decision summarily that there is no reasonable prospect that, if a trial were to take place, the claim or defence would succeed. It is not an adjudication of the merits ( Jefferson Ford Pty Ltd v Ford Motor Company of Australia Pty Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 at [45] per Rares J). If s 31A were to limit or restrict admissible evidence in such a way as to influence or control the manner in which the Court decided a summary dismissal application, then the provision would be incompatible with the exercise of judicial power and thus invalid ( Gypsy Jokers at [108] per Kirby J; K-Generation Pty Ltd v Liquor Licensing Court (2007) 99 SASR 58 at [69] [73] per Duggan J). However, that is simply not the case. 41 In Jefferson Ford at [45], Rares J commented that, when the Court gives judgment for a party under s 31A(1) or s 31A(2) ' it is exercising a jurisdiction similar to the implied or inherent power of the Court to protect its own processes from proceedings which are an abuse of those processes '. His Honour expressed the view that, by enacting s 31A, Parliament broadened the categories of case in which the power summarily to determine proceedings could be exercised and (at [57]) that it was not intended to create final, rather than interlocutory, judgments. Rather, it was intended to ' lower the bar ' (per Rares J at [63]) or, to put it another way, to ' impose a different and less stringent test ' (per Gordon J at [124]) for obtaining summary judgment, below the level set by the test in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 ( White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 per Lindgren J). It was introduced ' to strengthen "... the power of the court to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases"' ( Jefferson Ford at [124] per Gordon J; Boston Commercial at [45] per Rares J; citing the Second Reading Speech to the Migration Litigation Reform Bill 2005 (Cth)). 45 Despite the fact that there is some difference of opinion in the Court as to the precise test to be applied and as to whether a decision under s 31A is final or interlocutory, it is clear from the discussion in Boston Commercial and Jefferson Ford that it is for the judge to decide whether there are reasonable prospects of success. In doing so, the judge conducts an inquiry into the merits of the question in order to decide whether it is sufficiently strong to warrant a trial ( Jefferson Ford at [23] per Finkelstein J, at [74] per Rares J; Bond v Barry [2008] FCAFC 115 at [72] per curiam). That test and the matters to be considered in coming to a conclusion are not mandated by the legislature. That is the case whether or not it is mandatory ( Jefferson Ford at [128] [129] per Gordon J) or discretionary ( J F Keir v Sparks [2008] FCA 611 at [12] per Graham J) to give summary judgment once that assessment is made or whether the discretion is a general one ( Boston Commercial at [45] per Rares J) or limited by the circumstances of "no reasonable prospect of success" ( Jefferson Ford at [129] per Gordon J). The Court is still in the position of determining the facts and inferences to be drawn in deciding whether or not the test in s 31A has been satisfied in any given case. It is for the Court to decide whether the basis for summary judgment has been established ( Gypsy Jokers at [7] per Gleeson CJ). 57 In any event, his underlying premise is that s 31A ' infringes the inalienable guarantees asserted in ' Magna Carta and those other Acts which provided statutory protection to procedural safeguards and the rule of law. In particular, he states that s 31A denies the right to appeal and legal process. That is simply not the case: Jefferson Ford at [71] per Rares J, [191] per Gordon J; ss 24(1) &amp; (1A) Federal Court Act.