Case: Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60
Outcome: considered
Section 31A of the FCA was introduced effective 1 December 2005. The legislative context by which it was introduced and its historical antecedents are touched on by Lindgren J in White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at [55] [60]. I think it is fair to say that the standard which s 31A sets, relevantly in the case of subs (2), '... no reasonable prospect of successfully prosecuting the proceeding ...', apart from the fact that it does not require the proceeding to be hopeless or bound to fail (see subs (3)), has not been settled by an appellate court; and the recent decision of a Full Court in Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60 did nothing to advance this cause. I shall return to this case later in these reasons. 11 In Jefferson Ford , the Full Court was comprised of Finkelstein, Rares and Gordon JJ. Finkelstein J summarily dismissed the standard adopted by Rares J in Boston Commercial in the following words at [21]: '[21] In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 Rares J attempted to describe the requisite standard under s 31A. After reviewing many cases, most from different and not necessarily analogous areas, he came down to the view (expressed at 157) that if there was "a real issue of fact to be decided" or "possibly, where there is a real issue of law" to be resolved the matter should go to trial. This, with respect, does not seem to be very far removed from the old O 14 test. So the standard must be found elsewhere.' 14 In Jefferson Ford at [73], Rares J merely observed that the parties accepted both before the primary judge and the Full Court, that the test to be applied under s 31A of the FCA was that which his Honour stated in Boston Commercial and that in those circumstances, it was not open to the Court to undertake a frolic of its own (again, my words, not his Honour's). 15 Gordon J, relevantly for present purposes, said (at [126]): '[126] ... assessment of whether a proceeding or a part of 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; 3. a review of the evidence (if any) tendered in support of the claim for judgment; 4. identification of the defence pleaded; 5. 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. The method by which such a claim or part of a claim will be assessed will vary depending on the nature of the cause of action, the identity of the parties, the pleaded facts and the evidence, if any, tendered.' 16 Whether one applies the standard adopted by Rares J in Boston Commercial , the indicia of assessment which Gordon J thought s 31A required to be addressed in Jefferson Ford or, applying the tasks which Finkelstein J thought were imposed on a judge when considering an application made in reliance on s 31A, this ground of the motion must fail.