Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60 (15 April 2008)

Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 547 of 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

JEFFERSON FORD PTY LTD (ACN 005 629 897)
Appellant

AND:

FORD MOTOR COMPANY OF AUSTRALIA LIMITED (ACN 004 116 223)
First Respondent

TOM GORMAN
Second Respondent

BRUCE IAN MCDONALD
Third Respondent

STEPHEN KRUK
Fourth Respondent

JUDGES:	FINKELSTEIN, RARES & GORDON JJ
DATE OF ORDER:	15 APRIL 2008
WHERE MADE:	MELBOURNE

2. The notice of appeal filed on 21 June 2007 be treated as having been validly filed.

4. The respondents pay the costs of the appeal and the application for leave to appeal.

5. Orders 3 and 4 made by the primary judge on 6 June 2007 and Orders 1 and 2 made by the primary judge on 4 July 2007 be set aside.

6. The question of costs of the motion filed on 26 April 2007 be remitted to the primary judge.

7. The parties have liberty to apply on 7 days’ notice in respect of any matter arising under Order 6.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 547 of 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

JEFFERSON FORD PTY LTD (ACN 005 629 897)
Appellant

AND:

JUDGES:	FINKELSTEIN, RARES & GORDON JJ
DATE:	15 APRIL 2008
PLACE:	MELBOURNE

1 Two things, I think, are clear. First, the order below, that there be judgment in favour of the cross respondents on the claim based on s 51AC of the Trade Practices Act 1974 (Cth), is a final order from which an appeal lies as of right. Second, the order should be reversed because it can hardly be said that the claim is one the appellant, Jefferson Ford, ought not be permitted to pursue.

2 On the first point, the issue arises because judgment was obtained under s 31A of the Federal Court of Australia Act 1976 (Cth). By that section any party to an action may obtain summary judgment by showing that the other party has "no reasonable prospect" of successfully prosecuting or defending the whole proceeding or any part of the proceeding, as the case may be. There is a view that summary judgment under s 31A is an interlocutory judgment. That view, however, cannot be sustained, as the cases show.

3 Summary judgment has its genesis in O XIV of the English Rules. That rule provided that in certain proceedings a plaintiff could apply for summary judgment for the appropriate remedy on verifying his cause of action and the amount claimed, if any liquidated sum was claimed. If satisfied that the defendant did not have a "good defence" the judge could grant the plaintiff leave to enter final judgment. Judgment could then be entered as an administrative act. In other words, the rule established a two-step process: the order granting leave to enter judgment and the entering of judgment itself.

4 The result of this two-step process is that the first step, the order granting leave, does not operate as a judgment. That is, the order is not effective until judgment is actually entered: Re Gurney [1896] 2 Ch 863. In Adler v Ferguson [1962] VR 129, 129 Sholl J said of the equivalent Victorian rule: "What the plaintiff gets under O XIV is leave to enter a judgment or decree. Unless he then goes and enters it, he still has not got a final judgment or decree at all, and has nothing on which to found execution."

5 In this state of affairs there is no doubt that the order granting leave to enter judgment is an interlocutory order. Looking at the English cases, the first is Standard Discount Co v La Grange (1877) 3 CPD 67. There Bramwell LJ said (at 69-70) of the order granting leave that: "It is like every other order in one sense final, so long as it is not appealed against, but it is not the final order of the Court in the cause, because in order to entitle the plaintiffs to levy execution there must be a subsequent direction by the Court. Therefore, I think it is an interlocutory order." Brett LJ agreed. He said (at 71): "My reason for [holding that the order is interlocutory] is, that the order is not the last step which must be taken in order to fix the status of the parties with respect to the matter in dispute; it is in itself ineffectual, and until a further proceeding has been taken, the plaintiffs cannot recover the debt sued for. Another step must be taken before the status of the parties can be fixed, and that step is the entry of the judgment."

6 The second English case is In re a Debtor (1903) 19 TLR 152. A petitioning creditor founded a bankruptcy notice on an order under O XIV giving leave to sign final judgment for a debt. The judgment was subsequently taken out in pursuance of the order. The debtor appealed an order made by the registrar refusing the debtor’s application to set aside the bankruptcy notice based on the contention that there was no "final judgment" within s 4(1)(g) of the Bankruptcy Act 1883 (UK). The Court of Appeal rejected this argument. The Master of the Rolls, Lord Collins, said that the appeal "was based on a fallacy – viz, a confusion of the interlocutory order, which gave leave to sign final judgment, with the judgment itself, which was final when it was signed."

7 The Australian cases are to the same effect. I will refer only to those in the High Court. In Cox Brothers (Australia) Ltd v Cox [1934] HCA 16; (1934) 50 CLR 314, the High Court held that an order giving leave to enter judgment under O XIV of the Victorian Rules was interlocutory. In reaching this conclusion, the High court applied both Standard Discount Company and In re a Debtor. See also Dudgeon v Chie [1955] HCA 42; (1955) 92 CLR 342.

8 It is important to note that the procedure for obtaining summary judgment in the Federal Court, and nowadays in several states, does not follow the two-step process. Section 31A provides that it is "the Court [that] may give judgment" in respect of a proceeding or a part of a proceeding in prescribed circumstances. Under this regime the moving party does not need to obtain leave to enter judgment. That is also true of the rules that now in operate in New South Wales and Victoria. In relation to the adoption of the one-step process in Victoria, Brooking JA (with whom Batt JA – who knew more about rules of court than most other judges – agreed) said that he "entertain[ed] no doubt" that the summary judgment which the plaintiff obtained (under the new O 14) was not interlocutory: Thomson v Deputy Commissioner of Taxation (Unreported, Court of Appeal, Supreme Court of Victoria, 16 June 2000), 3-4. Brooking JA explained that this was the result of the new rule now providing that it is the court that gives judgment on the claim. The same position has been taken by the appeal court in New South Wales (Nepean Engineering Pty Ltd v Total Process Services Pty Ltd (in liq) [2005] NSWCA 409; (2005) 64 NSWLR 462, 464 holding that: "[A]lthough the order arose out of the notice of motion [for summary judgment], it would appear to finally dispose of rights of the parties and thus not be interlocutory") and in Western Australia (Briggs v Glentham Pty Ltd (1992) 8 WAR 339, 348 where Malcolm CJ (with whom Pidgeon and Rowland JJ agreed) said that summary judgment duly entered pursuant to O 14 "finally determine[d] the rights of the parties in the principal cause pending between them ... [and therefore] satisfied the test for a final judgment"). See also King Investment Solutions Pty Ltd v Hussain [2005] NSWSC 1076, [22]-[26]; Hunt v Knabe (No 2) (1992) 8 WAR 96, 109.

9 Simundic v University of Newcastle [2007] FCAFC 144 is not a contrary authority. The appellant brought an action in the Federal Court alleging unlawful discrimination in contravention of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). The respondent filed a motion to have the application dismissed. The motion did not refer to s 31A as the basis, or one of the bases, upon which the order was sought. Neither the appellant (who appeared in person) nor counsel for the respondent referred to s 31A during argument. In his reasons for granting the relief sought the judge did not mention s 31A. He found that the Federal Court did not have jurisdiction to entertain the application and for that reason dismissed it. The source of his power to make that order was either O 20 r 5 of the Federal Court Rules or the court’s implied jurisdiction.

10 The appellant appealed the dismissal of her claim. The respondent immediately moved to have the appeal struck out. It relied on several heads of power, including s 31A. One reason the Full Court dismissed the appeal was that the appellant required leave to appeal from what was an interlocutory order: see s 24 of the Federal Court Act. That is to say, the Full Court accepted the argument that the order appealed from was interlocutory for the purposes of s 24. That such an order (under O 20 r 5 or the implied jurisdiction) is interlocutory is uncontroversial. However, the Full Court went on to say (at [14]): "The question before the primary judge and on this appeal, was whether the appellant’s proceeding should be dismissed because the appellant has no reasonable prospect of successfully prosecuting the proceedings: s 31A of the Federal Court of Australia Act." This is a badly worded sentence. If the Full Court meant that at trial the respondent had relied on s 31A, it was simply incorrect. It is, I think, likely that the reference to s 31A being in issue before the trial judge crept into the reasons by error. In any event, it is not possible to take what the Full Court said as a considered opinion on the character of an order under s 31A.

11 There are, on the other hand, two Full Court decisions holding that summary judgment is interlocutory. Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179 involved an application to review a decision of the Administrative Appeals Tribunal. The trial judge, assuming that no election was involved, dismissed the application for two reasons. First, he acted under O 53 r 20(1)(a) of the Federal Court Rules, by which the court may dismiss an application to review a decision of the AAT for want of prosecution. Secondly, he held that the application had no reasonable prospect of success and should therefore be dismissed under s 31A. There was then an appeal which the respondent sought to have dismissed, again relying on s 31A. The Full Court dismissed the appeal. It held that that the decision appealed from was interlocutory and therefore the leave of the court was required before the appeal could be entertained.

12 Zoia v Commonwealth Ombudsman Department [2007] FCAFC 143; (2007) 240 ALR 624 also concerned an application for review of an AAT decision that was dismissed at first instance pursuant to s 31A. The Full Court looking at the merits said there was no material which identified any possible error by the trial judge. The Full Court added that the order under appeal was interlocutory and in the absence of leave the appeal was incompetent. The Full Court observed (at 627) that "it is plain" that an order under s 31A is interlocutory. The only authority cited was Re Luck [2003] HCA 70; (2003) 203 ALR 1. That, however, was not a case dealing with s 31A. In that case an action had been dismissed on the ground that it was frivolous, vexatious or an abuse of process. There is ample authority that such an order is interlocutory. That, however, says nothing about an order for summary judgment. In an application for summary judgment, the judge resolves the dispute on the merits. An application that a claim or defence be dismissed as being frivolous, vexatious or an abuse of process rarely involves an inquiry into the merits.

13 Regrettably, in each of Pham and Zoia the Full Court was not referred to the cases that dealt with the point in issue, including cases which the Full Court, on the ground of comity (as to which see Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, 492), was required to follow to reach the opposite conclusion. Perhaps this was because, in both cases, the appellant appeared in person, although the moving party was the Crown and its lawyers were under a duty to refer the Full Court to the relevant cases. To add to the problems, neither court provided justification for its decision, apart from, in one case, a reference to Re Luck. In this unsatisfactory state of affairs both Pham and Zoia can be put to one side as not being of precedential value.

14 It is worth pointing out, by way of postscript, that if an order entering summary judgment under s 31A is not a final order the rights of the parties would not be settled and the losing party would be entitled to apply to a first instance judge to have the judgment set aside. I cannot recall having ever seen such an application. Nor have I been able to find a reported example of one. The position is, of course, different if an application for summary judgment is refused. That order is plainly interlocutory and, in some circumstances, a further application may be made: see eg Wagstaff v Jacobowitz [1884] WN 17; Dombey & Son Ltd v Playfair Brothers [1897] 1 QB 368; Union Bank of Australia Ltd v Lambell (1898) 24 VLR 509; Moldex Ltd v Recon Pty Ltd [1948] VLR 59.

15 Finally on this point I should explain why I take the view (as I do) that although in the cross claim the s 51AC claim was joined with other claims, summary judgment in respect of that claim nevertheless was a final order. There is no doubt that an order disposing of part only of a cause of action is interlocutory: Dunstan v Simmie & Co Pty Ltd [1978] VR 669. But the same is not true where only one of several causes of action is disposed of. Prior to 1852 the rule was that no two causes of action could be joined in one action, except that debt could be joined with detinue and case with trover. The rule was patently unreasonable. It was altered in 1852 in England. From that time a plaintiff could join in one action all of his causes of complaint, subject only to a few exceptions: Common Law Procedure Act 1852 (UK), s 41. Australian courts have adopted a similar rule. Thus, in the Federal Court an applicant may claim relief in respect of more than one cause of action (O 6 r 1) unless it is otherwise inconvenient (O 6 r 6) and, if it is, the usual remedy is separate trials. That one only of several causes of action is the subject of summary judgment leaving the others to be decided at a trial is no reason to treat the order as interlocutory. This is particularly so when, as in the Federal Court, there is no requirement that the causes of action be connected in any way. That is to treat the rule about joinder as a procedural rule which is not intended to have any substantive operation.

16 Anyway, the point is covered by authority. In Hope v RCA Photophone of Australia Pty Ltd [1937] HCA 90; (1937) 59 CLR 348, the plaintiff sued for hire charges, for goods sold and delivered and for money paid at the defendant’s request. The defendant set up a cross action by way of set-off that the agreement for hire included oral terms which had been breached so that the defendant suffered damage which he sought to set off against the plaintiff’s claim. The plaintiff replied that the agreement was wholly in writing and the defendant demurred. The Full Court of New South Wales gave judgment for the plaintiff on the cross action on demurrer and the defendant appealed. The plaintiff applied to have the appeal struck out on the basis that it was incompetent because the judgment appealed from was not a final judgment. The High Court held that it was a final judgment: Latham CJ (at 351) for the reason that he agreed, albeit reluctantly, with the other judges; Rich J (at 351) for the reason that "it finally dispos[ed] of the dispute between the parties" (namely, whether the contract was in writing or partly in writing and partly oral); Dixon J (at 352) for the reason that "[t]he plea by way of cross-action sets up an independent cause of action upon which there may be an independent recovery, and ... the judgment in demurrer was a final conclusion which of itself determined the rights of the parties and concluded the cross action"; and Evatt J (at 353) for the reason that the judgment on the demurrer "finally and forever disposed of that [independent] claim". From every perspective the claim based on s 51AC is an independent claim.

17 Moving to the second issue, namely whether summary judgment was rightfully entered, I am surprised that the judge came to such a clear opinion that Jefferson Ford could not succeed on its claim under s 51AC and decided to cut the matter short and give judgment against it at once.

18 If one goes back to the cases under O 14, they establish that if there is a triable issue the defendant should be permitted to defend the action, even if it may appear that the plaintiff is likely to succeed: Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76, 98. In other words, the power to entertain final judgment is not to be exercised unless it is clear that there is no real question of law or fact to be tried: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. The principle is that if there is a serious, difficult or disputable question of law raised, the case will go to trial: Theseus Exploration NL v Foyster [1972] HCA 41; (1972) 126 CLR 507, 515. The rule received its clearest exposition in Jacobs v Booth’s Distillery Co (1901) 85 LT 262. There Lord Halsbury said (at 262): "There are some things too plain for argument; and where there were pleas put in simply for the purpose of delay, which only added to the expense, and where it was not in aid of justice that such things should continue, Order XIV was intended to put an end to that state of things, and to prevent sham defences from defeating the rights of parties by delay, and at the same time causing great loss to plaintiffs who were endeavouring to enforce their rights." Lord James said (at 262-263): "The view which I think ought to be taken of Order XIV is that the tribunal to which the application is made should simply determine, ‘Is there a triable issue to go before a jury or a court?’ It is not for that tribunal to enter into the merits of the case at all. It ought to make the order only when it can say to the person who opposes the order, ‘You have no defence ... We think it impossible for you to go before any tribunal to determine the question of fact.’ We are not expressing any opinion whatever upon the merits of the case. It appears to me that there is a fair issue to be tried." To put the matter in brief, summary judgment can only be ordered in a plain or obvious case.

19 In the Federal Court it should be more difficult than under O 14 for the party opposing summary judgment to establish the existence of a triable issue. To repeat, s 31A provides that the test to be applied is whether the party against whom judgment is sought has "no reasonable prospect" of successfully prosecuting or defending his claim. And by subsection (3) a claim need not be hopeless or bound to fail for it to have no reasonable prospects of success. It is clear that, by this means, Parliament intended to authorise the court to enter summary judgment in circumstances where it would not have done so under a rule such as O 14.

20 Nonetheless, it is by no means easy to work out what Parliament had in mind by providing for summary judgment where a claim or defence has no "reasonable prospect" of success. For one thing, it is difficult to see how one can assess prospects of success without some attempt at predicting the outcome of the dispute. If the dispute is about factual issues, the task of prediction is fraught with all kinds of difficulties. First of all, in many cases the court will not have before it all the material evidence. Second, if credit is involved it may be impossible to predict how that issue will be resolved. Many of the problems involved in predicting the outcome of an action were referred to by the High Court in Agar v Hyde (2000) 201 CLR 552, 576. Even if the dispute only concerns 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.

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.

22 Perhaps one should look further at what Parliament intended to achieve. In O 14 cases, to show cause against an application for summary judgment, a defendant is required to go into some detail and state clearly and concisely the facts to be relied upon: Country Estates Pty Ltd v Leighton Contractors Pty Ltd (1975) 49 ALJR 173, 173-174. This requires only the material facts to be stated as distinct from the evidence that would establish those facts: Ritter v North Side Enterprises Pty Ltd [1975] HCA 18; (1975) 132 CLR 301, 304. If the test under s 31A raises the hurdle for the opposing party, it may be necessary for that party at a minimum to provide an outline of the evidence that will be relied upon. The outline must be sufficient to show that there is a genuine dispute about facts that are material to the outcome of the case. That will enable the judge to make some assessment of the merits. It would not, of course, be necessary, in most cases, to require the party to do more than provide an outline, because that would turn the summary judgment application into a trial.

23 In other words, the section requires the judge to conduct what might loosely be described as a preliminary trial and look more closely than he would under an O 14 application to a party’s assertion that there is a real question of law or fact to be decided. Such an assertion is to be examined with a critical eye. The judge is to decide whether the opposing party has evidence of sufficient quality and weight to be able to succeed at trial. There will be cases where the asserted facts appear to be so improbable that there is no point in allowing them to go to trial. There will be others where the opposing party has not been able to show that the asserted facts are likely to be established at a trial. On questions of law, the judge should conduct an inquiry into their merit, not for the purpose of resolving them (though this can be done – see Rosser v Austral Wine and Spirit Co Pty Ltd [1980] VR 313, 320) and also not simply to determine whether the argument is hopeless, but in order to decide whether it is sufficiently strong to warrant a trial. If the judge is satisfied that he (or she) is able to resolve any contested legal issue at a summary hearing and without undue delay, it may be better all around if that be done. If not, then at least the merits must be tested. That will then give s 31A a substantial operation, which is what, it seems to me, was intended.

24 In this case the judge found that the case under s 51AC was bound to fail because of the operation of s 51AC(9). By that subsection as it applied at the time, the prohibition against unconscionable conduct created by s 51AC did not apply in relation to goods or services supplied at a price in excess of $3 million (that figure has since been increased to $10 million). That finding was in error. To understand why it is necessary to say a little more about the arrangements that subsisted between Ford Motor Co and Jefferson Ford.

25 There are three dealership agreements with Jefferson Ford, the terms of which are in all material respects the same. The agreements provide for a two-tier arrangement: first there is the dealership itself and second there are the terms upon which motor vehicles and parts will be sold to the dealer. Turning first to the dealership, Jefferson Ford was appointed as an authorised Ford dealer for the marketing, sale and service of Ford motor vehicles and parts from a particular location for a specified term: cl 2.1. It was obliged to establish and maintain suitable facilities to conduct the dealership: cl 10.1. It undertook to "vigorously and actively" promote the sale of Ford motor vehicles and parts in its primary market area (an area defined in the agreement): cl 4.1. It promised to maintain sufficient stocks of Ford products to enable it to fulfil its marketing and sales obligations: cl 4.3.

26 In its capacity as dealer, Jefferson Ford was to receive several benefits from Ford Motor Co. They included: (1) assistance with marketing – cl 5.2(a); (2) the provision of warranties for vehicles it sold – cl 5.2(b); (3) assistance with the planning, establishment and maintenance of its dealership – cl 10.6; (4) subject to Ford’s approval, the right to use the Ford trade marks, business and trade names – cl 14.1; and (5) cooperation with the development of programs designed to promote its goodwill – cl 17(a).

27 It is of significance that Ford Motor Co assumed no obligation to sell vehicles or parts to Jefferson Ford. The dealership agreements stipulate only that Ford "may" sell products to its dealer: cl 2.3. On the other hand, if there were to be sales, the agreements set out the procedure for ordering products and the terms of any sale. For example, cls 6 and 7 specified how orders for vehicles and parts should be placed; cl 8.1 dealt with price, service fees, discounts, allowances and rebates; service of the products was covered by cl 9; and title, risk and returns were dealt with by cls 8.4, 8.5 and 8.6 respectively.

28 It is not in dispute that the dealer agreements constituted contracts between the parties: they comprised binding exchanges for promises. For its part Ford Motor Co agreed to provide services and other benefits to Jefferson Ford. In return Jefferson Ford undertook to take certain action and refrain from taking other action. Importantly, none of the promises on the part of Jefferson Ford involved the payment of money on account of the benefits it received from Ford Motor Co. Naturally, if sales of vehicles or parts to Jefferson Ford or its franchisees take place the position is different. Then Jefferson Ford or its financier falls under an obligation to pay the purchase price.

29 It is against this background that the application of s 51AC must be considered. The section proscribes unconscionable conduct in trade or commerce "in connection with [among other things]: (a) the supply ... [of] services to a person." Section 4 defines "services" to include "any rights ... benefits, privileges or facilities ... provided, granted or conferred." It is beyond any contest that most, if not all, of the rights granted by Ford Motor Co are services for the purposes of s 51AC.

30 In its cross-claim Jefferson Ford has identified as the object of its s 51AC complaint conduct that relates to the dealer agreements. No aspect of its cause of action is concerned with the separate sale contracts that have been entered into under the umbrella of the dealer agreements. The allegation is that Ford Motor Co has engaged in unconscionable conduct to bring the dealer agreements to an end. To follow the language of the statute, the claim is that Ford Motor Co, a corporation, has, in trade or commerce, engaged in conduct in connection with the supply of services to Jefferson Ford (the services Ford Motor Co provides under the dealer agreements) that is, in all the circumstances, unconscionable.

31 That there were many agreements for the sale of vehicles and parts to Jefferson Ford, where the price in aggregate exceeded that stipulated in s 51AC(9), is irrelevant to the cause of action. That is because the allegedly infringing conduct was not "in connection with" the supply of goods but with the supply of services.

32 The trial judge, however, treated the cause of action as being concerned with the supply of goods, thereby attracting s 51AC(9). The judge did not explain how he arrived at that conclusion save to say that: "[I]t seems to be clear that the ‘supply or possible supply’ which the respondent alleges in paras 34, 36, 37 and 38 of the Cross-Claim is that alleged in para 25, namely, the ongoing, regular, supply of goods by the first applicant to the respondent pursuant to the dealer agreements." It is difficult to follow this reasoning. In both paras 25 and 34 – where the impugned conduct was classified in the relevant way – the pleader refers to conduct in connection with the supply or possible supply of "goods or services" (my emphasis). Perhaps the pleader was attempting to keep open which of the two (goods or services) was the true subject of the complaint. But when the pleading is looked at in its entirety it is clear that the claim is confined to conduct connected with the supply of services. This claim cannot be defeated by s 51AC(9) in view of the absence of a price for those services. This is sufficient to found error on the part of the judge.

33 I should say that if my approach is incorrect and this case is to be viewed as one that is concerned with the supply of goods, I agree with Gordon J’s criticism of what has been referred to as the aggregation argument. In a case such as the present where each contract for the sale of goods (vehicles or parts) appears to be unconnected with the others, aggregation is simply not possible. As Gordon J has pointed out, the cause of action under s 51AC is concerned with particular conduct that relates to a particular supply of goods or services. There is simply no basis for aggregating the price of all contracts for the supply of goods or services (as the case may be) between two parties to defeat a claim brought in respect of only one of them. Unless the contracts are in some way connected such that they should be treated as a single arrangement, claims concerning several unrelated contracts for the supply of goods or services give rise to several causes of action.

34 I would allow the appeal with costs, set aside the orders below and in lieu thereof order that the summary judgment application be dismissed with costs.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 547 OF 2007

BETWEEN:

JEFFERSON FORD PTY LTD (ACN 005 629 897)
Appellant

AND:

FORD MOTOR COMPANY OF AUSTRALIA LIMITED
(ACN 004 116 223)
First Respondent

TOM GORMAN
Second Respondent

BRUCE IAN MCDONALD
Third Respondent

STEPHEN KRUK
Fourth Respondent

JUDGES:	FINKELSTEIN, RARES & GORDON JJ
DATE:	15 APRIL 2008
PLACE:	MELBOURNE

35 Jefferson Ford operates three motor vehicle dealerships in the vicinity of Melbourne known as ‘City Ford’, ‘President Ford’ and ‘Jefferson Ford’. In July 2002, Jefferson entered into three Ford dealer agreements with Ford Motor Company of Australia Limited, one for each dealership. Jefferson Ford was appointed as an authorised Ford dealer (cl 2.1). This entitled Jefferson Ford to offer sales and service of Ford motor vehicles and Ford spare parts from each of its three dealership locations.

36 The dealer agreements envisaged that Jefferson Ford may make arrangements with a financier so that it would be able to display vehicles and parts at its dealerships, without itself having directly purchased them from Ford (cl 8). Jefferson Ford entered into arrangements with Esanda (Wholesale) Pty Limited and Esanda Finance Corporation Limited to provide a bailment plan. This is a well-known method of car dealerships financing the stock held at their premises and displayed to the public for the purposes of the ordinary conduct of their business. When Jefferson Ford decided to select a vehicle to display at one of its dealerships, it would notify Ford of its choice. Ford would then send an electronic invoice to Esanda Wholesale for each particular vehicle selected. Esanda Wholesale would pay Ford on each invoice electronically. Esanda Wholesale would then enter details of the vehicle and the financing arrangements on the floor plan account of Jefferson Ford for the particular dealership to which the vehicle was to be delivered. When the vehicle was sold to a customer of Jefferson Ford, it would pay out the outstanding balance due to Esanda Wholesale, including any goods and services tax (GST) applicable. When it received the payment, Esanda Wholesale forwarded a tax invoice to the relevant dealership passing title to Jefferson Ford. It, in turn, would feed a good title to the end purchaser.

37 Over the course of the life of the current dealerships, Jefferson Ford has arranged for the purchase, through the bailment plan, of vehicles for prices totalling hundreds of millions of dollars.

38 In December 2006, Ford together with its associated companies, Ford Motor Company of Canada Limited and Ford Motor Company (incorporated in the United States of America), commenced proceedings in the Court against Jefferson Ford. The Ford companies sought relief on three bases. They claimed that Jefferson Ford:

• had infringed trade marks owned by one or more of the Ford companies by dealing in motor vehicle parts which had not been manufactured, approved or licensed by any of the Ford companies (s 120 of the Trade Marks Act 1995 (Cth));

• had contravened ss 52 and 53(a), (c), (eb) and (g) of the Trade Practices Act 1974 (Cth) because it had engaged in conduct of selling unauthorised spare parts, in effect by representing that the parts were ‘genuine’ Ford spare parts;

• had breached a number of clauses of the dealer agreements by dealing in spare parts which were not ‘genuine’.

39 In its defence Jefferson Ford denied those allegations. It also filed a cross-claim, which is the subject of this appeal. Relevantly, the respondents to the cross-claim included Ford and three of its senior employees. Jefferson Ford alleged that in connection with the supply or possible supply of goods or services to Jefferson Ford, Ford had engaged in conduct in trade or commerce which was in all the circumstances unconscionable, in contravention of s 51AC(1). That claim was based upon conduct alleged to have taken place from late September 2006 until shortly before Ford commenced proceedings in late December 2006. It alleged that the three employees were accessorily liable. The position of the three employees is the same as that of Ford for the purpose of deciding this appeal and it is not necessary to refer to them separately.

• concerned or were made in connection with the supply or possible supply of goods or services by Ford to it within the meaning of s 51AC(1) of the Trade Practices Act;

• were subject to the Franchising Code of Conduct, which was an applicable industry code applied pursuant to Pt IVB of the Trade Practices Act. (This was by force of the Trade Practices (Industry Codes – Franchising) Regulations 1998 (Cth) which made the Franchising Code of Conduct a prescribed code of conduct for the purposes of ss 51AC(3)(g), 51AD and 51AE of the Act.)

41 Ford applied to the primary judge for an order under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) giving judgment for it in relation to so much of the cross-claim as relied upon ss 51AC and 51AD of the Trade Practices Act. His Honour upheld that application and gave judgment for Ford (and its three employees) in relation to those claims. Jefferson Ford filed a notice of appeal from that decision. Ford contended that the appeal is incompetent. It argued that leave to appeal was required because a judgment under s 31A(2) is interlocutory, not final. Jefferson Ford then filed a motion for leave to appeal, if needed. The Court indicated at the hearing of the appeal that, if leave were required, the nature of the issues raised warranted a grant of leave. The following issues arise for determination:

2. Did the primary judge err in construing s 51AC(9) of the Trade Practices Act as precluding Jefferson Ford from being able to rely on s 51AC(1) at all, because since July 2002 it had dealt with Ford for goods worth hundreds of millions of dollars, thereby exceeding the then $3 million limit referred to in s 51AC(9)?

42 Here, Jefferson Ford argues that it does not need leave to appeal but has an appeal of right, because the language of s 31A authorises the Court to "give judgment for one party against another" in relation to the whole or any part of the proceeding. In essence, Jefferson Ford argued that when such a judgment is ‘given’ under s 31A it must be a final judgment.

44 The jurisdiction of this Court to hear and determine matters under the Trade Practices Act is conferred by s 86(1) of that Act. Prior to the enactment of s 31A of the Federal Court of Australia Act, the Court already possessed power to make rules under s 59(2)(l) providing for or in relation to "the prevention or termination of vexatious proceedings". Order 20 of the Federal Court Rules had made provision, among other things, for the Court to give summary judgment for an applicant, conformably with the usual power exercised by superior courts, where there was no defence to a claim or part of a claim (see O 20 r 2): see Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at 267 [15], 269-270 [20]-[26] per Gleeson CJ, Gummow, Hayne and Crennan JJ. The power to make such rules is an incident of the Court’s powers to make provision for or in relation to the practice and procedure to be followed in the Court under ss 38 and 59(1) of the Federal Court of Australia Act.

45 The character of a judgment under s 31A is identified by the test which the section prescribes. The judgment is a determination that the proceeding or part of the proceeding
"... has no reasonable prospect of success". Thus, when the Court gives judgment for a party under s 31A(1) or (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. By enacting s 31A, the Parliament broadened the categories of case in which the power summarily to determine proceedings could be exercised. It is inherent in the power conferred by s 31A that the Court need not, and does not ordinarily determine the proceedings on their merits after a full trial. A decision under s 31A is that the claim or defence has "no reasonable prospect of success". It is not that the claim or defence has been proved so that the right or cause of action or defence merges into judgment and loses its independent existence: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531-532 per Dixon J. Rather, the power conferred by the section authorises 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. The section requires a prediction of the outcome of a trial on the merits but is not an actual adjudication of those merits.

46 In Licul v Corney [1976] HCA 6; (1976) 180 CLR 213 at 225, in an observation which has proved to be both historical and prophetic, Gibbs J observed that the distinction between final and interlocutory judgments is not always easy to draw.

47 In Re Luck [2003] HCA 70; (2003) 203 ALR 1 at 2 [4]; [2003] HCA 70 McHugh ACJ, Gummow and Heydon JJ said that the usual test for determining whether an order was final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. They said:

48 Their Honours observed that in Carr [1981] HCA 20; 147 CLR 246, the Court had held that an order of the Supreme Court of a state refusing to set aside a judgment obtained upon the default of a defendant in delivering a defence was an interlocutory order (Re Luck 203 ALR at 3-4 [8]). They said (Re Luck 203 ALR at 4 [9]):

In arriving at that conclusion McHugh ACJ, Gummow and Heydon JJ followed a decision of the Privy Council on appeal from the Supreme Court of Victoria: viz Tampion v Anderson (1973) 48 ALJR 11 at 12; 3 ALR 414 at 416-417 (see Re Luck 203 ALR at 3-4 [7]-[9]).

49 In a passage cited with approval by the Privy Council in Tampion 48 ALJR at 12E-F and by the High Court in Re Luck 203 ALR at 3 [6], Lord Evershed MR, with whom Birkett and Romer LJJ agreed, said in Hunt v The Allied Bakeries Ltd [1956] 1 WLR 1326 at 1328:

50 In Pye v Renshaw [1951] HCA 8; (1951) 84 CLR 58 at 77 Dixon, Williams, Webb, Fullagar and Kitto JJ held that an order dismissing an action in the event that the plaintiff did not take a step ordered to be taken (in that case amendment of a statement of claim within 21 days) was interlocutory. They applied what Cozens-Hardy MR had said in In Re Page; Hill v Fladgate [1910] 1 Ch 489 at 492. There the Court of Appeal held that an order that proceedings be dismissed on the ground that they were frivolous and vexatious was an interlocutory order.

51 In Port of Melbourne Authority v Anshun Pty Limited (No 1) (1980) 147 CLR 35 at 38 Gibbs J, with whom Mason and Murphy JJ agreed said, in distinguishing Tampion 48 ALJR 11:

Gibbs J held that as a matter of reality, the order made finally disposed of the rights of the parties because the trial judge had stayed a cross-claim as an abuse of process. That stay was ordered on the ground that the matters sought to be litigated could have and should have been litigated in the cross-claim in earlier proceedings. Therefore the parties could not reopen the same subject matter.

52 Recently, in Egglishaw v Australian Crimes Commission [2007] FCAFC 183 at [38]- [44] Finn, Kenny and Edmonds JJ reconciled Anshun (No 1) 147 CLR 35 and Re Luck [2003] HCA 70; 203 ALR 1. They said that Anshun (No 1) 147 CLR 35 was an illustration of a category of case which applied the doctrine of estoppel or res judicata to create a final judgment whereas, Re Luck [2003] HCA 70; 203 ALR 1 was an illustration of a different category of case. In the latter category, a judgment was interlocutory if it decided that a proceeding disclosed no cause of action, was frivolous or vexatious or was to be dismissed on some basis involving no final determination of rights: Egglishaw [2007] FCAFC 187 at [43]- [44].

53 Shortly after Anshun (No 1) 147 CLR 35 was decided the High Court returned to the question in Carr [1981] HCA 20; (1981) 147 CLR 246. There, a mortgagee obtained a default judgment against mortgagors. The mortgagors applied in the Supreme Court of New South Wales to have the default judgment set aside, but that application was refused. The Court of Appeal dismissed an appeal. The High Court held that an order refusing to set aside a default judgment, as a matter of law, did not dispose of the rights of the parties, and was, therefore, interlocutory: Carr 147 CLR at 248 per Gibbs CJ, at 256 per Mason J and at 258 per Murphy J. In Carr 147 CLR at 248 and 255 both Gibbs CJ and Mason J applied the test that had been enunciated in Licul [1976] HCA 6; 180 CLR 213 at 225 by Gibbs J and developed from Taylor J’s judgment in Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at 440. Gibbs J had said that the characterisation of an order being final or interlocutory depended upon the nature of the order made and formulated the following test: "Does the judgment or order, as made, finally dispose of the rights of the parties". Taylor J had said in Hall 117 CLR at 440:

See too Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 per McHugh, Kirby and Callinan JJ at 230 [25]; Sanofoi v Parke Davis Pty Ltd (No 1) [1982] HCA 9; (1982) 149 CLR 147 at 152-153 per Gibbs CJ, Stephen and Mason JJ; In the Matter of an Application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 214 ALR 422; 79 ALJR 881 at 886 [6] 28 per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ, 898 at [100]-[101] per Kirby J.

54 This test has been applied to determine that an order for summary judgment dismissing an application pursuant to Federal Court Rules O 20 r 2 on the basis that it discloses no reasonable cause of action is interlocutory: see Dai v Telstra Corporation Ltd [2000] FCA 379; (2000) 171 ALR 348 at 352 [21] per Hill, Heerey and Hely JJ, applying Weatherall v Satellite Receiving Systems (Australia) Pty Ltd [1999] FCA 741 per Burchett J at [2]-[9]; Dai v Telecommunications Industry Ombudsman [2000] FCA 717 per Beaumont, Whitlam and Lehane JJ at [7]-[8] applying Hall 117 CLR at 440. And in Lashansky v Bruvecchis Pty Ltd [2005] FCAFC 64 at [7]- [16], Madgwick, Lander and Crennan JJ applied Re Luck [2003] HCA 70; 203 ALR 1 to hold that such an order under O 20 r 2 was interlocutory. In Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364 at 371 [16] Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ, obiter, described a challenge to the strength of a party’s case by seeking to have it struck out for disclosing no reasonable cause of action, as being made at the interlocutory level.

55 In Simundic v University of Newcastle [2007] FCAFC 144 at [12], [14] Allsop, Lander and Siopis JJ said, obiter, that an order under s 31A was interlocutory and leave was required to appeal from it. But in that case the Court found that it had no jurisdiction to hear the matter. In Zoia v Commonwealth Ombudsman Department [2007] FCAFC 143; (2007) 240 ALR 624 at 627 [19] Spender J with whom French J and Gilmour J agreed at 629 [26] and [28] also said, obiter, that an order dismissing proceedings under s 31A was interlocutory. After this appeal was argued, French, Lindgren and Jacobson JJ held as one of two grounds for deciding that the application before them was interlocutory, that a decision under s 31A is interlocutory and requires leave to appeal: Pham v Secretary, Department of Employment & Workplace Relations [2007] FCAFC 179 at [2], [14]-[15].

56 Proceedings may still be dismissed, or judgment given, under s 31A of the Federal Court of Australia Act on the ground that the claim or defence is hopeless or bound to fail (i.e. on the basis upon which the summary jurisdiction had been exercised prior to the section’s enactment). However, acceptance of Jefferson Ford’s argument that the section creates a final judgment, would mean that now orders which have previously been considered interlocutory (see Re Luck 203 ALR at 3-4 [8]-[9]) would be converted into final orders.

57 The purpose of introducing s 31A into the Court’s armoury for dealing with litigation which ought not be allowed to go to trial, was to expand the capacity of the Court summarily to dismiss matters. I am of opinion that the legislative intention could not have been to create final, rather than interlocutory, judgments when s 31A is invoked to give a judgment.

58 Jefferson Ford argued that the use of the expression "give judgment" in ss 31A(1) and (2) indicated that the proper construction of the legislation should reflect a legislative intention of finality in the "judgment". However, the word "judgment" when used in s 31A incorporates the definition of "judgment, decree or order" in s 4 of the Act. While s 31A is of general application, it was introduced by the Migration Litigation Reform Act 2005 (Cth). It is safe to infer that one of the purposes of the Parliament in enacting s 31A and its cognate provisions was to enable each of the High Court, the Federal Magistrates Court and this Court to deal under s 31A or its analogues where appropriate with any matter within its jurisdiction. Given that a frequent issue in litigation under the Migration Act 1958 (Cth) was whether constitutional writ relief ought be granted to an applicant, the expression "give judgment" in ss 31A(1) and (2) must have been intended to include a power enabling the Court, expeditiously and without a full trial, to either grant constitutional writ relief or dismiss proceedings in which that relief was sought.

59 Jefferson Ford argued that the expression "give judgment" should be construed as equivalent to the entry by a common law court of an order to pay a money sum or to dismiss common law proceedings for debt or damages. In my opinion, that is too narrow a construction. Its acceptance would impede, rather than advance, the legislative purpose of expanding the Court’s ability to deal summarily with matters.

60 In Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221 at 225-226 Latham CJ, Rich, Dixon, Evatt and McTiernan JJ observed that an order giving judgment on demurrer holding one of several pleas to be bad or giving leave to sign summary judgment was interlocutory. They noted that an interlocutory order which had the practical effect of finally determining the rights of the parties, though interlocutory in form was one which, prima facie, would attract a grant of leave to appeal under the then form of s 35 of the Judiciary Act 1903. They said:

61 Here, it would be inconsistent with the legislative purpose of s 31A and its analogues, which authorise disposal of proceedings or issues without a trial, for a right of appeal to exist from such a disposal. Rather, the legislative purpose would be advanced by a construction that protected the party whose claim or defence had been upheld by an order made under s 31A, from an appeal of right by the opposing party whose case, necessarily, had been found to have no reasonable prospect of success. The filter of leave to appeal from an interlocutory decision affords such a protection. By analogy with the passage I have emphasised from Bucknell [1936] HCA 67; 56 CLR 221 at 226, s 31A should be construed in a manner which advances rather than negates the purpose of the Parliament in providing for speedy determination of unmeritorious litigation.

62 After all this long discussion, I am of opinion that an order under s 31A is an interlocutory order because it does not finally determine the rights of the parties. Rather, it determines that there is no reasonable prospect of either successfully defending or prosecuting a particular cause of action or pleaded case. In that respect the section broadens the Court’s power summarily to terminate proceedings without requiring it to proceed to a final adjudication on the merits of the case.

63 The explanatory memorandum circulated by the Attorney-General for the Migration Litigation Reform Bill 2005 (Cth) which became Act No 137 of 2005: the Migration Litigation Reform Act 2005 (Cth) introduced s 31A by suggesting that it would strengthen the power of the Court "to deal with unmeritorious proceedings by broadening the grounds upon which a court can summarily dispose of proceedings". I have arrived at a similar construction independently of this extrinsic material. However, it confirms the meaning at which I have arrived see: sub-ss 15AB(1)(a), 2(e) of the Acts Interpretation Act 1901 (Cth). In White Industries Ltd v FCT [2007] FCA 511; (2007) 160 FCR 298 at 310-312 [51]- [60] Lindgren J discussed the legislative history and purpose for enacting s 31A and its cognate provisions. He said, and I agree, that the intention of the Parliament in enacting s 31A "... was to lower the bar for obtaining summary judgment (including summary disposal) below the level that had been fixed by such authorities as Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91-92 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129-130": White Industries 160 FCR at 310 [54].

64 Even if the above view of the nature of orders under s 31A is wrong, there is a further and decisive reason why the order was interlocutory in this matter. Here, the order made by the primary judge did not dismiss or determine the whole of Jefferson Ford’s cross-claim. The order did not affect Jefferson Ford’s claims based on ss 52, 80, 82 and 87 of the Trade Practices Act as well as some other claims. Since preparing these reasons I have had the benefit of considering the draft reasons of each of Finkelstein J and Gordon J. I agree with Gordon J that for this reason Jefferson Ford requires a grant of leave to appeal.

65 In Hope v RCA Photophone of Australia Pty Ltd [1937] HCA 90; (1937) 59 CLR 348 at 351-353 Rich, Dixon and Evatt JJ each held that a judgment given on a demurrer to a cross-claim which dismissed the whole claim was final because it finally disposed of the dispute between the parties.

66 Finkelstein J at [16] considers that Hope [1937] HCA 90; 59 CLR 348 supports his view that an order under s 31A is always final. However, the judgment in that case was final because it disposed of the whole cross-claim. Dixon J said when introducing his reasons on the actual appeal (Hope [1937] HCA 90; 59 CLR 348 at 360):

67 There, only one cause of action was raised on the cross-action. The Court was not intending to depart from its considered judgment in Ex parte Bucknell [1936] HCA 67; 56 CLR 221 at 225-226 as Evatt J showed in his judgment on whether the appeal was competent in Hope [1937] HCA 90; 59 CLR 348 at 352.

68 Dixon J said, with the concurrence of Rich J in John Grant & Sons Ltd v Trocadero Building and Investment Co Ltd [1938] HCA 20; (1938) 60 CLR 1 at 35 where a judgment on demurrer did not determine all the issues in the pleading, the judgment was interlocutory, not final: see too, Hall 117 CLR at 444 per Windeyer J; Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 at 360 [57]- [58] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.

69 A demurrer which challenges the whole or part of an opposing party’s pleading puts in issue the actual existence, as a matter of law, of the cause of action or defence. That issue calls for a determination of the merits of the actual claim or defence, as opposed to the determination of whether there is, as s 31A requires, no reasonable prospect that the claim or defence will be successfully prosecuted or defended. And, as Gibbs J observed in Kathleen Investments (Aust) Ltd v Australian Atomic Energy Commission [1977] HCA 55; (1977) 139 CLR 117 at 135, [t] he virtue of proceeding by demurrer is that in an appropriate case it enables a quick decision to be given on a question of law when that will dispose of the whole action.

70 What justifies demurrer as a means of determining a legal controversy is the supposition that the pleading contains only a statement of the material facts on which the party pleading relies for its claim or defence. The Court, even in Judicature Act pleading systems, deals with demurrers on the basis that it discards all statements in the challenged pleading which are no more than evidentiary or involve a legal conclusion, as Dixon CJ explained in South Australia v The Commonwealth [1962] HCA 10; (1962) 108 CLR 130 at 142; see too, Kathleen Investments 139 CLR at 135 per Gibbs J. So, a defendant who demurs to a statement of claim admits, for the purposes of the demurrer, the material facts in the statement of claim but asserts that they do not disclose a cause of action against the defendant; Kathleen Investments 139 CLR at 135. It follows that if the demurrer be upheld by the Court, the legal consequence is a conclusive determination that the plaintiff had no cause of action. But that legal consequence is different in quality and kind to the predictive function exercised by the Court on an application under s 31A, where the issue is the existence or absence of any reasonable prospect of success on the claim or defence of the party challenged.

71 Here, the primary judge’s order had the legal effect that part of the cross-claim remained undetermined. That remaining part was and is able to go to trial. The position is similar to that where a separate question has been heard and determined under O 29 r 2. The power which the primary judge exercised was to give judgment in relation to part of the cross-claim; he was not asked to and did not determine the whole of it. Such a determination is interlocutory. After any trial, Jefferson Ford will have a right of appeal on any matter on which it failed in the proceedings that affected the final result: Gerlach v Clifton Bricks Ltd [2002] HCA 22; (2002) 209 CLR 478 at 483-484 [6]- [8] per Gaudron, McHugh and Hayne JJ. The order under s 31A would preclude Jefferson Ford litigating a cause of action under s 51AC. Thus the order would affect the final result if, in the final orders Jefferson Ford did not achieve all the relief it could have were it successful under s 51AC: cf David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346 at 349B-G per Glass JA, 358F-G per Samuels JA, 359A per Priestley JA (reversed on other grounds Lloyd v David Syme & Co Ltd [1986] AC 350; (1985) 3 NSWLR 728 (PC)) as explained in Gerlach 209 CLR at 484 [8].

72 Accordingly, Jefferson Ford required leave to appeal. Each of the requirements for a grant of leave has been satisfied in the present case. The decision of the primary judge is attended with sufficient doubt to warrant the grant of leave and substantial injustice will be done to Jefferson Ford were the Court to refuse leave: Bienstein [2003] HCA 7; 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ. We indicated during the hearing of the appeal that leave, if required, would be granted.

73 The parties accepted both before the primary judge and before us that the test to be applied under s 31A of the Federal Court of Australia Act was that which I stated in Boston Commercial Services Pty Limited v GE Capital Finance Australasia Pty Limited [2006] FCA 1352; (2006) 236 ALR 720 esp at 731 [45]. Because neither party challenged that test, it is neither necessary nor appropriate to examine it in this appeal for the reasons given in Roy Morgan Research Centre Pty Limited v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72 at 82-83 at [23] per Gaudron, Gummow, Hayne and Callinan JJ; In the Matter of an Application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 79 ALJR 881 at 886 [29] per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ. If the Court were to consider departing from that formulation of the test, the parties are entitled to be heard on the question. The Court’s function is to decide the litigation on the issues fought by the parties. It is not entitled, without either party raising an issue, let alone addressing it, to embark after reserving judgment on a determination of an important question of statutory construction which is not an issue in the litigation.

74 Accordingly, if Jefferson Ford is able to establish that there was a real issue of fact or a real issue of law capable of being decided in its favour then, subject to the Court’s discretion to determine the question of law, the matter ought to be allowed to go to trial in the ordinary way.

75 In effect, Jefferson Ford focused, first, on the ways in which Ford, its three employees, the investigator engaged by it and its principal, who were the other cross-respondents, had embarked upon and conducted the investigation of the allegedly counterfeit sales and, secondly, Ford’s behaviour towards Jefferson Ford and its customers in the last three months of 2006.

76 Jefferson Ford pleaded that Ford had caused the Australian Federal Police to obtain and execute a search warrant at its City Ford dealership in late September 2006. The warrant was executed to seize allegedly counterfeit goods in circumstances where Jefferson Ford alleged that Ford had not provided it with any information. This resulted in the police seizing about $500,000 worth of allegedly counterfeit goods. Immediately afterwards, Ford notified Jefferson Ford that it would be conducting an audit under cl 16.4 of the dealer agreements in respect of motor vehicle parts which were the subject of the warrant. On 5 October 2006, Ford demanded that Jefferson Ford produce all of its records relating to particular motor vehicle part numbers for the period between 1 February 2002 to date, again invoking cl 16.4 of the dealer agreements. A week later Jefferson Ford’s solicitors sought information from Ford about the allegations of counterfeiting. However, Jefferson Ford alleged that over the next two months Ford had refused to respond to about ten requests. Jefferson Ford alleged that it had been providing information to the best of its ability in response to Ford Australia’s demands, but Ford Australia continually asserted that Jefferson Ford was not being fully co-operative in response to Ford’s requests.

77 Jefferson Ford alleged that these matters amounted to Ford engaging in a course of conduct intended to bring about the cessation of the dealerships through the sale by Jefferson Ford of its interest in the dealerships termination of the dealerships agreements by Ford because of Jefferson Ford’s alleged breaches or their non-renewal at the expiry of the five year term on 1 July 2007. This was alleged in the cross-claim to have been a policy of Ford which was conduct intended to prejudice Jefferson Ford’s interests evidenced by particularly:

(a) Ford seeking to disrupt systematically the conduct of Jefferson Ford’s business by making excessive and unreasonable demands on it for vast amounts of documents over the preceding four and a half year period of the dealerships;

(b) seeking to intimidate Jefferson Ford by threatening immediately to terminate the City Ford dealership;

(d) informing Jefferson Ford’s customers that it was selling counterfeit Ford parts as genuine ones;

(e) purportedly exercising rights to conduct an audit under cl 16.4 and entering various offices of Jefferson Ford at times when Ford knew that senior officers of Jefferson Ford would not be able to supervise the alleged ‘audit operation’;

(f) seeking to intimidate, harass and bully Jefferson Ford’s employees in interviews conducted without its permission concerning the alleged sale of counterfeit products;

(g) purporting to exercise powers under the dealer agreements to remove Ford stock and motor vehicle parts without Jefferson Ford’s permission;

(h) systematically importuning Jefferson Ford employees to ‘change their story’ and provide untrue information about the conduct of its business concerning the alleged sale of counterfeit Ford parts;

(i) systematically and deliberately misreporting the providence of parts as ‘counterfeit’ in the conduct of the audit;

(j) alleging that Jefferson Ford was knowingly dealing in counterfeit parts representing them to be genuine;

(k) systematically alleging that in breach of the dealer agreements Jefferson Ford had not allowed Ford to conduct an audit pursuant to cl 16.4;

(l) on or about 8 December 2006 unreasonably refusing to accept an order from Jefferson Ford for 138 Ford motor vehicles for on-sale to Europcar, which would have the consequence of preventing Jefferson Ford from satisfying sales targets set by Ford for its dealers. (Significantly, the value of this order exceeded $3 million including GST);

(m) systematically refusing to provide information in response to reasonable requests made by Jefferson Ford’s solicitors;

(n) on or about 15 December 2006 demanding that Jefferson Ford execute undertakings requiring it, in effect, to admit engaging in the counterfeit sales alleged;

(o) on or about 19 December 2006 demanding that Jefferson Ford sell its dealer agreements within the next 6-12 months on a number of onerous and, so far as Jefferson Ford was concerned, unfair conditions as to continued trading terms. These included the immediate resignation of Simon Jefferson, the principal of Jefferson Ford;

(p) commencing the proceedings against Jefferson Ford instead of pursuing the dispute resolution process of mediation in accordance with cl 27 of the dealer agreements.

78 Jefferson Ford alleged that by engaging in the conduct referred to above Ford had, in trade or commerce in connection with the supply or possible supply of goods or services to Jefferson Ford, engaged in conduct that was in all the circumstances unconscionable and in contravention of s 51AC(1) of the Trade Practices Act. In addition, Jefferson Ford alleged that Ford had contravened s 51AC(1) by:

• seeking to impose unreasonable terms and conditions on it requiring the sale of its dealership within the meaning of s 51AC(3)(b);

• failing to institute the dispute resolution process in accordance with cl 27 of the dealer agreements and bringing the proceedings, Ford had exerted pressure on and used unfair tactics against Jefferson Ford within the meaning of s 51AC(3)(d);

• using pressure and unfair tactics against Jefferson Ford because it unreasonably refused or failed to respond to Jefferson Ford’s requests for information and to negotiate concerning matters in dispute;

• unreasonably failing to disclose to Jefferson Ford its intention to cause or procure the police to issue the warrant and the possibility that Jefferson Ford may have been mistakenly selling as genuine or authorised, what were in fact counterfeit Ford motor vehicle parts, thus putting Jefferson Ford at risk as to its business within the meaning of s 51AC(3)(i).

79 Jefferson Ford also alleged that Ford failed to comply with an applicable industry code within the meaning of s 51AC(3)(g) because of its failure to seek resolution of the dispute prior to instituting the proceedings and that this amounted to a contravention of s 51AD. Finally, Jefferson Ford alleged that Ford had failed to act in good faith in its dealings with it, within the meaning of s 51AC(3)(k) (AB 43-44 par 41). Jefferson Ford alleged that these contraventions of Pt IVA and IVB of the Trade Practices Act had caused it to suffer loss and damage.

80 The relevant provisions of s 51AC as it stood prior to the increase in the amount referred to in s 51AC(9) and (10) to $10 million on the commencement of the Trade Practices Legislation Amendment (No 1) Act 2007 (Cth) are set out in the schedule to Gordon J’s reasons for judgment.

81 Ford never sought particulars of any allegations in the cross-claim relating to any supply or possible supply of particular goods or services on which Jefferson Ford relied the subject of Ford’s alleged unconscionable conduct.

82 The primary judge accepted Ford’s argument that the supply of goods upon which Jefferson Ford relied for the purposes of its claim under s 51AC was for a value of more than $3 million and that therefore the cross-claim was not maintainable. He gave no consideration to the allegations concerning the supply or possible supply of services.

83 The primary judge accepted Ford’s argument on the construction of s 51AC(9). He said:

84 His Honour then concluded that the supply to which s 51AC(1) referred could operate by reference to course of dealing or proposed dealing "... even in the absence of the existence, at the time when the question comes to be asked, of a contractually-based transaction underpinning the relevant supply or supplies".

85 The primary judge said that the allegations of unconscionable conduct were not tied to any particular transaction by way of supply and, indeed, he said that they could not be. He said that Jefferson Ford in the circumstances had to identify a supply or course of supply to it by Ford. He reasoned that Jefferson Ford had to use the ongoing course of supply of both vehicles and parts pursuant to the dealer agreements. His Honour accepted the evidence of Ford that between 1 July 2002 and 31 July 2007 the value of parts purchased by Jefferson Ford from Ford exceeded $106 million. He said that in the period between October 2006 and February 2007 the wholesale value of the parts purchased exceeded $9 million and that the aggregate parts purchased by Jefferson Ford for any two successive months within that period was in excess of $3 million.

86 His Honour also said that Ford had led evidence to show that the wholesale value of vehicles purchased by Jefferson Ford from it between 1 January 2005 and 1 April 2007 exceeded $286 million and that between October 2006 and February 2007 the figure exceeded $54 million. (This finding ignored the bailment plan with Esanda Wholesale.) He found, for the purposes of s 51AC(11) that the amount paid or payable for the goods supplied or possibly supplied by Ford to Jefferson Ford as alleged in the cross-claim exceeded $3 million. The primary judge continued:

87 His Honour did not refer to any authorities to support his construction that s 51AC(9) was "a kind of deeming provision". I am of opinion that his Honour erred in so construing the section. It is in substance an exception to the operation of the norm of conduct prescribed in s 51AC(1).

88 The proscription in s 51AC(1) is directed to a corporation, here Ford, in connection with an actual supply or a possible supply of goods or services to a person in Jefferson Ford’s position, in connection with which the corporation engages in conduct that is in all the circumstances unconscionable. Thus the section calls attention to the relevant supply or possible supply concerned. The cross-claim alleged that in the period between late September 2006 to late December 2006, Ford’s conduct, was unconscionable. It did not impugn Ford’s prior conduct.

89 The starting point in approaching the construction of s 51AC(9) is Vines v Djorkjevitch [1955] HCA 19; (1955) 91 CLR 512 at 519-520 where Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ said:

90 Because s 51AC(9), in substance, allows the general operation of s 51AC(1) to be eschewed, there is a substantial basis for construing the section as placing an onus on the corporation to plead and prove the grounds of the exculpation: see too Banque Commerciale SA (en liquidation) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 285-286 Per Mason CJ and Gaudron J, 290 per Brennan J; Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 at 257 per Dawson, Toohey and Gaudron JJ.

91 In Monroe Topple & Associates Pty Limited v Institute of Chartered Accountants in Australia [2002] FCAFC 197; (2002) 122 FCR 110 at 140-141 [114]- [117] Heerey J (with whom Black CJ at 113 [2] and Tamberlin at 149 [162] agreed on this issue) said that s 51AC(1) is directed to conduct in trade or commerce in connection with a particular kind of transaction, namely the supply or acquisition of goods or services to or from a person (other than a listed public company). The persons concerned are the supplier and the business consumer. Heerey J saw that conclusion as being reinforced by the factors identified in s 51AC(3) and (4). He agreed with the trial judge’s view that the present s 51AC can be traced back to the original recommendation of the Swanson Committee (Trade Practices Act Review Committee of August 1976) that unconscionable conduct be prohibited ‘... to give the Act a greater ability to deal with the general disparity between buyers and sellers’: Monroe Topple 122 FCR at 141 [116]; see too Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants of Australia [2001] FCA 1056; (2001) ATPR (Digest) SS46-212 at 52,363 [259]- [260] per Lindgren J.

92 In the second reading speech introducing the Bill for the Trade Practices Amendment (Fair Trading) Act 1998 (Cth) which enacted s 51AC, the Minister for Workplace Relations and Small Business said:

93 The explanatory memorandum circulated by the Minister for Financial Services and Regulation in support of the Trade Practices Amendment Bill (No 1) 2000 (which became the Trade Practices Amendment Act (No 1) 2001; No 63 of 2001) described the proposal to increase the transactional limit in s 51AC from $1 million to $3 million was as also increasing small businesses’ access to the unconscionable conduct provisions of the Act (EM pp 5 and 11). During submissions we were also referred to the legislative history of the amendments made by the Trade Practices Legislation Amendment Act (No 1) 2007 (Act No 159 of 2007), however that material cannot have any bearing on the proper construction of the legislation previously enacted by the Parliament.

94 Ford argued that the references to transactional limit in the parliamentary materials, somehow, assisted in arriving at a construction authorising the aggregation of all transactions entered into between the corporation and the small business consumer.

95 In Overlook v Foxtel (2002) ATPR (Digest) SS46-219; [2002] NSWSC 17 at [95], Barrett J held that where there was a continuum of supply or acquisition under a single contract over a period:

96 I agree with the difficulty which McDougall J expressed (without deciding) about this construction in Gilsan (International) Ltd v Optus Networks Pty Ltd [2004] NSWSC 1077 at [176] namely:

97 The prohibition in s 51AC(1) is against a corporation engaging in certain conduct "in connection with" the actual or possible supply of goods or services to a consumer. A non-exhaustive list of matters to which the Court may have regard in assessing the impugned conduct is set out in s 51AC(3). Where a corporation is negotiating the terms of a proposed contract with a consumer and it engages in conduct which might fall within s 51AC(1), it may be relevant to consider the aggregate value of transactions anticipated to be conducted in the future under the contract when it is made. That is because there is a connection between the conduct of negotiation and the total price payable for the supply or possible supply of the goods or services.

98 Once the corporation and business consumer enter into a formal contract or relationship, s 51AC(1) may or may not be enlivened even if the price or cost of the original transaction or series of transactions exceeded the amount in s 51AC(9). Critically, s 51AC(1) requires the Court to examine conduct "in all the circumstances". One circumstance is the connection to the relevant supply or possible supply concerned. And, in that regard s 51AC(6) precludes the Court considering "any circumstances that were not reasonably foreseeable at the time of the alleged contravention". The time of an alleged contravention may assist in identifying whether it occurred "in connection with" a particular supply or proposed supply or with an aggregation of supplies and or proposed supplies for a total amount exceeding the limit in s 51AC(9). In ss 4(1) and 4C ‘supply’ is relevantly defined as:

99 Thus, in s 51AC(1) when "supply" is used as a noun, it conveys the meaning that the occasion to which the connection must be made is, in the case of goods, a dealing which results in the goods being provided to, or at the disposal of, the consumer. Here, for example, supply under s 51AC(1) could include the supply of a new vehicle or vehicles to Jefferson Ford by Ford on the bailment plan with Esanda Wholesale. Ford’s argument is, however, that necessarily every supply of vehicles which occurred since July 2002 when the dealer agreements commenced together with projected future supplies, must be aggregated.

100 The construction of s 51AC(1) is informed by ss 51AC(9), (10) and (11). In s 51AC(11)(e) the capital value of loan or loan facility is deemed to be part of the price. Thus, a borrower who defaults in servicing a loan cannot instance the small amount of the default, divorced from the capital value of the loan, or the occasion for attracting s 51AC(1). The price for the service of providing a loan is made, by force of s 51AC(11)(e) to include not only interest and borrowing charges, but also the capital amount. The price for a supply or possible supply in the course of other long term relationships, involving one large initial payment but ongoing smaller ones, must be characterised at the time of the alleged contravention in accordance with s 51AC(11).

101 Importantly, s 4B(2)(c), which is applied by s 51AC(11)(b) to ascertainment of the price under s 51AC(9), contemplates transactions with the supplier in which more than the relevant goods or services are supplied together. That is a powerful indication that the Parliament did not intend the price of every dealing in connection with the relationship in s 51AC(1) to be aggregated under s 51AC(9).

102 If the price for the supply or possible supply of goods or services alleged to be made in connection with the conduct said to be unconscionable exceeded $3 million, that conduct, which would otherwise be proscribed by s 51AC(1), would fall outside its reach. The object of s 51AC(1) is to prescribe an important norm of conduct constraining the behaviour of corporations in trade or commerce: cp Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12; (2000) 202 CLR 45 at 85 [103] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; Australian Securities and Investments Commission v Edensor Nominees Pty Limited [2001] HCA 1; (2001) 204 CLR 559 at 590-591 [66]- [67] per Gleeson CJ, Gaudron and Gummow JJ. I am of opinion that the substance of s 51AC(9) is to provide an exclusion from liability which would otherwise be imposed by the application of the general norm provided in s 51AC(1). Accordingly, it was for Ford to establish that the price of whatever goods and services were ultimately alleged to have been the subject of the supply or possible supply established in Jefferson Ford’s claim exceeded the threshold of $3 million.

103 There is no deeming effected by s 51AC(9). Rather, the section provides an exclusion or exception from the general norm of conduct expected of corporations dealing with small business consumers. Thus, s 51AC(3)(g) contemplates that the parties may be in a relationship governed by an applicable industry code under franchising arrangements. It would not be unusual for the value of all trade under the franchise agreement to exceed, when aggregated, $3 million. If the franchisor could aggregate all its sales to a franchisee, as Ford contends, a small business person may receive no protection at all. The aggregation of all transactions in a business relationship, such as a franchise arrangement, does not appear to be a construction supported by provisions such as s 51AC(11)(b). If the relationship lasted or was to last a year, and the goods and services, when aggregated, totalled less than $3 million, a small business franchisee may be able to benefit from reliance upon s 51AC(1) against the franchisor. But, if the relationship lasted, say 18 months, and the aggregated total of transactions exceeded the $3 million, it would not. In my opinion, such a construction of s 51AC would negate the protection which the Parliament sought to provide small businesses against corporations engaging in trade or commerce in unconscionable conduct.

104 His Honour fell into error by treating s 51AC(9) as a deeming provision and relying upon trading transactions well before the period in late 2006, when Ford was alleged to have engaged in unconscionable conduct. Moreover, his Honour did not require Ford to articulate its defence to each possible claim made by Jefferson Ford in its cross-claim to see that that could not possibly succeed.

105 It is important to focus attention on the way in which ss 51AC(9) and (11) operate together. First, s 51AC(9) directs attention to the supply or possible supply of particular goods or services at a price in excess of $3 million. So, one must look for a transaction or transactions with a price. This construction is reinforced by the provisions of s 51AC(11)(a). Importantly, that paragraph is made subject to the following provisions of s 51AC(11). Initially, s 51AC(11)(a) defines the price for the supply or possible supply of goods or services to a person as being deemed, or "taken", to be "... the amount paid or payable by the person for the goods or services". Next, s 51AC(11)(b) causes s 4B(2)(c) to apply to the ascertainment of the price. The latter provision recognises that a person may purchase goods or services together with other property or services or with both other property and services, yet a specified price is not allocated to the particular goods or services which are being considered. Thus, s 4B(2)(c), as applied to s 51AC, reinforces the construction that aggregation of all the amounts paid or payable by Jefferson Ford to Ford or in respect of goods supplied by Ford over the whole of the period of their relationship is not the ordinary and natural meaning to be placed on the expression "price" in s 51AC(9).

106 Last, s 51AC(11)(e) identifies that the price for the supply or possible supply of a loan or loan facility includes the capital value of the whole loan or facility. Thus, the price or price is not the amount required for repayment on any periodic date throughout the term of the loan. In considering the price or price payable in respect of the loan, it must be recalled that a loan itself is a cognate transaction involving a drawdown or borrowing by the debtor and provisions relating to the repayment of the debt together with interest. A loan transaction is quite distinct from the relationship contemplated under the dealer agreements. There, a variety of services, as defined in s 4(1) of the Trade Practices Act, is provided by each of Ford and Jefferson Ford to the other. These include the right of Jefferson Ford to place orders with Ford for motor vehicles or spare parts or both and to arrange for payment for those goods. In the case of the supply of motor vehicles, payment could be made through the use of a financier, such as Esanda Wholesale.

107 The gravamen of Jefferson Ford’s complaint was that Ford was acting unconscionably in the manner in which it invoked its rights under and in connection with the dealership agreement in the period between September 2006 and December 2006. Jefferson Ford did not impugn any conduct of Ford before that time. Thus, sales prior to late September 2006, prima facie, had nothing to do with the conduct complained of. It may be that Ford will be able to articulate a pleading which makes those sales relevant to excepting it from any liability to which it may be found to be exposed based on Jefferson Ford’s allegations. When Ford asserted that it was entitled to send auditors into Jefferson Ford, it is difficult to conceive how there was a "price" payable for the services which Jefferson Ford was to provide in accordance with the fulfilment of any contractual obligations to permit or facilitate a proper audit.

108 The consequence of Ford’s primary argument in favour of aggregation is that the longer the corporation and small business consumer have a relationship, or are likely to have it, the less chance that the "price" will be less than the amount in s 51AC(9). And this will be so regardless of the circumstances of the particular conduct, which may be one occasion well into the term of the relationship in respect of a relatively small price for supply or possible supply of goods or services. What if the services then said to be the subject of unconscionable conduct were the rights to enter into a new franchise agreement for a price less than $3 million? In my opinion, the last example is reasonably capable of supporting a claim of a contravention of s 51AC(1) notwithstanding earlier dealings which in aggregate exceeded $3 million. Of course, context and all the circumstances may lead at a trial to a different answer.

109 The Parliament enacted s 51AC to protect small business consumers. Some capriciousness can be seen in different examples of how the amount in s 51AC(9) can be calculated and applied in differing situations. I am of opinion that a purposive construction of the section favours the approach I have adopted (see s 15AA of the Acts Interpretation Act) and will better reflect the intention of the Parliament.

110 A critical question, which the primary judge did not address, was what was the price of Ford providing the "services" of recognising Jefferson Ford’s rights, in terms of its contractual entitlements, under the dealer agreements from time to time. Each dealer agreement was a contract defining the terms on which Ford and Jefferson Ford would deal with one another over a five year term. In itself, the dealer agreement did not stipulate any price for the regulation of that relationship or the supply of goods, or services in the form, among others, of rights of both of the parties to it.

111 And, the dealer agreements contemplated that from time to time separate contracts would be made between Ford and Jefferson Ford. Those new contracts would have regard to the general terms of trade set out in the dealer agreements, but were themselves individual transactions. Although those individual transactions incorporated some of the provisions of the dealer agreements by reference, including Ford’s terms of trade for the sale of motor vehicles, the individual transaction using the bailment plan or individual purchase by Jefferson Ford of a motor vehicle, motor vehicles or spare parts, was a new and distinct contract. Jefferson Ford was not bound, as a matter of contract to buy any particular car or cars or spare parts at any time or times. No doubt if it failed to meet certain performance targets, the dealer agreement contemplated reviewing the ongoing relationship. But that situation is distinct from any conduct complained of by Jefferson Ford involving the supply or possible supply of services. Its right to continue to be a Ford dealer under the dealership agreements may have had a value. That value may or may not be worth more than $3 million. Whatever its value was, is likely to depend upon the facts of the case. There was no investigation during the summary hearing before the primary judge of what the supply or possible supply of services in that relationship was worth. And, that relationship was quite distinct from the individual transactions for the purchase and sale of motor vehicles or spare parts, which occurred throughout the course of dealings between Ford and Jefferson Ford. Importantly, there did not appear to be any "price", in terms of a dollar amount, payable by Jefferson Ford to Ford or vice versa upon the entry into the dealer agreements.

112 It is essential to identify the particular conduct, particular circumstances and the particular supply or possible supply complained of in order to determine whether s 51AC(9) operates to exclude that supply or possible supply from the norm of conduct imposed on a corporation by s 51AC(1). It is not possible to analyse Jefferson Ford’s cross-claim here in that way on the material presently available so as to conclude under s 31A of the Federal Court of Australia Act that the claim under s 51AC of the Trade Practices Act has no reasonable prospect of success.

113 The claim is not particularly well pleaded nor has it been particularised. I am of opinion that until it is properly pleaded and particularised no decision can be made that it has no prospect of success. Suffice to say that, the conduct complained of is capable of being related to a supply or possible supply which is worth less than $3 million. If that is done, a real question may arise as to whether that supply or possible supply can stand alone or should be aggregated to increase the price to one greater than is s 51AC(9).

114 I am of opinion that these matters demonstrate that there was a triable issue on the evidence as to whether the exception in s 51AC(9), properly construed, excluded the operation of s 51AC(1) in the circumstances. Because the appeal has been conducted upon materials which may be quite different to the evidence that may be adduced at a trial, it is important, not to descend into the detail of individual dealings. Rather, the question is whether on the pleaded case and having regard to the evidence Jefferson Ford has no reasonable prospects of succeeding in establishing at a trial a real issue of fact and or law. There are some inadequacies in the pleading of the cross-claim, which may require further attention. But this appeal is not concerned with the issue of striking out or reformulating the cross-claim relating to the unconscionable conduct claims. I am satisfied that his Honour applied an erroneous construction to s 51AC and erred in dismissing that claim.

115 I am of opinion that the primary judge is in a better position than we are to determine how the costs of the various applications should be apportioned having regard to the consequence of the appeal being allowed. I would remit the question of costs of the applications to his Honour, but in case of difficulty reserve liberty to apply to us on this issue.

116 For these reasons, I am of opinion that the following orders should be made:

2. The notice of appeal filed on 21 June 2007 be treated as having been validly filed.

4. The respondents pay the costs of the appeal and the application for leave to appeal.

5. Orders 3 and 4 made by the primary judge on 6 June 2007 and Orders 1 and 2 made by the primary judge on 4 July 2007 be set aside.

6. The question of costs of the motion filed on 26 April 2007 be remitted to the primary judge.

7. The parties have liberty to apply on 7 days’ notice in respect of any matter arising under Order 6.

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 547 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

JEFFERSON FORD PTY LTD (ACN 005 629 897)
Applicant

AND:

JUDGES:	FINKELSTEIN, RARES, GORDON JJ
DATE:	15 APRIL 2008
PLACE:	MELBOURNE

117 On 6 June 2007, pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"), judgment was entered for the Ford Motor Company of Australia Limited ("Ford"), Tom Gorman (the Chief Executive Officer of Ford), Bruce McDonald (a Vice President of Ford) and Stephen Kruk (the Regional Manager Southern Region of Ford) (collectively "the First to Fourth Cross-Respondents") on that part of a Cross-Claim filed by the Respondent, Jefferson Ford Pty Ltd (ACN 005 629 897) ("Ford"), based on s 51AC of the Trade Practices Act 1974 (Cth) ("the Act").

118 Judgment was entered on the grounds that the amount paid or payable for goods supplied or possibly supplied by Ford to Jefferson Ford and which were the subject of the Cross-Claim exceeded $3,000,000 and therefore that part of the Cross-Claim was bound to be defeated: s 51AC(9) of the Act. As these reasons for decision will demonstrate, the trial judge erred when judgment was entered on that basis.

119 The appeal concerns the proper construction of s 51AC of the Act and, in particular, the monetary limit exception in s 51AC(9). The issue may be simply stated: where the supply used to invoke the operation of s 51AC is a series of transactions, in calculating the "price" of that supply for the purposes of s 51AC(9), are the prices of the transactions in that series to be aggregated? A further issue is whether the entry of judgment pursuant to s 31A of the Federal Court Act was final or interlocutory and, if interlocutory, whether Jefferson Ford should be given leave to appeal.

120 As these reasons will demonstrate, where the supply used to invoke the operation of s 51AC is a series of transactions, the "prices" of the series of transactions are not to be aggregated in calculating the "price" of the supply for the purposes of s 51AC(9). So much is clear from the express words of s 51AC. The legislative history, the object of the section and commercial reality further support that conclusion.

121 However, before turning to consider the proper construction of s 51AC of the Act, it is necessary to say something about s 31A of the Federal Court Act.

123 Section 31A is a summary procedure. It enables the Court to give judgment where a proceeding or part of a proceeding has "no reasonable prospects of success". A number of principles inform consideration of an application for judgment under s 31A of the Federal Court Act.

124 First, the express words of s 31A impose a different and less stringent test to that described in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129-30. As was explained in the second reading speech of the Migration Litigation Reform Bill 2005 which introduced s 31A of the Federal Court Act, the legislative purpose of s 31A was 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": Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 70 IPR 146 at [45]; Paramasivam v University of New South Wales [2007] FCAFC 176 at [41] and PZ Cussons (International) Limited v Rosa Dora Imports Pty Ltd [2007] FCA 1642 at [13].

125 That such a provision should exist is not surprising. In modern litigation, cost and delay are two prominent features of the legal landscape: Gleeson CJ (1998) Commentary on Paper by Lord Browne-Wilkinson (Supreme Court of New South Wales Judges’ Conference) http://www.hcourt.gov.au/speeches/cj/cj_cj2.htm (viewed 26 November 2007) (stating that "civil litigation is far too expensive" and "there should be an increased emphasis on summary disposal of proceedings which are amenable to such treatment"). Section 31A is a provision which permits, and assists, the Court to manage proceedings and therefore assists in controlling the cost of, and delays in, resolving proceedings by summarily dismissing claims which have no reasonable prospect of success. At the same time, it is a provision that ensures that no injustice is done to a party. The mechanism adopted to achieve these objectives is that before judgment is entered, the claim or part of the claim must have "no reasonable prospect of success."

126 Secondly, assessment of whether a proceeding or a part of a proceeding has no reasonable prospects of success will necessarily require:

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;

5. identification of any facts pleaded which are said to give rise to the defence; and

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.

127 Thirdly, each case must be considered separately. No particular hard and fast rules can be set down, only general principles. One principle is that the moving party bears the onus of persuading the court that the opponent has no reasonable prospect of success (see Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328 at 333). As noted earlier, however, s 31A has lessened the standard that must be met. In that regard, it must be emphasised that once a moving party has established a prima facie case that the opponent has no reasonable prospect of success, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary; general or
non-particularized denials will be insufficient to defeat the motion: see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [22]. In other words, it is inappropriate in defence of a claim for judgment under s 31A of the Federal Court Act to seek to defend by merely putting a claimant to formal proof: Vans, Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 at [12]. This is not a new concept. It finds earlier reflection in ss 190(4) and 191 of the Evidence Act 1995 (Cth) and O 33, O 34 and O 34B of the Federal Court Rules.

128 Another, fourth principle, is that the trial court’s decision to grant summary judgment is to be made as a question of law and reviewed as such by the appellate court. Although ss 31A(1)-(2) state that the court "may" give summary judgment, the word "may" is used here in its empowering sense, not in a discretionary sense: Leach v R [2007] HCA 3; (2007) 230 CLR 1 at [38]; Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 at 134-35 and Automotive, Food, Metals Engineering, Printing and Kindred Industries Union v Mechanical Engineering Services Pty Ltd [2007] FCA 1736 at [21] (collecting cases where the use of "may" in a statute was "to confer a power and not a discretion"). As the High Court explained in Mitchell v R (1996) 184 CLR 333 at 345-46 (footnotes omitted):

129 As in the cases cited, s 31A must be read as conferring a power while indicating the circumstances in which it is to be used, ie, when there is "no reasonable prospect of success". To construe the statute otherwise would give judges discretion to allow even hopeless cases to proceed, which could not have been within the contemplation of a legislature that intended to make summary judgment easier to obtain. Therefore, to the extent that previous decisions of the Federal Court may be understood as suggesting that s 31A confers a general discretion (eg Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 70 IPR 146 at [45]), such a construction of the statutory language is rejected.

130 A fifth principle is that 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: see Boston Commercial Services at [44]. 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": see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20] (stating that summary judgment should be made by reference to the pleadings, affidavits, and other evidence as appropriate under the circumstances) and Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) [2006] FCA 1416 at [32]. 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.

131 By contrast, the existence of a real issue of law does not necessarily preclude summary judgment. This is so because, assuming that there is no relevant factual dispute (or if the relevance of the factual dispute depends, as in the instant case, on the resolution of the legal dispute), the court can generally hear and decide a disputed point of law without the need for a trial or evidentiary hearing. In such cases, the proper course for the court would be to accept submissions and hear argument from the parties in connection with the notice of motion hearing. Even under the earlier, different and more stringent test, "argument, perhaps even of an extensive kind" was permitted "to demonstrate that the case of [a party] is so clearly untenable that it cannot possible succeed": General Steel Industries at 130. Once the court resolves the issue or issues of law, it will then be clear whether the opposing party has reasonable prospects of success and summary judgment can be granted or refused accordingly.

132 I now come to a final, sixth principle, which is that in determining whether a real issue of fact exists such as to preclude summary judgment, the court must draw all reasonable inferences - but only reasonable inferences - in favour of the non-moving party: Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) [2006] FCA 1416 at [30]; Boston Commercial Services at [45]. I emphasize "reasonable" because it is on this point that the lowering of the bar effected by s 31A becomes clear. By distinguishing between "hopeless" cases and those without reasonable prospects for success, the statute makes clear that the court need not (indeed, must not) refuse summary judgment on the basis of a factual dispute said to arise only from a plausible, as opposed to a reasonable, inference.

133 It may be useful to illustrate the distinction by way of a hypothetical question: Suppose that A moves for summary judgment in a case where the critical fact is whether A was at home at 11am. In support of the motion, A submits: (1) an affidavit from his neighbour stating that the neighbour saw A watering his lawn at approximately 11am; (2) a photograph taken by the neighbour of A watering his lawn, with a time stamp of 10.48am, attached as an exhibit to the affidavit; (3) an affidavit from a delivery person stating that she spoke with A at approximately 11am; (4) her mobile telephone records, showing a 3-minute call to A’s home number at 11.08am, attached as an exhibit to the affidavit; and (5) an affidavit from A himself stating that he was at home between 10.30 and 11.30am. In opposition to the motion, B submits: (1) an affidavit from a parcel delivery person stating that he rang A’s doorbell at approximately 11am to deliver a package, waited one minute, and then left when no one answered; and (2) attached as an exhibit, a print-out from the delivery company’s records, downloaded from the delivery person’s portable data entry device with a time stamp of 11.02am, stating that a first delivery attempt was made but no one was at home.

134 On this evidence, B argues that there is a real issue of fact as to whether A was at home at 11am and thus summary judgment is inappropriate. There is, however, no direct contradiction (as there would be if, say, B had submitted an affidavit from C saying that he and A were at D’s house at the time in question); rather, the question is what inference should be drawn from A’s failure to answer the doorbell at 11am in light of the pleadings, affidavits, and other supporting materials. One plausible inference is that A was not at home at 11am. Another plausible inference is that he was at home, but in the bathroom or otherwise unable to hear or answer the doorbell in time. It might be difficult to say that B’s case is hopeless or bound to fail on this evidence and the plausible inference drawn therefrom, however, under s 31A that is not the question. Instead, the court must ask which of the plausible inferences, if any, are reasonable inferences. In the hypothetical, the inference that A was not at home at 11am is not reasonable and thus B’s opposition would be insufficient to withstand A’s motion for summary judgment.

135 With those principles in mind, I now turn to consider the matters identified in
para [126] above.

136 Ford carries on the business of design, manufacture, assembly and supply of passenger, commercial, recreational and other vehicles together with their marketing, sale and service by a system of independent authorised dealers.

137 On 1 July 2002, Ford and Jefferson Ford executed Ford Dealer Agreements under which Ford appointed Jefferson Ford an Authorised Ford Dealer ("the Dealership Agreements"). Ford (and three related entities) (collectively "the Ford entities") assert that in breach of those Dealership Agreements and contrary to ss 52 and 53 of the Act, Jefferson Ford advertised and sold motor vehicle parts under or by reference to certain names and trade marks owned by the Ford entities when the parts had not been manufactured, approved or licensed by those entities. Other causes of action are pleaded by the Ford entities but do not need to be considered for the purposes of resolving this appeal.

138 Jefferson Ford joined issue with the claims of the Ford entities and filed a cross-claim against a number of parties including the First to Fourth Cross Respondents. This appeal concerns Jefferson Ford’s cross-claim that in the context of the Dealership Agreements, Ford engaged in unconscionable conduct contrary to s 51AC of the Act and that each of the second, third and fourth cross respondents aided, abetted, counselled or procured Ford to engage in that conduct and were directly or indirectly knowingly concerned in or parties to that conduct. The other causes of action pleaded in Jefferson Ford’s cross claim may be put to one side.

139 Section 51AC is directed not to trade or commerce generally. It is concerned with conduct, in trade or commerce, in connection with the supply or acquisition of goods or services to or from a person (other than a listed public company): Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia [2002] FCAFC 197; (2002) 122 FCR 110 at [114] (per Heerey J).

140 Section 51AC is comprised of a number of elements. An extract of s 51AC, as it was in force at the relevant time, is in Schedule 1.

1. First, there must be a supply or possible supply of goods or services by a corporation (described as the "supplier") to a person other than a listed public company (described as the "business consumer").

2. Second, having identified the supply or possible supply, the conduct complained of must be in connection with that supply or possible supply. The phrase "in connection with" in s 51AC requires that the conduct complained of "accompany", "go with" or "be involved in" the supply of goods or services: Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2001) ATPR 46-212 at [260] (per Lindgren J) and Boase v Seven Network (Operations) Ltd [2005] WASC 89 at [23].

3. Third, in all the circumstances, the conduct must be unconscionable. Section 51AC(3) provides a non-exhaustive list of the matters the court may have regard to in determining whether the conduct is unconscionable: Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2001) ATPR 46-212 at [254]. However, any circumstances that were not reasonably foreseeable at the time of the contravention are not to be taken into account: s 51AC(6)(a) of the Act.

141 As the express words and history of s 51AC make clear, its object is to protect the "business consumer" or "small business supplier": Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia (2001) ATPR 46-212 at [255] – [259] (per Lindgren J). Consistent with that objective, s 51AC(9), at the relevant time, provided an exception to the operation of s 51AC(1). The exception was a monetary limit so that the reference to "the supply or possible supply of goods or services" does not include a reference to "the supply or possible supply of goods or services at a price in excess of $3,000,000, or such higher amount as is prescribed". The prescribed amount is now $10,000,000: Trade Practices Legislation Amendment Act (No.1) 2007 (Cth) Sch 3, cl 17. "Price" is further defined in s 51AC(11).

142 As I have earlier noted, the proper construction of ss 51AC(1) and (9) lies at the heart of this appeal.

143 Ford contends that properly construed, if a supply used to invoke the operation of s 51AC(1) constitutes a series of transactions, then it is the "prices" of the total of that series of transactions or supplies that must be considered in determining whether the monetary limit in s 51AC(9) has been exceeded. As a result, Ford contends that where the supply relied upon is a series of transactions pursuant to an ongoing contract, then the relevant "price" will be the aggregate of the prices for the series of transactions. As a general proposition, that contention is to be rejected. It finds no support in the express words of the section, the history of the section or the object of the section. Further, the contention, if adopted, leads to results which do not reflect commercial reality and, on one view, may be considered absurd.

144 Section 51AC(1) is concerned with the "supply" of goods or services. The section provides that a corporation, in trade or commerce, in connection with that "supply", must not engage in conduct that is, in all the circumstances, unconscionable. As noted earlier, the elements of the section are directed at a particular supply and the conduct in connection with that supply.

145 Next, the section directs attention to whether that conduct is, in all the circumstances, unconscionable. The relevant conduct and the "circumstances" will, as a matter of fact, change with each supply. It would be anomalous to aggregate the supplies for the purpose of applying the monetary limit but then to disaggregate the supplies for the purposes of ascertaining whether or not the conduct in relation to each supply was, in all the circumstances, unconscionable.

146 The position is no different under what Ford describes as an "ongoing" contract. Even under an "ongoing" contract, such as a dealership agreement or franchise agreement, the conduct and the circumstances of each supply will necessarily be different at least to some extent. Why, in those circumstances, should the prices of those supplies be aggregated? If each supply is separate, then the circumstances will be different.

147 The balance of s 51AC provides further support for the conclusion that a series of transactions are not to be aggregated for the purposes of ss (9). For example, s 51AC(3) lists the matters that the Court may have regard to in determining whether a supplier has engaged in conduct which is unconscionable. The facts and matters listed are, by their nature, whether taken singularly or collectively, not concerned with aggregation. The listed matters are either concerned with the circumstances in which a particular supply took place or require a comparison to be made between the circumstances of the particular supply used to invoke s 51AC(1) and the circumstances of other supplies.

148 Moreover, there is nothing in the legislative history of s 51AC or the extrinsic materials at the time of the introduction of s 51AC to suggest that if a series of supplies are relied upon to invoke s 51AC, the prices of the supplies should be aggregated: see Finding a Balance: towards fair trading in Australia, Report by the House of Representatives Standing Committee on Industry, Science and Technology, May 1997; Trade Practices Amendment (Fair Trading) Act 1998 (Cth) Sch 2 (first adding s 51AC); Bills Digest No. 55 1997-98 (Trade Practices Amendment (Fair Trading) Bill 1997 (October 1997); Explanatory Memorandum, Trade Practices Amendment (Fair Trading) Bill 1997 (Cth); Trade Practices Amendment Act (No. 1) 2001 (Cth) Sch 1, cl 2 (changing the price cap from $1,000,000 to $3,000,000); Brown L, ‘The Impact of Section 51AC of the Trade Practices Act 1974 (Cth) on Commercial Certainty’ (2004) 28(3) Melbourne University Law Review 589.

149 If the construction contended for by Ford (and accepted by the trial judge) was upheld, it would lead to absurd results. The point may be simply demonstrated by taking a series of say 10 transactions under an ongoing agreement where the aggregation of the price of the 10 transactions would exceed $3,000,000. On an application for judgment under s 31A of the Federal Court Act, Ford would contend that the claim had no reasonable prospects of success because the price of the series exceeded $3,000,000. That would, according to Ford, remain the position notwithstanding that the supplies were intermittent and took place over a considerable period of time. That result is absurd. The absurdity of the contention is further demonstrated by the fact that if the matter had proceeded to trial and the court concluded that the conduct in connection with only some of the supplies was unconscionable in contravention of s 51AC, the complainant would have been completely and improperly frustrated in prosecuting a valid claim. Moreover, on the construction contended for by Ford it would not be possible for the complainant to select even some of the supplies and prosecute those because all of the supplies would be required to be aggregated. Why? Because Ford contends (and the trial judge accepted) that all supplies (past, present and future) are to be aggregated in determining whether the $3,000,000 had been exceeded. If that contention were accepted as a general proposition, it would permit a supplier to act unconscionably for part of the supply period and yet not be subject to s 51AC of the Act notwithstanding that the conduct in relation to a number of particular supplies was, in the circumstances of each supply, unconscionable. In other words, if the construction contended for by Ford were to be accepted, it would permit a supplier to contract out of the operation of s 51AC in the manner outlined. Such a result is contrary to human experience and commercial reality and inconsistent with the history and object of the legislation which is the protection of small business.

150 To the extent that Ford relied upon the decision of Barrett J in Overlook Management BV v Foxtel Management Pty Ltd [2002] NSWSC 17 in support of aggregation, I reject the construction of s 51AC(9) adopted by Barrett J (at [95]).

151 The analysis that has been undertaken demonstrates that there can be no general rule about aggregation. But it must also be recognised that it follows that there can be no hard and fast rule that supplies are never to be aggregated. For example, there may be an occasion when two products are supplied under separate contractual arrangements but are, for all other purposes, properly characterised as collateral contracts. For example, machine 1 is purchased under one contract but cannot be purchased without also ordering machine 2 purportedly under a separate contract. In those circumstances, the facts properly construed may support aggregation of prices for the purposes of s 51AC(9). Further, there may be an instalment contract under which there is one supply but payment is made by way of instalments. In those circumstances, the facts properly construed also may support aggregation of the instalments. A third example is where the pleadings or evidence (or both) demonstrate that the same conduct or course of conduct was in connection with unspecified, multiple, or all supplies over a specified period of time. In those circumstances, the facts may support aggregation of the prices. In other words, just as a supplier may not contract out of the operation of s 51AC by aggregating prices where the facts do not support it, so too may the business consumer not "contract in" to the operation of s 51AC by disaggregating where the facts do not support it.

152 The basic factual question is what is the supply or possible supply to which the impugned conduct relates? What is the supply or possible supply "in connection with" the impugned conduct? What then was the supply or were the supplies that were said to invoke the operation of s 51AC in the present case?

153 The form and content of Jefferson Ford’s cross-claim under s 51AC of the Act is important. After referring to the execution on 1 July 2002 of the Dealership Agreements (see [137] above), the cross-claim went on to describe the Dealership Agreements as agreements:

154 Paragraphs 31 to 33 of the cross-claim then describe certain conduct by Ford which Jefferson Ford says was "in trade or commerce, in connection with the supply or possible supply of goods or services to Jefferson Ford", was unconscionable and in contravention of s 51AC(1) of the Act: paras [34] to [40] of the Cross-Claim. As the trial judge noted (at [16]), para 33 of the cross-claim is significant. It provides that:

155 What then follows in the cross-claim is the conduct said by Jefferson Ford to be unconscionable on the part of Ford. That conduct was said to be "concerning or in connection with the supply or possible supply of goods or services by Ford ..., a corporation to a person, Jefferson Ford, within the meaning of s 51AC of the ... Act": para [25(a)].

156 Ford submitted that this claim had no reasonable prospects of success because the "supply or possible supply of goods" which was said to invoke s 51AC "must be all of the vehicles and parts supplied by [Ford] to [Jefferson Ford] under the dealer agreements, which commenced on 1 July 2002" and the value of all of the vehicles supplied during the period from 1 January 2005 to 1 April 2007 was in excess $286,000,000. The value of all of the parts supplied from 1 July 2002 up to and including 31 March 2007 was in excess of $106,000,000. The trial judge accepted Ford’s submission on the basis that Jefferson Ford’s cross-claim was based upon the allegation that Ford had supplied or might possibly supply goods for which Jefferson Ford paid or was obliged to pay an amount of more than $3,000,000: para [25].

157 As the above analysis of the cross-claim demonstrates, the trial judge erred in forming that view. With respect to his Honour, the supplies that invoked s 51AC were not all of the vehicles and parts supplied under the dealership agreements between 2002 and 1 April 2007, or even between 2005 and 2007. As paras [26]-[33] of the cross-claim made clear, the supplies relied upon by the Jefferson Ford had their source in the dealership agreements but the conduct complained of is not alleged to have been in connection with each supply of all of the vehicles and parts supplied under them. On the contrary, as noted above, the cross-claim pleaded by Jefferson Ford relies on conduct taking place from September to December 2006 in connection with supplies of goods and services from September 2006 to 1 July 2007.

158 That being said, the cross-claim as it is currently pleaded and developed in oral submissions before the Full Court does not clearly identify which supply or supplies are said to invoke s 51AC and which conduct is alleged to relate to that supply or those supplies. In part, at least, that is because the parties did not have the benefit of these reasons when pleading and defending the s 51AC claim. Therefore, rather than attempting to undertake a detailed analysis of the various supplies and the conduct pleaded and the connections between each supply and the conduct referred to, the better course is to remit the matter to the trial judge for Jefferson Ford to be given leave to replead the cross-claim under s 51AC of the Act in light of these reasons for decision. That course is appropriate because it was common ground between Ford and Jefferson Ford that, in the absence of aggregation, only one supply of goods exceeded the monetary limit of $3,000,000 specified in s 51AC(9). In relation to a possible supply of services, neither party considered the possible application of s 51AC(9).

159 The parties also dispute whether the judgment granted pursuant to s 31A of the Federal Court Act was final or interlocutory, and, if it was interlocutory, whether leave to appeal should be granted to Jefferson Ford pursuant to s 24(1A) of the Federal Court Act.

160 Whether an order is final or interlocutory depends on whether it "finally dispose[s] of the substantive rights of the parties": Cubillo v Commonwealth [2001] FCA 1213; (2001) 112 FCR 455 at [182] (citing Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246 at 248, per Gibbs CJ; at 253-254, per Mason J; Sanofi v Parke Davis Pty Ltd [1982] HCA 9; (1982) 149 CLR 147 at 153, per curiam) and Schiffer v Pattison [2005] FCA 494; (2005) 143 FCR 328 at [59] (citing Tampion v Anderson (1974) 3 ALR 414). See also Licul v Corney [1976] HCA 6; (1976) 180 CLR 213; Hope v R.C.A. Photophone of Australia Pty Ltd [1937] HCA 90; (1937) 59 CLR 348 at 360 per Dixon J, stating "[i]f [a judgment] concludes the cause of action in favour of one party or another, it may be final. If it does not do so, it is necessarily interlocutory" (emphasis added).

161 There is limited authority in Australia on the finality of a summary judgment order: see eg Schiffer v Pattison [2005] FCA 494; (2005) 143 FCR 328 at [56]- [64]. In Schiffer, the court attempted to distinguish between summary orders granted in favour of an applicant as opposed to those granted in favour of respondents. Other cases have attempted to address the question by treating the summary judgment order as "effectively final" such that "a prima facie case exists for granting leave to appeal": Duncan v Secretary, Department of Family and Community Services [2007] FCA 507 at [18] quoting Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221 at 225; see also Rogers v Asset Loan Co Pty Ltd [2007] FCA 195 at [32]; Paramasivan v Flynn [1998] FCA 1711; (1998) 90 FCR 489 at 492-493. Such fine gradations and doctrinal distinctions are unnecessary - either an order finally disposes of the parties’ substantive rights, in which case an appeal lies as of right, or it does not, in which case appeal is a matter of discretion rather than right. Moreover, these approaches misconceive the nature of summary judgment, at least to the extent that they rest upon the view "that no final disposition of rights occurs because there has been no adjudication of the controversy of fact nor a dispositive application of the law to the facts as found": Rogers [2007] FCA 195 at [32]. As noted above, the whole point of summary judgment is to dispose of claims on the merits, as a matter of law, precisely because there is no relevant controversy of fact such as to make a full evidentiary proceeding necessary.

162 In contrast to Australian authority on summary judgment, a vast body of case law has developed in the United States of America around the question of when an order on a motion for summary judgment is an interlocutory order appealable only by leave or a final order appealable as of right: see generally 10 C. Wright et al., Federal Practice and Procedure: Civil 2d SS 2659; Moore’s Federal Practice (3^rd ed) (1997) Ch 56. The principle that emerges from the US cases is that the finality of a summary judgment order can be determined by reference to two factors: the nature of the order and the remaining claims in the action, if any.

163 First, an order denying summary judgment (regardless of whether the moving party is the applicant or respondent) will generally not be a final order because, by definition, judgment is not granted and thus no substantive rights of the parties are determined: Reviewability of Order Denying Motion for Summary Judgment (1967) 15 ALR3d 899 at s 3[a] (collecting cases and stating that "[t]he vast majority of cases that have ruled upon the question whether an order denying a motion for summary judgment is [immediately] reviewable [without leave] have held against such review"); cf Johnson v Jones [1995] USSC 58; (1995) 515 US 304, 311-13 and Behrens v Pelletier [1996] USSC 11; (1996) 516 US 299, 311 (recognizing a limited exception to this rule under the collateral order doctrine for orders addressing immunity from suit).

164 Second, an order granting only partial summary judgment - that is, judgment on less than all claims (including cross-claims, third-party claims, and counterclaims) - is also not final because certain of the parties’ substantive rights remain in issue. On the other hand, an order granting summary judgment on all claims, whether in favour of the respondent or applicant, is a final order because there are no further substantive rights in issue. This principle is captured in Rule 54(b) of the US Federal Rules of Civil Procedure, which establishes the default rule that:

165 The more complicated issue arises with respect to orders that are non-final and thus interlocutory under the definition above - when and under what circumstances should leave to appeal be granted? This question can only be answered in considering the purposes of summary judgment, which are: (1) to promote efficient allocation of judicial resources; and (2) to protect parties from having to bear the costs of a full trial or evidentiary hearing when no triable issues of fact exist.

166 In deciding whether these purposes are furthered, the considerations involved include: (1) the state of the case (ie, whether the case is or could be made ready for trial without significant further preparation); (2) when the trial would ordinarily be heard; (3) the probable expense of further proceedings, including such matters as the estimated length of time the trial will take, the number, location, and availability of witnesses, and other factors relating to expense and complexity and (4) whether the decision to refuse or grant summary judgment involves novel or important questions of law. Ultimately, the court must ask whether, on balance, immediate interlocutory appeal is likely to further judicial efficiency and minimize expense, or in fact the reverse.

167 How that question is answered will of course depend on the circumstances of the individual case. For example, if the case is nearly ready for trial that will likely only last for a day or two and can be heard in the near future, circumstances favour resolution of all claims prior to appeal because the delay and costs of a piecemeal interlocutory appeal would likely outweigh the cost of further trial proceedings. On the other hand, if a trial would require significant further preparation (including additional motion practice or pleadings and canvassing of expert witnesses), and would likely run for more than a week or two, efficient use of judicial resources might counsel staying the action to allow for interlocutory appeal, particularly if the summary judgment motion involves a close or novel question of law that, if decided the other way, would eliminate most or all of the need for further proceedings.

168 As a general matter (particularly with respect to the first three considerations outlined above), the primary judge is in the best position to determine whether staying the action to allow an immediate, piecemeal appeal of the summary judgment order would be superior to finally resolving all claims so that appeal can be heard on all points at once. This approach (ie, that the primary judge should have a major role to play in whether interlocutory appeal should be allowed) has been codified as a matter of statutory law in the United States. Section 1292(b) of Title 28 of the US Code, headed "Interlocutory decision," provides:

169 In my view, this practice, known as certification, promotes judicial efficiency and reduces the burden on the litigants. Such an approach should be adopted in Australia as a matter of practice. So that where a court makes an interlocutory (as defined earlier) summary judgment order, the court may in its discretion (either of its own accord or on the application of any party), certify the order for immediate interlocutory appeal if there is substantial ground for difference of opinion and an immediate appeal may materially advance the ultimate termination of the litigation. Certification may be by separate order or as part of the summary judgment order, but in either case the court should state its reasons for granting or refusing certification, which reasons should include consideration of the factors outlined above as well as any other relevant considerations; O 52, r 10 of the Federal Court Rules authorises application for leave to appeal from an interlocutory judgment to be made to the judge pronouncing judgment.

170 In cases where the primary judge has certified an interlocutory summary judgment order for immediate appeal, leave to appeal under s 24(1A) of the Federal Court Act should be summarily granted absent extraordinary circumstances. Similarly, where the primary judge has denied certification (or certification was not sought), leave to appeal should be summarily refused absent extraordinary circumstances.

171 Returning to the instant case and considering the two factors set forth above, it is clear that the primary judge’s order granting summary judgment in favour of Ford on Jefferson Ford’s s 51AC cross-claim was interlocutory because it did not resolve all claims and thus did not finally dispose of the substantive rights of the parties.

172 Consideration of the factors outlined above is necessary to determine whether Jefferson Ford should be allowed leave to take an interlocutory appeal. Although I am without the benefit of the primary judge’s views on this matter, it is clear from the matters discussed above that the question involves novel questions of law where there is substantial difference of opinion (eg, whether "price" refers to individual or aggregated transaction amounts), and further proceedings in connection with the cross-claim will be long and complex and will require significant further preparation. In other words, trial of the s 51AC cross-claim will make significant demands on the resources of both the court and the litigants. On balance, therefore, I am of the view that it would be more efficient to decide by way of this interlocutory appeal whether expenditure of those resources will in fact be necessary.

173 I have now had the benefit of reading the draft reasons of Finkelstein J. I agree that previous decisions of the Full Court that an order made under s 31A of the Federal Court Act is always interlocutory (eg Simundic v University of Newcastle [2007] FCAFC 144, Zoia v Commonwealth Ombudsman Department [2007] FCAFC 143; (2007) 240 ALR 624, and Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179) should not be followed for the reasons given by Finkelstein J at [9]-[13]. Secondly, I agree with Finkelstein J that an order refusing summary judgment is interlocutory (see Finkelstein J at [14]) and that an order giving summary judgment in relation to all claims and all parties is final.

174 The area of contention involves those cases in which summary judgment is granted in relation to something less than all claims and all parties ("a partial summary judgment order"). Having regard to (1) High Court authority regarding the finality of orders generally (eg Re Luck [2003] HCA 70; (2003) 203 ALR 1; Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225; Carr v Finance Corporation of Australian Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246; Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423); (2) a review of summary judgment practice in other common law countries and (3) practical considerations involved in modern litigation and case management, in my view a partial summary judgment order under s 31A is interlocutory.

175 By and large, I do not disagree with the historical analysis undertaken by Finkelstein J at [3]-[16]. I say "by and large," because while it is no doubt true that summary judgment in Australia had its genesis in O XIV, the immediate historical predecessor for s 31A is not O XIV but Pt 24 of the English Rules of Civil Procedure (CPR) adopted in 1998: White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511; (2007) 160 FCR 298 at [53]; see also JT Nominees Pty Ltd v Macks (2007) 97 SASR 151; Boston Commercial Services [2006] FCA 1352; (2006) 70 IPR 146. In other words, if an historical analysis is to be undertaken, reference needs to be made not only to English cases applying O XIV, but also to the English cases applying Pt 24 of the CPR.

176 Before turning to consider the English cases that have applied Pt 24 of the CPR, it is necessary to refer to other authority and material. As Rares J notes (at [53]), there is a line of English authority that an order is always interlocutory unless it finally determines a proceeding. That view was codified in the Access to Justice Act 1999 (UK) (Destination of Appeals) Order 2000, Art 1(2)(c), which provides that "‘final decision’ means a decision of a court that would formally determine (subject to possible appeal or detailed assessment of costs) the entire proceedings whichever way the court decided the issues before it." The Destination of Appeals Order has, unsurprisingly, led English courts to view the finality of a summary judgment order under CPR Part 24 in the same way as Rares J suggests it should be viewed in Australia under s 31A. In Tanfern Ltd v Cameron-Macdonald [2000] EWCA Civ 183; [2000] 1 WLR 1311 at [17]- [18], the Court of Appeal considered the Destination Order as follows:

Tanfern was reaffirmed by Court of Appeal in Scribes West Ltd v Relsa Anstalt (No 2) [2005] 1 WLR 1839 at [18]-[32].

177 This additional analysis reveals that references to history are inconclusive. There are, in fact, two related lines of authority in England - the O XIV line and the finality of orders line. Although the approach to summary judgment favoured by Rares J is the current position in England by virtue of statutory codification, its significance is limited because Australia has no statutory counterpart to the Destination Order. At the same time, however, the Pt 24 analysis does suggest that simply looking to the O XIV line of authorities is insufficient; the rules regarding finality of orders are also relevant.

178 Even if the historical analysis produced an unequivocal answer (which it does not), I would remain of the view that a partial summary judgment order is interlocutory and not final. The rules of procedure, the principles of case management and even the nature of civil litigation itself, have all changed dramatically since the 19^th century and most significantly in the last 20 years. The proliferation of multi-party, multi-claim complex litigation, the rise of active judicial pre-trial case management and the major developments in civil procedure that have taken place since the Common Law Procedure Act 1852 (UK) (see reasons of Finkelstein J at [15]) suggest that 19^th and even early 20^th century authority on summary judgment is of little, if any, relevance to the practical issues that this Court confronts today in determining the finality of a partial summary judgment order under a statute adopted by the Federal Parliament in Australia in 2005.

179 This is not to say that 19^th century case law and practice is never relevant; rather, the relevance of historical authority varies according to the field of law. For example, in real property, 19^th century authority may be dispositive: see eg Bowen Investments Pty Ltd v Tabcorp Holdings Ltd [2008] FCAFC 38. But this is not because of the authoritative value of 19^th century case law; it is because the law of real property was already well developed by the 19^th century and has changed little since then. Procedural law, on the other hand, was not yet well developed in the 19^th century and has undergone significant growth and evolution to recognize and accommodate the realities of modern civil litigation. Moreover, while property law was, and still largely is, the product of judge-made common law, procedural law is much more a creature of statutory and judicial rule-making that depends on interpretation of the precise rule or statute at issue rather than judicial exposition of previous rules or statutes. In the context of the current proceedings, I consider the historical analysis to be of little assistance.

180 This then brings me to back to the reasons I gave earlier (at [174]) for concluding that a partial summary judgment order is interlocutory. First, High Court authority regarding the finality of orders. To the extent that the English view of finality, whether historical or modern, departs from the current Australian common law test of finality identified by the High Court, it should not be followed: Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 230 CLR 22 at [103]. In Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [25] (footnotes omitted), the High Court explained the Australian test as follows:

181 The rule that summary judgment orders are sometimes final and sometimes not is, in my view, the logical application of the High Court’s finality test to s 31A of the Federal Court Act. For example, if a single plaintiff brings a single claim (eg breach of s 180 of the Corporations Act 2001 (Cth)) against a single defendant and obtains an order for damages and costs under s 31A, it could not be disputed that the substantive rights of the parties have been finally disposed of. The court would have authoritatively stated that the plaintiff is liable for breach of fiduciary duties and must pay damages. No further orders are required to be made. It would not be open to the losing party to make further application or proceed to have the action tried because the court has given a definitive statement as to the merits of the action.

182 On the other hand, where (as here) there are various other claims and cross-claims pending between the parties, it cannot be said that a partial summary judgment order finally disposes of the substantive rights of the parties in the "principal cause pending between them": Bienstein at [25]. However, if a party brings claims for breach of contract, passing off and misleading and deceptive conduct, all arising out of the same transaction, and the defendant itself asserts breach of contract and counterclaims by way of set-off, if summary judgment is granted in favour of the plaintiff on the breach of contract claim, the rights of the parties inter se with respect to that transaction or principal cause have not been finally settled. The plaintiff may prevail on the other two claims and receive additional relief or the defendant may prevail on the counterclaim and effectively reduce the damages awarded to the plaintiff. In other words, looking at the consequences of the partial summary judgment order as Bienstein directs, it is not final because it does not determine the whole of the principal cause pending between the parties.

183 As Finkelstein J states (at [14]) the corollary of this view is that a party on the losing end of a partial summary judgment order would be entitled to seek reconsideration of the order at any point prior to a final judgment being given in relation to all claims. I do not see that this entitlement to reconsideration presents problems or issues. Any motion for reconsideration would be made to the judge that made the summary judgment order. No doubt that judge would be disinclined to revisit the original order absent some compelling reason. If the application to set aside the partial summary judgment order were to be made to a different judge, no doubt that judge would not depart from it unless they were of the view it was plainly wrong.

184 There is, however, another matter which should not be ignored: the desirability of the trial judge retaining the power to reconsider an order granting partial summary judgment. If a partial summary judgment order is considered final and but it later becomes apparent that the order was improvidently granted, whether because of evidence adduced at or prior to trial on the remaining claims or because of an intervening decision of a superior court on a relevant point of law, the court case will have to stay the proceedings and wait for the matter to be remitted on appeal or to proceed in the absence of that claim and run the risk of a need for a further hearing if and when that claim is in fact remitted. On the other hand, if the order is not final, then the primary judge may simply vacate or revise it in light of the new circumstances.

185 I now turn to the second point - summary judgment practice in other common law countries. The modern English view I have dealt with. A different approach is taken in the United States and in Canada. In the US, a grant of summary judgment as to all claims and parties "is a final adjudication on the merits": Jackson v Procunier [1986] USCA5 563; 789 F 2d 307, 310 (5^th Cir, 1986); see also Hubicki v ACF Industries Inc [1973] USCA3 565; 484 F 2d 519, 524 (3^rd Cir,1973). Similarly, a "grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal": Liggett Group Inc v Sunas 437 SE 2d 674, 677 (1993). See also Geneva Pharmaceuticals Technology Corp. v. Barr Laboratories Inc [2004] USCA2 378; 386 F3d 485, 494-95 (2^nd Cir, 2004) citing Coopers & Lybrand v Livesay [1978] USSC 120; 437 US 463, 467 (1978); In re Pintlar Corporation [1997] USCA9 3000; 124 F 3d 1310, 1312 (9^th Cir, 1997). The law in Canada is to similar effect: Essex Condominium Corp No 5 v Rose-ville Community Centre Association [2007] CarswellOnt 3308 at [17]; Herzig v Markham (Town) [2007] CarswellOnt 8039 at [2]. The English view that an order is interlocutory unless it ends the action regardless of which way it is decided is not adopted in the United States or in Canada: Hamelin v Davis (1996) 18 BCLR (3d) 85, 91, quoted in Noel Developments Ltd v Metro-Can Construction (HS) Ltd (1997) CarswellBC 1839 at [4]. Although the view I favour conforms to the position in the US and in Canada, I do not consider that reference to these other jurisdictions (whether England, the US, or Canada) resolves the issue.

186 The third and I suggest most important group of matters are practical considerations of case management in the Federal Court in 2008. If a partial summary judgment order is final and appellable as of right (which I do not accept), the question which immediately arises is what is to happen to that appeal? Should the Full Court simply refuse to list the appeal or refuse to hear the appeal until the primary judge disposes of the remainder of the case because piecemeal appeals should be avoided: see eg Cobbledick v United States [1940] USSC 33; (1940) 309 US 323, 325; Prado-Steiman ex rel Prado v Bush [2000] USCA11 268; 221 F 3d 1266, 1276 (11^th Cir, 2000); Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423.

187 Of course, if the appeal involves a novel or important question that would essentially determine the parties’ approach to the remaining claims, the Full Court may wish to hear the appeal immediately. The practical issue is that there is no mechanism for adequately separating the appeals that would require immediate hearing from those that would not. At present, in the absence of a hearing or the filing of submissions, the Full Court would not be in a position to decide whether or not to list the appeal. On any view, additional judicial time and resources would need to be allocated to address these issues when they arose. It is, in part, for that reason I consider a partial summary judgment order is interlocutory and that the trial judge should employ a certification procedure as described earlier. If such a procedure were adopted, the trial judge, who is best positioned to know whether the appeal should proceed immediately or not, can facilitate the process. Additional practical benefits flow; the trial judge is able to reconsider the order immediately and without the need for appellate procedure or further proceedings on remittal if later developments demonstrate that the partial summary judgment was improvidently granted. Further, the appellate court is saved from considering what might prove to be a moot appeal if the appealing party ultimately prevails or the action settles.

188 The flip side of the question posed above (see [186]) is what happens to the remainder of the case while the appeal of the partial summary judgment order is pending? If the action is stayed, then a party to whom delay would be an advantage has a great incentive to use the partial summary judgment motion as a tactical device. It is true that the remaining claims could progress to trial regardless of whether the partial summary judgment order is considered interlocutory or final; it is also true that the very idea of partial summary judgment carries with it the risk that additional proceedings will be necessary if the appellate court determines that summary judgment was granted erroneously. However, by giving the trial judge greater control over whether and when an appeal is heard (through the reconsideration and certification processes described earlier), that risk can be minimized, the incentive of parties to abuse the device for tactical purposes can be eliminated and the appellate workload is reduced.

189 A third practical consideration involves execution of partial summary judgment orders. If such an order is final, a successful party could seek execution immediately. No doubt there will be cases where immediate execution is inappropriate and the trial judge will be asked to make an order staying execution of the judgment pending disposition of the remaining claims. But that solution simply begs the question: if the Court recognizes the practical reality that a partial summary judgment order is not something on which to found execution, why should it take the position that the order is final? In my view, it is better to merge practice and doctrine by adopting the commonsense approach that an order granting partial summary judgment is interlocutory. Such an approach avoids the inefficiency of piecemeal appeals (or stays of appeal) and piecemeal execution (or stays of execution), and preserves the trial judge’s control over the proceedings.

190 None of the practical considerations I have raised above are particularly novel. The Prado Court, following on from the passage quoted earlier, concisely summarized the objections as follows (at 1276):

191 For those reasons, I remain of the view that a partial summary judgment order under s 31A is not a final order from which appeal lies as of right.

192 Accordingly, I would grant leave to Jefferson Ford to appeal pursuant to s 24(1A) of the Federal Court Act. I would allow the appeal, set aside orders 3 and 4 of the trial judge of 6 June 2007, orders 1 and 2 of the trial judge of 4 July 2007, remit the matter to the trial judge to further hear and determine the matter including the question of costs of the motion filed on 26 April 2007. I would order Ford to pay Jefferson Ford’s costs of and incidental to the appeal.

I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

Associate:

Dated: 15 April 2008

Counsel for the Appellant: Dr Clifford Pannam QC, Andrew Panna SC

Solicitor for the Appellant: Macpherson & Kelley

Counsel for the Respondent: Paul Anastassiou SC, Peter Wallis

Solicitor for the Respondent: Allens Arthur Robinson

Date of Hearing: 14 November 2007

Date of Judgment: 15 April 2008

So far as is relevant to the issues in dispute, s 51AC of the Act was in the following terms at the time of the relevant conduct:

Federal Court of Australia - Full Court

Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60 (15 April 2008)