Windsor v Sydney Medical Service Co-operative Ltd (No 2)

In the case of Windsor v Sydney Medical Service Co-operative Ltd (No 2), the applicant, Dr Windsor, sought damages for breach of contract and contravention of the Trade Practices Act. The respondent, Sydney Medical Service Co-operative Ltd, filed a notice of motion seeking summary judgment, dismissal of the proceeding, striking out the amended statement of claim, and disallowing the filing of the amended statement of claim. Dr Windsor, who initially represented herself in the proceeding, was assisted by her husband, Mr Neil Windsor. The respondent argued that the proceeding had no reasonable prospect of success due to deficiencies in the cause of action, time-barred claims, and incomplete pleadings. The court was required to decide whether the proceeding had no reasonable prospect of success and whether summary judgment should be granted under s 31A(2) of the Act.

The court considered the principles and tests for determining whether a proceeding has no reasonable prospect of success. The court noted that the onus is on the party seeking summary judgment to demonstrate that the proceeding does not have reasonable prospects of success. The court also considered the Full Court's decision in Jefferson Ford Pty Limited v Ford Motor Company of Australia Limited, which outlined the principles that inform the application of s 31A of the Act. These principles include the requirement to conduct a preliminary trial, draw all available reasonable inferences in favor of the non-moving party, and determine whether a real issue of fact or law exists. The court concluded that the proceeding had a real issue of fact to be decided, and therefore, the proceeding had reasonable prospects of success.

Based on the court's reasoning, the motion was dismissed, and the respondent was ordered to pay the applicant's costs of the motion. The respondent was also required to file and serve a defence on or before 15 July 2009, and the matter was listed for further directions on 22 July 2009 at 9:30 am. The court found that the proceeding had reasonable prospects of success, and therefore, summary judgment was not appropriate.