Continuing Professional
Development
Summary Judgment
Tass Liveris
16 January 2014
Introduction
• Summary judgment is a mechanism whereby parties
can obtain judgment without trial, often at relatively
early stages of proceedings.
• The purpose of the procedure is to prevent parties
from maintaining unmeritorious claims for some
ulterior reason.
• In theory a proper exercise of the discretion will
obviate the costs and delays involved in litigation,
which in turn will enhance efficiency of cases in the
court system and the delivery of justice.
Introduction
• The various rules of courts differ, however in
practice courts have continued to implement
the very high common law threshold for
summary judgment, centred around the
discretion being exercised with exceptional
caution, cases being clearly untenable and
manifestly groundless.
Rules of Court – Northern Territory
• Northern Territory:
The plaintiff may at any time apply to the
court for judgment against the defendant on
the ground that the defendant has no defence
(Rule 22.02, Supreme Court Rules; Rule 27.01
Local Court Rules).
Rules of Court – Northern Territory
The court may give judgment for the
defendant against the plaintiff if the
defendant has a good defence on the merits.
(Rule 23.03, Supreme Court Rules; Rule 27.06,
Local Court Rules).
Rules of Court – Northern Territory
• Work Health Court:
A party may apply for summary judgment on
grounds including the other party has “no real
defence”, the defence discloses a “good
defence on the merits”, the other party has
“no real cause of action” and the proceeding
is “frivolous, vexatious or an abuse of process”
(Rule 21.02).
Policy
• A key objective of the legal system is to
facilitate the just, efficient and cost effective
resolution of disputes.
• The great challenge for the legal system is to
temper the interests of efficiency with the
interests of justice so that a litigant’s right to
access the court is not unfairly denied.
Policy
• Summary judgment is intended to save the
parties and the court the time and expense
associated with the continuation of
unmeritorious cases.
• The exercise of summary judgment for either
party has serious consequences and as such is
a power which is not exercised lightly.
Northern Territory
• The power to order summary judgment is one that
should be exercised with great care and should never
be exercised unless it is clear that there is no real
question to be tried (Fancourt –v- Mercantile Credits
Ltd (1983) 154 CLR 87 at 99).
• Summary judgment should never be entered unless
there can be no reasonable doubt that a plaintiff is
entitled to judgment (Sportsbet Pty Ltd –v- Moraitis
[2010] NTSC 24 at [11]).
Northern Territory
• In an application the plaintiff must prove there is no
question to be tried. If there are relevant facts in
dispute or a difficult point of law to be decided the
application cannot succeed.
• If the defendant has a fairly arguable defence along
these lines then the defendant is entitled to a trial
according to the normal rights of every defendant to
defend the action (Heller Financial Services Ltd –vSolczanuk [1989] NTSC 36 at [9]).
Northern Territory
• The application must be supported by an
affidavit verifying the facts that the claim is
based on and stating the deponent’s belief
there is no defence to the claim except as to
the amount claimed (SCR 22.03; LCR 27.02).
• The court is permitted to admit evidence
based on information and belief (SCR22.03(3);
LCR 27.02(3)).
Northern Territory
• If the plaintiff establishes it is entitled to judgment, the
court will enter judgment unless the defendant shows
cause. The court will normally require an affidavit by or
on behalf of the defendant before a defendant will be
granted leave to defend (Sportsbet (supra) at [12]).
• The defendant’s evidence is required to specifically
meet the plaintiff’s claim and the facts alleged in the
plaintiff’s affidavits.
Northern Territory
• The defendant’s evidence is also required to
state clearly and concisely what the defence is
and the facts it relies on to establish its
defence (Heller (supra) at [22]).
• The burden on the defendant is to satisfy the
court that a question ought to be tried or that
for some other reason there ought to be a
trial of the claim (SCR 22.06(1)(b)).
Northern Territory
• For a defendant to establish there is an issue
to be tried it must show a plausible, or
arguably good defence.
• The complexity of the legal argument may not
impede the court granting summary judgment
if the plaintiff is able to clearly show there is
no defence (Civil and Civic Pty Ltd –v- Pioneer
Concrete (NT) Pty Ltd (1991) 1 NTLR 43).
Northern Territory
• In Civil and Civic Pty Ltd, without overriding
the basic principle that where there is a real
question to be tried leave to defend should be
given, Asche CJ observed:
“I do not think the mere complexity or
apparent complexity of the argument should
automatically shut out the plaintiff for
immediate relief ...
Northern Territory
Extensive arguments on points of law may well serve to
encourage ingenious counsel to adopt what one would
have to call a “cuttlefish” defence. That sagacious
mollusc endeavours to confuse and defeat its enemies
by pouring forth clouds of inky blackness when
attacked. So, resort to a welter of authorities and
referral to esoteric points of law might be employed to
persuade an overworked judge that the answer is too
hard to find on summary proceedings; and the defence
thereby gain a much desired breathing space; at the
expense of the plaintiff.”.
Northern Territory
• The court may, by order, allow the plaintiff to
rely on an affidavit in reply (SCR 22.05).
• The court may order the deponent of an
affidavit to attend and be examined or crossexamined or to produce any papers, books or
documents (SCR 22.07).
Summary Judgment for Defendant
• The principles relevant to applications by
defendants have been expressed slightly
differently by courts, but result in effective
consideration of whether there is a real or
serious question to be tried.
Lowering the Threshold
• Federal Court:
A party may apply for an order that judgment be given
against another party because the applicant has “no
reasonable prospect” of successfully prosecuting or
defending the proceeding, the proceeding is frivolous
or vexatious, no reasonable cause of action is
disclosed, the proceeding is an abuse of the process,
the respondent has no reasonable prospect of
successfully defending the proceeding (Rule 26.01,
Federal Court Rules; s.31A, Federal Court of Australia
Act).
Lowering the Threshold
• Importantly, s.31A(3) of the Federal Court Act
provides that a proceeding need not be
“hopeless” or “bound to fail” for it to have no
reasonable prospect of success.
• Section 31A was inserted into the Federal
Court Act in 2005 by the Migration Litigation
Reform Act 2005 and was intended to lower
the threshold for summary judgment.
Lowering the Threshold
• The policy behind the federal reform was to
relax the high common law tests and to
strengthen, “ ... the power of the courts to
deal with unmeritorious matters by
broadening the grounds on which federal
courts can summarily dispose of unsustainable
cases” (Second Reading Speech, Migration
Litigation Reform Act 2005).
Lowering the Threshold
• In 2010 Victoria moved away from the “no defence”
test to a “no real prospect of success” test: see Part
4.4, Civil Procedure Act 2010 (Vic.).
• The reforms were intended to, “liberalise the test for
summary disposal of unmeritorious claims and
defences ... [to] help courts to remove at an early stage
cases where a party has no real prospects of success.”
(Explanatory Memorandum, Civil Procedure Bill 2010).
Lowering the Threshold
• By the Uniform Civil Procedure Rules 1999,
Queensland introduced a test of a “no real
prospect of succeeding”.
• In Queensland University of Technology –vProject Constructions (Aust) Pty Ltd (In Liq)
[2003] 1 Qd R 259 the Court of Appeal held,
Lowering the Threshold
“That level of satisfaction may not require the meeting
of as high a test as that posited by Barwick CJ in
General Steel: “that the case for the plaintiff is so
clearly untenable that it cannot possibly succeed”. The
more appropriate inquiry is in terms of the Rule itself:
that is whether there exists a real, as opposed to a
fanciful, prospect of success. However, it remains,
without doubt, the case that “Great care must be
exercised to ensure that under the guise of achieving
expeditious finality a plaintiff is not improperly
deprived of his opportunity for the trial of his case.”
Practice
• It can be seen that in practice courts have
remained very reluctant to relax the
application of the summary judgment
principles.
• In Boston Commercial Services Pty Ltd –v- GE
Capital Finance Australasia Pty Ltd [2006] FCA
1352, Rares J said of s.31A:
Practice
• s.31A requires the moving party to satisfy the court
that there is no reasonable prospect of the other party
successfully pursuing their claim or defence.
Experience shows that there are cases which appear to
be almost bound to fail yet they succeed.
• Where there is a real issue of fact to be decided and
possibly where there is a real issue of law of a similar
kind, it is obviously appropriate that the matter goes to
trial.
Practice
• The court must be very cautious not to do a party an
injustice by summarily dismissing the proceedings
where contested evidence might reasonably be
believed one way or the other so as to enable one side
or the other to succeed.
• Unless only one conclusion can be said to be
reasonable, the moving party will not have discharged
its onus to enliven the discretion to authorise a
summary termination of the proceedings which s 31A
envisages.
Practice
• In Lysagh Building Solutions Pty Ltd –v- Blanalko Pty Ltd
[2013] VSCA 158 the Court of Appeal held the test is to
some degree more liberal than the “hopeless” or
“bound to fail” common law position, but at the same
time said it must be borne in mind that the power
should be exercised with caution and not unless it is
clear that there is no real question to be tried (cf
Fancourt –v- Mercantile Credits Ltd (1983) 154 CLR 87
at 99).
Practice
• So although the court has recognised
parliament’s intention to liberalise the test it
appears unlikely that these attempts will make
any material difference to the determination
of applications in practice.
Practice
• The cases referred to show that the court will
inevitably prioritise interests of justice and the
basic rights of litigants to access the court
over interests of efficiency.
• Instead, courts seem to have much preferred
to work towards increasing efficiency (and
justice) through regulating their own
processes.
Practice
• Today, litigants are obliged to comply with extensive
pre-action requirements (see NT Supreme Court
Practice Direction 6 of 2009 – Trial Civil Procedure
Reforms; Civil Dispute Resolution Act 2011 (Cth.)).
• These requirements are intended to ensure that parties
litigate only after genuine steps have been taken to
resolve disputes and that cases brought before the
court are efficiently managed.
Practice
• If pre-action requirements are complied with,
however the test is expressed it is difficult to
see on what basis a party might apply for
summary judgment, let alone successfully.
Conclusions
• However parliament expresses the threshold test
for summary judgment, the likely concerns about
relaxing the standards to be applied include:
– Potentially meritorious claims or defences being
dismissed without being properly tested.
– Unrepresented litigants are those most likely to fall
within the parameters of the discretion.
Conclusions
– The time and costs involved with summary
judgment hearings and the right of appeal may in
effect be counter-productive to the aim of
enhancing efficiency and justice.
• In modern practice pre-action requirements in
the Federal and Supreme Courts ought to
ensure the summary judgment provisions are
rarely if ever called upon.
Conclusions
• The situation is not quite the same in the
Local, Small Claims and Work Health Courts.
• However parliament attempts to influence the
workload of the court by rewriting the rules it
is difficult to see the court using summary
judgment as a routine means of achieving
efficiency in the system.