Summary Judgment Application in Qld

A summary judgment application is an application for a plaintiff or a defendant seeking to end the legal proceedings early.

A summary judgment will be given when a defendant or plaintiff have no real prospect of succeeding in the claim or a part of the claim; and there is no need for a trial.

The Courts have stated that:

1. Summary judgment should only be given in the clearest of cases; and
2. The Court should approach applications by defendants with caution because plaintiffs should not be stopped from pursuing a case that may be successful.

In this article, our Queensland litigation lawyers explain what the Courts have said in relation to summary judgment applications, and the steps which need to be taken to be successful.

Obtaining a summary judgment order is complex and they are very difficult orders to get.  We strongly advise that you seek assistance from a suitably qualified litigation lawyer

What is Summary Judgment?

A summary judgment application is distinguishable from a default judgment application is that a notice of intention to defend must have been filed for a this type of judgment to be given.

• No notice of intention to defend and defence filed – default judgment.
• Notice of intention to defend and defence filed – summary judgment

Summary judgment for the Plaintiff is given pursuant to rule 292 of the Uniform Civil Procedure Rules 1999 (Qld) (“the UCPR”) which says:

(1) A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.

(2) If the court is satisfied that—

(a) the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and

(b) there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.

Summary judgment for the Defendant is given pursuant to rule 293 of the UCPR which says:

(1) A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.

(2) If the court is satisfied—

(a) the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and

(b) there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.

Practically identical, the main points to consider are:

1. The respondent has no real prospects of prosecuting or defending the claim; and
2. There is no need for a trial.

We will explain what the Courts have determined these things to mean.

What does “no real prospects” mean?

In Bernstrom v National Australia Bank Ltd [2002] QCA 231 Jones J said at [37] referring to the UK Court of Appeal case of Swain v Hillman [2001] 1 All ER 91:

In Swain Lord Woolf said concerning the relevant rules:-

 …the court now has a very salutary power, both to be exercised in a claimant’s favour or, where appropriate, in a defendant’s favour. It enables the court to dispose summarily of both claims or defences which have no real prospect of being successful. The words ‘no real prospect of succeeding’ do not need any amplification, they speak for themselves. The word ‘ real’ distinguishes fanciful prospects of success or …they direct the court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.”[14]

 Of the rationale for those new rules, His Lordship said:-

“It is important that a judge in appropriate cases should make use of the powers contained in Pt 24. In doing so he or she gives effect to the overriding objectives contained in Pt 1. It saves expense; it achieves expedition; it avoids the court’s resources being used up on cases where this serves no purpose, and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant’s interests to know as soon as possible that that is the position. Likewise, if a claim is bound to succeed, a claimant should know that as soon as possible.”

 This statement by Lord Woolf is clearly consonant with the philosophy of the UCPR as set out in Rule 5. It is this philosophy which underpins the change in approach reflected in the new rules. These remarks apply with equal force to both rr. 292 and 293 of the UCPR.

In Qld Pork P/L v Lott [2003] QCA 271 Cullinane J referred to Bernstrom (above) and Swain (above) with approval as to the rationale and scope of rule [292 &] 293.

In Queensland University of Technology v Project Constructions (Aust) Pty Ltd [2003] 1 Qd R 259 the Holmes JJ said with Davies JA, Mullins agreeing at [7]:

[g]reat 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.

In Gray v Morris [2004] QCA 5 McMurdo J said at [46]:

With respect to those who may have expressed a different view, it seems to me that rr 292 and 293 should be applied by reference to their clear and unambiguous language, without a need for any paraphrase or comparison with a previous rule. But in the application of the plain words of rules 292 and 293, and in particular the consideration of whether there is a need for a trial, a court must keep in mind why the interests of justice usually require the issues to be investigated at a trial.

In Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, Williams JA said at [11] referring to Lord Woolf in the UK Court of Appeal case of Swain v Hillman [2001] 1 All ER 91:

The words ‘no real prospect of succeeding’ do not need any amplification, they speak for themselves. The word ‘real’ distinguishes fanciful prospects of success or … they direct the court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success

Again, referring to Swain v Hillman, Williams JA went on to say at [11]:

The third member of the court, Judge LJ, whilst recognising that summary judgment was a “serious step”, went on to say at 96: “This is simple language, not susceptible to much elaboration, even forensically. If there is a real prospect of success, the discretion to give summary judgment does not arise merely because the court concludes that success is improbable.”

In Jessup v Lawyers Private Mortgages Ltd [2006] QSC 3, His Honour Chesterman J (as he then was) said at [20]:

If summary judgment is not to work injustice it must be limited to those cases where it can be seen that a plaintiff or defendant, as the case may be, could not succeed at a trial of the action. It is only where a trial can be seen to be pointless that a judgment should be entered summarily.

In summary of the legal principles articulated above, Bowskill SJA said with McMurdo and Mullins JJA agreeing in Halvorson & Anor v Birkenhead Super Pty Limited atf Birkenhead Superannuation Benefits Fund [2021] QCA 211:

The parties agreed that the judge at first instance correctly articulated the legal principles which apply to an application for summary judgment under r 292 of the Uniform Civil Procedure Rules 1999, by reference to this Court’s decision in Deputy Commissioner of Taxation v Salcedo [2005] QCA 227; [2005] 2 Qd R 232. His Honour was cognisant of the need to be satisfied the appellants (defendants) ‘ha[d] no real prospect of successfully defending all or a part of the plaintiff’s claim’ and that ‘there is no need for a trial of the claim’ and in those respects of the ‘high degree of certainty about the ultimate outcome of the proceeding’ which is required before exercising the discretion to give judgment summarily.

So, in summary of the above cases, the term “no real prospects” is defined as:

1. Not needing any amplification, the words speak for themselves.
2. Being applied by reference to their clear and unambiguous language of the rule.
3. Being ‘real’ as distinguished from ‘fanciful’ prospects of success.
4. Having a high degree of certainty about the ultimate outcome of the proceeding.
5. Not improperly depriving the other party of his opportunity for the trial of his case.

The next issue to consider is what is meant by “no need for a trial of the claim”.

There is no need for a Trial of the Claim

The applicant in an application must be able to show that there is no need for a trial of the proceeding.

A summary judgment application will be dismissed if there is a triable issue of law.  In Theseus Exploration NL v Foyster [1972] HCA 41 Barwick CJ, Gibbs and Stephen JJ of the High Court said:

Although I have reached a clear conclusion as to the lack of validity in the respondent’s submission that the appellant was unable to recover the amount claimed, I would not be prepared to hold that the judge erred in the course he took. Equally, however, I would not have thought him in error if he had granted the appellant’s application for summary judgment. The case was one which, in my opinion, could have been disposed of upon legal argument upon the application. But it was for the judge to be satisfied that there was a matter to be tried. Whilst there were no facts to be decided, it was open to the judge, in my opinion, to take the view that the extent and complexity of the matters of law and of argument thereon warranted a hearing.

A summary judgment application may fail if a party can point to circumstances that ought to be investigated but are unable to be investigated without interlocutory and trial processes.

For example, without disclosure/discovery to discover documents which are not in the party’s possession.

In National Australia Bank Limited v Troiani and Anor [2002] QCA 196 Fryberg J (with McPherson JA agreeing) said at [12] following Miles v Bull [1969] 1 QB 258:

Megarry J said (referring to the words in the previous rule “that there ought for some other reason to be a trial”) … These last words seem to me to be very wide. They also seem to me to have special significance where, as here, most or all of the relevant facts are under the control of the plaintiff, and the defendant would have to seek to elicit by discovery, interrogatories and cross examination those which will aid her. If the defendant cannot point to a specific issue which ought to be tried but nevertheless satisfies the court that there are circumstances that ought to be investigated, then I think that those concluding words are invoked. There are cases when the plaintiff ought to be put to strict proof of his claim and exposed to the full investigation possible at a trial; and in such cases it would, in my judgment, be wrong to enter summary judgment for the plaintiff.

Other examples are given by Lord Cairns in Bank Fur Gemeinwirtschaft AG v City of London Garages Ltd [1971] 1 All ER 541 referred to by Tadgell J in Hills v Sklivas [1995] 1 VR 599 at [606]:

1. If a claim is complicated or technical and can only be understood if oral evidence were given; and/or
2. The defendant is not able to contact a witness who might provide material evidence for a defence; and/or
3. The plaintiff’s acted unconscionably or harshly.

The authorities all say that there must be a high degree of certainty.

The Court’s discretion to grant a summary judgment application must be exercised with care.

It must be Exercised with Care

The High Court in Fancourt v Mercantile Credits Ltd (1983) HCA 25 indicated that:

The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear there is no real question to be tried.

In Queensland University of Technology v Project Constructions (Aust) Pty Ltd [2003] 1 Qd R 259 Holmes JJ said with Davies JA, Mullins agreeing at [7]:

[g]reat 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.

In Reardon & Anor v Deputy Commissioner of Taxation [2013] QCA 46 McMeekin J said at [86]:

It is trite law that the power granted by r 292 must be exercised with care.

Trite is defined as – lacking originality or freshness, dull on account of overuse.

In Agar v Hyde [2000] HCA 41, Gleeson CJ said at [57]:

It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant … should not decide the issues raised in those proceedings in a summary way except in the clearest of cases.

In Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Dixon J stated at [13]:

A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court… Once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.

All of the above means that it is difficult to win a summary judgment application, and it must be only the clearest of cases, where there is no need for a trial because the other party has no genuine prospects of being successful.

Why do the Courts give Summary Judgment?

The summary judgment jurisdiction of the Courts exists for the most part because of the philosophy contained in rule 5 of the UCPR, which says:

(1) The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.

(2) Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.

(3) In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.

(4) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.

In Santos Limited v Fluor Australia Pty Ltd & Anor (No 1) [2020] QSC 372, applying (1) and (2) of rule 5 of the UCPR, Bradley J said at [20]:

The court is to apply the rule [in Deputy Commissioner of Taxation v Salcedo] with the objective of avoiding undue delay, expense and technicality and facilitating the just and expeditious resolution of the real issues at a minimum of expense.

Obtaining a summary judgment order is complex and they are very difficult orders to get.  We strongly advise that you seek assistance from a suitably qualified litigation lawyer

Documents Required for a Summary Judgment Application

A summary judgment application is an application within a proceeding.

Therefore, the making of an application for summary judgment requires:

1. An application – Form 009 – Application
2. Draft order – Form 059 – Order
3. Affidavits in support of the application – Form 046 – Affidavit

All of the UCPR forms can be found here – https://www.courts.qld.gov.au/about/forms?root=84820

We will explain these in more detail below.

An application – Form 009 – Application

The application is the document which starts this process.

It should have all of the correct details (name, address, matter number, and more).

It will say words to the effect of:

TAKE NOTICE that the plaintiff is applying to the Court for the following orders:

1. The plaintiff be given judgment pursuant to rule 292 of the Uniform Civil Procedure Rules 1999 on part the Claim so that the defendant pays the plaintiff the sum of $XXXX plus interest in the sum of $XXXXX.

2. The defendant pays the costs of the plaintiff of the application on an indemnity basis.

3. Any other orders that this honourable Court deems fit.

It may vary depending on what you want, the facts of your case, and whether you are the plaintiff or the defendant.

Draft order – Form 059 – Order

A draft order is basically a mirror copy of your application.  It will say something like:

THE ORDER OF THE COURT IS THAT:

 1. The plaintiff be given judgment pursuant to rule 292 of the Uniform Civil Procedure Rules 1999 on part the Claim so that the defendant pays the plaintiff the sum of $XXXX plus interest in the sum of $XXXXX.

 2. The defendant pays the costs of the plaintiff of the application on an indemnity basis.

Also, directions or other orders the applicant would like the Court to make.

Affidavits in support of the application – Form 046 – Affidavit

The affidavits in support of the application for summary judgment are the evidence that the applicant is seeking to rely on.

All evidence must be given by affidavit unless the court gives leave.

We strongly advise self-represented litigants to seek legal advice in relation to the evidence required to be successful in a summary judgment application.

What Evidence do you Need?

Rule 295 of the UCPR relates to the evidence in a summary judgment applications and says:

(1) In a proceeding under this part, evidence must be given by affidavit unless the court gives leave.

(2) An affidavit may contain statements of information and belief if the person making the affidavit states the sources of the information and the reasons for the belief.

(3) A party to an application under this part who intends to rely on a document must—

(a) exhibit the document to an affidavit; or

(b) identify in an affidavit the provisions relied on to the extent the party is able to identify them.

(4) A person who makes an affidavit to be read in an application under this part may not be cross-examined without the leave of the court.

As mentioned above, the summary judgment provisions in the UCPR seek to avoid undue delay, expense and technicality while facilitating the just and expeditious resolution of the real issues at a minimum of expense pursuant to rule 5 of the UCPR.

Because of the objectives in rule 5, evidence in these applications is given by way of affidavit unless the court has given leave under rule 295(1).

As per rule 295(2), the deponent may make statements of information and belief if the deponent:

1. states the sources of the information; and
2. the reasons for the belief.

In Gore v Deputy Commissioner of Taxation [2015] QCA 173 Gotterson JA said at [36] and [37] with Morrison and Philippides JJA agreeing:

Rule 295(2) of the UCPR permits an affidavit on a summary judgment application to contain statements of information and belief if the deponent states the sources of the information and the reasons for the belief. In his affidavit of 16 January 2015 Mr Clarke stated that in conference Ms Gore has told him she had not received any of the DPNs.

 Her Honour rightly rejected that as evidence that Ms Gore had not received the DPNs. Mr Clarke merely deposed to the fact that Ms Gore had instructed him that the DPNs were not received. However, he did not depose to any belief on his part regarding the matter or to any reasons for such a belief. The affidavit failed to comply with rule 295(2) in this respect.

In Hanson Construction Materials P/L v Davey & Anor [2010] QCA 246 Chesterman JA dismissed an appeal with Muir and JA and Applegarth J agreeing, and said:

UCPR 295(2) permits an affidavit to contain statements of information and belief, but only if, “the person making the affidavit states the sources of the information and the reasons for the belief” … Ms Skerratt did not explain her sources of information nor the reasons for her belief that the invoices had not been paid.

The rules of evidence can be very complicated, so it is strongly advised to seek professional legal assistance when making a summary judgment application.

The Burden of Proof

In summary judgment applications by a plaintiff the onus is on the plaintiff to prove:

1. The respondent has no real prospects of prosecuting or defending the claim; and
2. There is no need for a trial.

If the plaintiff can show this, then the evidentiary onus may shift to the defendant.

Only when the plaintiff can make out a prima facie right to summary judgment, specifically addressing any grounds of the defence raised, does onus move to the defendant.

In Qld Pork P/L v Lott [2003] QCA 271 Jones J said in obiter at [41]:

In this type of proceeding, as with an application under the former rules, the onus is on the applicant to prove the claim and to persuade the Court that there is no real prospect of the opposite party succeeding. In some circumstances a respondent to the application may be able to convince the Court that the onus has not been discharged without filing any evidence at all. But once a prima facie case has been made out entitling the applicant to judgment then an evidentiary onus shifts to the respondent.

In Currie v Meredith [2020] QDC 19, Barlow QC DCJ following Qld Pork above said at [5]:

The onus is on the plaintiff to satisfy the court of those two requirements, and only when a prima facie entitlement to summary judgment has been established does the evidentiary burden shift to the defendant.

So, in the plaintiff’s application for summary judgment, the burden of proof is on the plaintiff to prove that the defendant’s case has no real prospects, and that there is no need for a trial.

Once you have made the application, and it has been filed and sealed by the Court, the next step is to serve the application and supporting affidavits.

Service of the Application for Summary Judgment

Rule 296 of the UCPR says:

(1) A party applying for judgment under this part must file and serve the respondent to the application with the following documents at least 8 business days before the date for hearing shown on the application—

(a) the application;

(b) a copy of each affidavit on which the applicant intends to rely.

(2) At least 4 business days before the date for hearing, the respondent must file and serve on the applicant a copy of any affidavit on which the respondent intends to rely.

(3) At least 2 business days before the date for hearing, the applicant must file and serve on the respondent a copy of any affidavit in reply to the respondent’s affidavit on which the applicant intends to rely.

In summary of the above:

1. Application and affidavits – served 8 business days before the hearing date.
2. Affidavits in response to application – served 4 business days before the hearing date.
3. Affidavits in response to application – served 2 business days before the hearing date.

Business days are defined in Schedule 1 of the Acts Interpretation Act 1954 (Qld) to mean:

business day means a day that is not

(a) a Saturday or Sunday; or

(b) a public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done.

Section 36 of the of the Acts Interpretation Act 1954 (Qld) also defines “excluded days” to mean:

excluded day—

(a)for filing or registering a document—means a day on which the office is closed where the filing or registration must or may be done; or

(b)otherwise—means a day that is not a business day in the place in which the thing must or may be done.

This means that the service day, and the hearing day, must be excluded from the calculation of business days.

You should endeavour to do everything in accordance with the UCPR, however if not then it may not be the end of the world.  Rule 438 of the UCPR states:

The court may, at any time, give leave to a party to use an affidavit that has not been served or that was served later than the time specified in these rules.

Once served, it is just a countdown to the hearing.

Other Considerations

There are some other things to consider, including:

1. Seeking directions from the Court.
2. Claiming interest in the summary judgment application.
3. Claiming additional costs in the summary judgment application.
4. Costs of the successful summary judgment application.

We will explain these in more detail below.

Seeking directions from the Court

Rule 298 of the UCPR allows the court to give directions or impose conditions about the future conduct of the proceeding.  It says:

If—

(a) the court dismisses an application under this part for judgment; or

(b) a judgment under this part does not dispose of all claims in a proceeding;

the court may give directions or impose conditions about the future conduct of the proceeding.

In Duhs v Pettett [2009] QCA 347, Fraser JJA said at [11], with Keane & Holmes agreeing:

Rule 298 of the Uniform Civil Procedure Rules 1999 (Qld) provides that where an application for summary judgment is dismissed the court may give directions or impose conditions about the future conduct of the proceeding. In this appeal the appellant did not challenge the primary judge’s conclusion that this rule authorised an order that the appellant pay money into court as a condition of continuing a proceeding. The appellant also accepted that the discretion to make such an order may be exercised when, as the primary judge concluded, the defence to a plaintiff’s claim is “shadowy”.

The term “shadowy” refers to the matter of security as raised in DMS Shipping & Trading Co Ltd v. Lionheart Asia Ltd [1995] QCA 448, where Thomas J said:

Order 18 rule 6 of the Rules of Supreme Court gives the Judge an unfettered discretion, when leave to defend is granted, to impose such terms as to giving security as the Judge may think fit. Commonly the discretion is exercised when the Judge perceives the defence to be “shadowy”, “insubstantial”, “tricky”, “suspicious” or “almost one in which summary judgment should be ordered”.

As a law nerd, I love the word “shadowy”.  It says everything it needs to say without saying the things we ought not say.

There are other directions that the Court can make.

Claiming interest in the summary judgment application

The plaintiff is also entitled to claim interest on the claim if it relates to money pursuant to section 58 of the Civil Proceedings Act 2011 (QLD) which says:

The court may order that there be included in the amount for which judgment is given interest at the rate the court considers appropriate for all or part of the amount and for all or part of the period between the date when the cause of action arose and the date of judgment.

The Supreme Court Practice Direction Number 7 of 2013 says that interest is calculated at 4% above the cash rate at the Reserve Bank of Australia.

This may mean that a $100,000.00 claim, a little less than six (6) years from the date of this article, the Court Interest Calculator says that the interest amount is $29,693.11 bringing the total owing to $129,693.11.

This is a considerable amount to be added to the debt amount and claimed as part of the summary judgment application.

Costs of the Summary Judgment Application

The costs of a summary judgment application are given at the court’s discretion.

If you are successful in your application for summary judgment, the convention says that costs follow the event.  Rule 681 of the UCPR states:

(1) Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.

(2) Subrule (1) applies unless these rules provide otherwise.

However, in summary judgment applications, the court can deviate from the usual convention because of rule 299 of the UCPR which states:

(1) If it appears to the court that a party who applied under this part for judgment was or ought reasonably to have been aware that an opposite party relied on a point that would entitle that party to have the application dismissed, the court may dismiss the application and order costs to be paid within a time specified by the court.

(2) Subrule (1) does not limit the court’s powers in relation to costs.

This was discussed in State of Qld v Nixon & Ors [2002] QSC 296 where Muir J said at [6] and [7]:

The position in relation to summary judgment applications though, as r 299(1) recognises, is somewhat different. Such an application may fail even though that applicant may have good prospects of ultimately succeeding in the action. The party seeking to resist the application may rely on evidence which may not be accepted on the final hearing and the applicant may be obliged to proceed on the basis that the respondent’s version of the facts be accepted for the purposes of the application … Because of considerations such as these, costs of summary judgment applications are something reserved or made the parties’ costs in the cause.

Indemnity Costs in a Summary Judgment Application

Usually, standard costs will be ordered unless the winning party can show why an order for indemnity costs should be awarded.

In Hazeldene’s Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298 Warren, C.J., Maxwell, P., Harper, A.J.A. said:

[t]he unreasonable refusal of an offer of compromise is, by itself, a proper ground for the award of indemnity costs or – in the present case – the award of solicitor-client costs. It follows that it is not necessary for the applicant for such an order to establish matters which might be relevant to other, well-recognised, grounds for indemnity costs.

Hazeldene’s case sets out a “test of unreasonableness” suggesting that the following matters should be regarded:

1. The stage of the proceeding the offer is made.
2. The time allowed for consideration.
3. The extent of the compromise offered.
4. The offeree’s prospects of success, assessed on the date of the offer.
5. The clarity of the terms of the offer; and
6. Whether the offer foreshadowed an application for indemnity costs if it was rejected.

We have more here on Calderbank offers.

Have you been served with a Summary Judgment Application?

If you are defending a summary judgment application, then you should:

1. Highlight and identify factual disputes between the plaintiff and the defendant; and
2. Substantiate your case by filing affidavit material within time; and
3. Support your case by using the best evidence that you can.

Summary Judgement Applications

If you are a plaintiff and the defendant has filed a notice of intention to defend and a defence which has no prospects of success and means that there is no need for a trial, then you can apply for summary judgment.

However, you should be mindful that summary judgment is only given in the clearest of cases, as the Court will approach these applications with caution.

Or you are a defendant and you have been served with a summary judgment application, then you have to substantiate your case as best you can.

Obtaining a summary judgment order is complex and they are very difficult orders to get.  We strongly advise that you seek assistance from a suitably qualified litigation lawyer

Summary Judgment Application FAQ

Because they are quite difficult to get, and they are a reasonably rare occurrence, we do not get asked a lot of questions about summary judgment applications.  Here are a few commonly asked questions.

Is a summary judgment a good thing?

Yes.  If a plaintiff or a defendant can obtain a summary judgment for the entire proceeding, then this means that the legal proceeding will be over, with no more stress and legal fees.

What happens at a summary judgment?

At the hearing of a summary judgment application, both plaintiff and defendant put their cases forward, and a judge determines whether to summarily deal with the matter or not.

If the judge decides to grant summary judgment for the entire proceeding, then the matter will essentially be over.

What is summary judgment and its purpose?

A summary judgment application is an application for a plaintiff or a defendant seeking to end the legal proceedings early.

A summary judgment will be given when the defendant or plaintiff has no real prospect of succeeding in the claim or a part of the claim; and there is no need for a trial.

How do you win a summary judgement?

If you are a plaintiff and the defendant has filed a notice of intention to defend and you can prove that the defence has no prospects of success and means that there is no need for a trial, then may be given summary judgment.

If you are a defendant, you have been served with a summary judgment application, then you have to substantiate your case as best you can to defeat an application for summary judgment.

What happens after summary judgement granted?

After summary Judgement granted, the (money) judgment is an enforceable money order and can be enforced like any other enforceable money order, by warrant or insolvency.

How do you avoid summary judgement?

Have a real case that has been properly pleaded, and is not “shadowy”, “insubstantial”, “tricky”, or “suspicious”.  Then, if someone makes a summary judgment application against you, file affidavit material to substantiate your case as best you can.

Why should summary judgment be granted?

This type of judgment will be granted when the applicant can prove that the defence/statement of claim has no prospects of success and that there is no need for a trial.  However, summary judgment is only be given in the clearest of cases.

Obtaining a summary judgment order is complex and they are very difficult orders to get.  We strongly advise that you seek assistance from a suitably qualified litigation lawyer