How to Oppose a Summary Judgment Application in Queensland
A plaintiff’s summary judgment application can be opposed successfully in Queensland where the material demonstrates a real prospect of successfully defending all or part of the claim, or otherwise shows that a trial is needed. You do not have to prove conclusively that you will ultimately win. The immediate issue is whether the plaintiff has established both requirements in r 292 of the Uniform Civil Procedure Rules 1999 (Qld). The most significant risk is failing to respond properly and on time. If summary judgment is granted, the plaintiff may obtain an enforceable judgment and begin recovery action, subject to any applicable stay or procedural requirement. This may include enforcement warrants, bankruptcy proceedings or, in the case of companies, statutory demands or winding-up processes.
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What Is a Summary Judgment Application?
Many respondents lose summary judgment applications not because they lack a defence, but because they misunderstand the process or fail to provide the evidence the Court requires. If you are seeking judgment rather than defending an application, our detailed guide on obtaining Summary Judgment in Queensland explains when the Court may enter judgment without requiring a full trial.
This infographic gives readers a simple, step-by-step overview of what happens after a summary judgment application is served and the practical actions that can improve the prospects of successfully opposing it.
A summary judgment application is a procedure that allows the Court to determine a claim without a full trial where one party has no real prospect of succeeding or defending the proceeding. The procedure permits the Court to avoid the time and expense of a trial where a party has no real prospect of success and the Court is satisfied that no trial is needed. In Queensland, this power is contained in rr 292 and 293 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”), which permit judgment for either a plaintiff or a defendant in appropriate cases.
A summary judgment application is different from a default judgment. A default judgment is usually obtained because a party has failed to take a required procedural step, such as filing a Notice of Intention to Defend or a Defence. If the defendant has failed to file a defence at all, a different procedure may apply. Our guide on Default Judgment Where No Defence Has Been Filed explains when creditors can obtain judgment without a defended hearing and how those applications differ from summary judgment.
By contrast, summary judgment involves the Court assessing whether the opposing party has any real prospect of success, even where a Defence has been filed. Summary judgment and default judgment can both result in an enforceable judgment without a full trial, but they arise in different circumstances. This comparison helps respondents understand why filing a Defence may prevent default judgment but does not necessarily protect them from a separate summary judgment application.
| Issue | Summary Judgment | Default Judgment |
| Why is judgment sought? | The applicant argues the other party has no real prospect of successfully pursuing or defending the claim. | The defendant has failed to take a required procedural step, commonly by not filing a Defence within time. |
| Can a Defence already be filed? | Yes. A summary judgment application may be made even where pleadings have been filed. | Usually no Defence has been filed within the required period. |
| Does the Court consider evidence? | Yes. The Court considers affidavits, documents and the issues identified by the parties. | The Court primarily considers whether procedural and evidentiary requirements for default judgment have been satisfied. |
| Is there usually a hearing? | Yes. The parties ordinarily make submissions about whether a genuine issue requires trial. | Not always. Some applications may be determined administratively, depending on the claim and Court requirements. |
| How can the respondent oppose it? | Evidence or legal argument showing a real prospect of successfully defending all or part of the claim, or that there remains a need for a trial. | A defendant seeking to set aside judgment must explain the default and usually demonstrate an arguable defence. |
| Does filing a Defence prevent judgment? | No. Filing a Defence alone does not defeat summary judgment. | Filing a Defence within time will ordinarily prevent default judgment being entered for failure to defend. |
| Possible outcome | Judgment may be entered for all or part of the claim, or the application may be refused and the case proceed. | Judgment may be entered because of the procedural default, subject to any later application to set it aside. |
The High Court has made clear that summary judgment should be exercised cautiously because parties should not ordinarily be deprived of the opportunity to have genuine disputes determined at trial. In Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, the Court emphasised that summary dismissal was inappropriate where the proceeding raised factual issues that may justify ordinary pre-trial processes, reinforcing that the jurisdiction is reserved for cases that truly do not require a trial.
The High Court observed at [4]:
The case which Mr Spencer seeks to raise potentially involves important questions of constitutional law. It also involves questions of fact about the existence of an arrangement between the Commonwealth and the State of New South Wales which may justify the invocation of pre-trial processes such as discovery and interrogatories.
When Will the Court Refuse Summary Judgment?
A party does not need to prove they will ultimately win in order to oppose a summary judgment application. The stronger focus is usually on showing that the case involves disputed facts, arguable legal defences, credibility issues, incomplete evidence or other matters that should not be decided summarily.
The Court may refuse summary judgment where the respondent demonstrates a real prospect of successfully defending all or part of the claim or where the Court is not satisfied that there is no need for a trial. At this stage, the judge is not conducting the final trial or finally resolving genuinely contested evidence. In practice, the focus is usually on identifying the limited factual or legal disputes that require disclosure, oral evidence, cross-examination or further investigation, rather than attempting to argue every issue that may ultimately arise at trial.
In practice, summary judgment is often refused where the outcome depends on matters that cannot fairly be determined on the material available at the summary judgment hearing. Examples may include genuinely disputed facts, conflicting witness accounts, material issues of credibility, incomplete evidence, contractual provisions whose proper construction depends on disputed surrounding facts, allegations requiring cross-examination, or competing expert opinions. The existence of those matters does not automatically prevent summary judgment, but they may demonstrate either a real prospect of successfully defending the claim or that there remains a need for a trial.
One of the practical mistakes I frequently see is respondents assuming they must prove their entire defence at the summary judgment hearing. That is not the legal test. The respondent should identify and support the factual or legal matters demonstrating a real prospect of successfully defending all or part of the claim, or showing that there remains a need for a trial. A defence does not have to be shown to be more likely than not to succeed merely to defeat summary judgment.
The Meaning of “No Real Prospect”
The expression “no real prospect” distinguishes a realistic prospect of success from one that is merely fanciful. The test is not whether the respondent is likely to lose. If there is a real prospect of successfully defending the claim, the discretion to give summary judgment does not arise merely because the Court considers success improbable. The Court must also be satisfied that there is no need for a trial.
In Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, the High Court considered the separate federal test of whether a proceeding had “no reasonable prospect” of success under s 31A of the Federal Court of Australia Act 1976 (Cth). Although the statutory language differs from rr 292 and 293 of the Queensland UCPR, the Court’s observations remain relevant to the dangers of resolving disputed or complex factual issues through a summary process.
The High Court stated at [25–26]:
Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue…
…Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant. The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.
Queensland courts have adopted a cautious approach while applying the language and purpose of the UCPR. In Deputy Commissioner of Taxation v Salcedo [2005] QCA 227; [2005] 2 Qd R 232 at [3], McMurdo P stated:
UCPR r 292, and r 293 should be applied using their clear and unambiguous language and keeping in mind the purpose of the UCPR to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
Her Honour continued:
Nothing in the UCPR, however, detracts from the well established general principle that issues raised in proceedings will be determined summarily only in the clearest of cases.
McMurdo P then quoted the High Court’s statement in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] that a party should not ordinarily be denied the opportunity to present its case in the ordinary way after taking advantage of the usual interlocutory processes.
What Evidence Can Be Used to Oppose a Summary Judgment Application
The strength of an opposition to summary judgment usually depends less on the legal arguments advanced than on the quality of the evidence supporting them. Because the Court determines the application primarily on affidavit material, respondents should file sworn evidence identifying the factual disputes requiring a trial and exhibiting the documents supporting those disputes. Affidavits must comply with the requirements of the Uniform Civil Procedure Rules 1999 (Qld). Under r 295, evidence on a summary judgment application must ordinarily be given by affidavit unless the Court gives leave. An affidavit may include statements based on information and belief, but the deponent must state the sources of that information and the reasons for the belief. A party intending to rely on a document must exhibit it or identify the provisions relied upon to the extent possible.
In practice, persuasive evidence often includes contracts, correspondence, emails, invoices, payment records, meeting notes, expert reports, photographs, financial records and other contemporaneous documents created at the time of the events in dispute. These materials frequently demonstrate that the issues are more complex than the plaintiff suggests and cannot fairly be resolved without the ordinary processes of disclosure, cross-examination and trial.
Simply asserting that the plaintiff is wrong is rarely enough. One of the most common mistakes I see is respondents filing affidavits that repeat the allegations in their Defence without identifying the evidence supporting those allegations. Bare denials or unsupported assertions seldom establish a genuine issue requiring a trial.
Instead, the respondent should clearly identify the specific factual disputes, explain the legal defence relied upon and, where appropriate, identify additional evidence expected to become available through disclosure, expert investigation or witness testimony before trial. Depending on the nature of the dispute, this may involve disputed contractual terms in a commercial matter, contested calculations in a debt recovery claim, alleged misrepresentations supporting a defence to a personal guarantee, competing expert opinions in a building dispute or conflicting professional standards in a negligence claim.
Is filing a defence enough to oppose a summary judgment?
No. A filed Defence does not, by itself, prevent summary judgment. The applicant bears the onus of satisfying the Court of the requirements in r 292. As a practical matter, however, a respondent who relies on disputed facts or an affirmative defence should ordinarily put forward affidavit evidence complying with r 295 and any supporting documents necessary to demonstrate the substance of that position. Unsupported pleadings alone will rarely be sufficient where the applicant has otherwise established a prima facie entitlement to summary judgment.
Common Arguments Used to Oppose a Summary Judgment
The most persuasive way to oppose a summary judgment application is to focus on the real issues rather than raise every possible objection. A smaller number of well-supported factual or legal disputes will usually be more effective than broad allegations unsupported by admissible evidence.
Genuine Dispute of Fact
A genuine dispute of fact may provide a strong basis for resisting summary judgment where it demonstrates a real prospect of successfully defending the claim or a continuing need for a trial. This may arise where the parties disagree about what was said during negotiations, whether contractual obligations were performed, whether payments were made, or whether particular events occurred. If resolving a material dispute depends on assessing witness credibility or testing evidence through cross-examination, that circumstance may weigh strongly against summary judgment.
Legal Defence Has Merit
Summary judgment may also be refused where there is a properly arguable legal defence, even if its ultimate success remains uncertain. Examples include limitation periods, estoppel, competing interpretations of contractual terms, contractual or equitable set-off, allegations of misleading or deceptive conduct, unconscionable conduct, or disputes about the amount claimed. The respondent does not need to prove the defence conclusively but must demonstrate that it has sufficient substance to justify a trial.
More Evidence Is Needed
In some cases, summary judgment is premature because essential evidence has not yet been obtained. Disclosure may not have occurred, relevant witnesses may not yet have provided statements, or expert evidence may still be required in areas such as construction defects, accounting disputes or professional negligence. Where further evidence could materially affect the outcome, the Court may conclude that the matter should proceed through the ordinary litigation process rather than be determined summarily.
Can I oppose summary judgment if I do not yet have all the evidence?
Potentially, yes. If you can explain why important evidence has not yet been obtained and demonstrate that it could materially affect the outcome, the Court may consider that the dispute should proceed to trial. However, this must be supported by credible affidavit evidence rather than mere speculation.
Respondents should avoid advancing arguments that lack a proper factual or legal foundation simply to delay judgment. Queensland courts take a cautious approach to summary judgment, but they also expect parties to litigate efficiently and honestly. Weak or contrived defences may be rejected, and an unsuccessful respondent may be ordered to pay the plaintiff’s costs of the application in addition to any judgment ultimately entered.
Common Mistakes Seen in Practice
A common mistake in responding to summary judgment applications is focusing on the existence of a filed Defence rather than the requirements of r 292. Filing a Defence does not automatically prevent summary judgment. The Court must determine whether the applicant has established that the respondent has no real prospect of successfully defending all or part of the claim and that there is no need for a trial. A respondent should therefore identify the evidence and legal issues that bear directly on those requirements.
Another frequent mistake is filing affidavit material that merely repeats the allegations in the Defence. Affidavits should identify the specific facts in dispute and exhibit the documents supporting those facts, such as contracts, emails, invoices or contemporaneous correspondence. Unsupported assertions rarely persuade the Court that a trial is necessary.
Procedural compliance is equally important. I regularly see respondents miss affidavit filing deadlines, serve evidence late or attempt to rely on documents that should have been included in their original material. These errors can significantly undermine an otherwise arguable defence and may leave the Court with little admissible evidence to consider.
Strategically, respondents should resist the temptation to argue every aspect of the underlying dispute. A summary judgment application is an interlocutory hearing, not the trial itself. The objective is to demonstrate why the case cannot fairly be determined without a trial, not to prove every element of the defence. Seeking legal advice only a few days before the hearing also limits the opportunity to prepare persuasive affidavit evidence and identify the strongest issues requiring judicial determination. In my experience, respondents who focus on a small number of well-supported factual or legal disputes generally place themselves in a much stronger position than those who advance numerous unsupported arguments.
Successfully responding to a summary judgment application often requires strategic procedural decisions made very early in the litigation. Learn more about how experienced commercial litigators approach debt recovery disputes in our article Why Use a Debt Recovery Law Firm?
What Happens if Summary Judgment Is Granted?
If the Court grants summary judgment, judgment may be entered for all or part of the plaintiff’s claim without a trial. Once the judgment is entered and any applicable stay or procedural requirement is addressed, the judgment creditor may pursue available enforcement processes. Depending on the circumstances, the judgment creditor may seek an enforcement hearing or apply for an enforcement warrant, including a warrant for seizure and sale of property, redirection of debts or redirection of earnings, where the relevant requirements are satisfied.
For an individual judgment debtor, a qualifying final judgment may support the issue of a bankruptcy notice under the Bankruptcy Act 1966 (Cth). For a company, a creditor may serve a statutory demand under s 459E of the Corporations Act 2001 (Cth) if the statutory requirements are met. Failure to comply with a valid demand may create a presumption of insolvency that can be relied upon in a winding-up application.
Understanding these consequences highlights why responding promptly to a summary judgment application is critical.
Conclusion
Successfully opposing a summary judgment application is not about proving you will ultimately win the case. The central question is whether the plaintiff has established that you have no real prospect of successfully defending all or part of the claim and that there is no need for a trial. Where material factual or legal issues remain that require the ordinary processes of a trial, summary judgment may be inappropriate. Well-prepared affidavit evidence, supported by relevant documents and careful procedural compliance, can therefore be critical to the outcome of the application.
Frequently Asked Questions
The following questions explain how to oppose a summary judgment application, including what evidence is needed, whether filing a Defence is enough, when disputed facts require trial, how deadlines operate and what can happen if judgment is granted.
Can I oppose a summary judgment application in Queensland?
Yes. You do not need to prove that you will ultimately win the case in order to oppose a summary judgment application. The plaintiff must satisfy the Court that you have no real prospect of successfully defending all or part of the claim and that there is no need for a trial. Evidence demonstrating a genuine factual or legal dispute may therefore be important in showing that those requirements have not been satisfied.
What happens if I do nothing after receiving a summary judgment application?
If you do not respond, the Court may grant summary judgment against you. The successful party may then begin enforcement action, including enforcement warrants, examination procedures, bankruptcy proceedings against individuals or statutory demand procedures against companies.
Is filing a defence enough to stop summary judgment?
No. Filing a Defence alone is usually insufficient. The Court considers whether you have a real prospect of successfully defending the claim based on the evidence before it. Affidavit evidence and supporting documents are often critical to demonstrating that a trial is necessary.
What evidence should I file to oppose summary judgment?
You should file sworn affidavit evidence supported by relevant documents such as contracts, emails, invoices, payment records, correspondence or expert reports. The evidence should identify the specific factual or legal disputes requiring determination at trial rather than simply denying the plaintiff’s allegations.
Can summary judgment be refused if important evidence has not yet been obtained?
Yes. If key evidence is still to be obtained through disclosure, expert investigation or witness evidence, the Court may determine that summary judgment is premature. You should explain why the evidence is important and how it may affect the outcome of the case.
How long do I have to respond to a summary judgment application?
Under r 296(2) of the Uniform Civil Procedure Rules 1999 (Qld), a respondent must ordinarily file and serve any affidavit on which they intend to rely at least four business days before the hearing. The applicant’s application and supporting affidavits must ordinarily be served at least eight business days before the hearing, and any applicant’s affidavit in reply must ordinarily be served at least two business days before the hearing. Court orders may alter the practical timetable, so the application and any existing directions should be checked immediately.
Can I oppose a summary judgment if I dispute only part of the debt?
Potentially, yes. A genuine dispute about part of the amount claimed, such as disputed invoices, contractual set-off or incorrect calculations, may be enough to prevent summary judgment on all or part of the claim. The dispute must be supported by evidence, not merely asserted.
What happens if summary judgment is granted against me?
If summary judgment is granted, judgment may be entered without a trial. Subject to any stay of enforcement or other applicable procedural requirement, the judgment creditor may then pursue available enforcement processes. Depending on the circumstances and the Court in which the judgment is enforced, these may include enforcement hearings, enforcement warrants, bankruptcy notices against individuals or statutory demands and winding-up proceedings against companies. In the Supreme Court, an enforcement warrant may also contain a charging order where the statutory requirements are satisfied.
Can the Court decide disputed facts at a summary judgment hearing?
The Court can consider factual issues on a summary judgment application, but it will ordinarily exercise considerable caution where material facts are genuinely disputed or the outcome depends on resolving credibility issues. If determining the claim requires conflicting evidence to be tested by cross-examination, further disclosure, expert evidence or other trial processes, that may demonstrate that there remains a need for a trial.
Should I obtain legal advice before the summary judgment hearing?
Yes. Summary judgment applications are often determined principally on the affidavit material filed before the hearing. Early legal advice allows time to prepare evidence, identify the strongest legal arguments and comply with the procedural requirements before the relevant filing and service deadlines.
