Ending proceedings early - Default and Summary judgment and Delay (QLD + FCR)

Question 1

How are proceedings ended early in Queensland? (7) state rules as well

Answer 1

1. Dismissal for want of prosecution (r 280)
2. Default judgment (rr 281-290)
3. Summary judgment (rr 292-293)
4. Discontinuance (rr 303-305; 309)
5. Withdrawal (r 306).
6. Withdrawal of defence or subsequent pleading (r 308)
7. Matter is settled, notice of discontinuance required under (r 308A)

Question 2

How are proceedings ended early in the Federal Courts?

Answer 2

1. Default Judgment (r 5.22)
2. Summary Judgment, Withdrawal of defence, etc Discontinuance (rr 26.01-26.15)

Question 3

What is default judgment ? (UCPR) + (FCR)

Answer 3

QLD - Where proceedings started by claim and no NOTID has been filed when required (r 137) can apply for default judgment (r 281). Then rules for debt or liquidated demand, unliquidated damages, recovery etc (rr 283-289)

FCR - r 5.22

Question 4

How can you set aside default judgment? (UCPR)

Answer 4

QLD - On application, the court has discretion to set aside or amend default judgment (r 290). The applicant will need to explain their failure or delay in pleading, and/or show there is a prima facie defence to the claim.

Question 5

What are the rules for when can a court give summary judgment? (QLD) and (FCR)

Answer 5

QLD - 292-293

FCR - s 31A Federal Court Act and r 26.01 FCR.

Question 6

What is the test for summary judgment in QLD and FCR?

Answer 6

QLD - 292-293 - Any time after a NOTID is filed can apply for summary judgment…court must be satisfied of BOTH that (1) the defendant has NO REAL prospects of successfully defending all or part of claim and (2) there is no need for trial (Shaw v DCT). Shaw v DCT Words “no real prospect of succeeding” directs court to see where there is a realistic instead of a fanciful prospect of success.

FCR - 26.01…the court may give summary judgment where the court is satisfied the defendant has (1) NO REASONABLE prospects of successfully defending the claim (Spencer v CTH). Spencer v CTH A case may have “no reasonable prospect” of success even though it is not hopeless or bound to fail. A discretion not be exercised lightly, the enquiry is whether there is a reasonable prospect of success NOT an enquiry that
it would fail or is doomed to fail.

Question 7

What is the effect of r280 and r389?

Answer 7

Court has power to dismiss if plaintiff fails to take a step with required time, r 280,
(leave for want of prosection)

r 389 requires leave if no step is taken in proceedings for two years.

CF Tyler v Custom Credit Corp 12 factors which deals with these.

Question 8

What is the section and test and considerations for an application for want of prosecution? (Hint case)

Answer 8

r 280- Court has power to dismiss if plaintiff fails to take a step with required time, r 280 (leave for want of prosecution). Onus is on applicant.

Tyler v Custom Credit Corp:-
1. How long ago events in statement of claim occurred
2. How long ago litigation commenced or causes of action added
3. What prospects plaintiff has of success in action
4. Whether or not disobedience of court orders or directions
5. Whether or not litigation categorized by period of delay in between taking steps
6. Whether delay attributable to P, D or both
7. Whether impecuniosity of P has been responsible for delay in litigation, and whether or not D responsible for P’s impecuniosity
8. Could litigation be concluded by striking out P’s claim
9. How far litigation has progressed
10. Whether or not delay caused by P’s lawyers
11. Whether explanation for delay
12. Whether delay resulted in prejudice to D leading to inability to conduct fair trial

Question 9

What can happen if proceedings are delayed?

Answer 9

1. Application to end proceedings for want of prosecution (r 280; Tyler v Custom Credit Corp)
2. Where no step has been taken after 1 year from the last step must give notice to other party, or if there has been 2 years must apply to the court before a step is taken (r 389; Tyler v Custom Credit Corp)

Question 10

Theory question: Rule 5 of the UCPR provide the purpose of the rules is too facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. The UCPR provides rules regarding about dealing with proceedings where there has been delay.

What is the problem with delayed proceedings and what is the rationale for having rules for dealing with delayed proceedings?

Answer 10

Unnecessary delay in proceedings had a tendency to bring the legal system into disrepute and to decrease the chance of their being a fair and just result (Tyler v Custom Credit Corp).

The UCPR set out rules for (1) allowing a party to apply to have proceedings dismissed for want of prosecution (r 280) and also (2) rules regarding parties wanting to take a step in proceedings after a certain amount of time (r 381).

The court Tyler v Customer Credit Corp remarked that the rationale of the rule requiring leave to proceed after a long delay is to prevent abuse of process. The Court must be satisfied that the continuation of proceedings would not involve injustice or unfairness to one of the parties by reason of delay.

The court also also set out 12 considerations which determining whether to grant applications per r 280 and r 381.

Question 11

Proceedings can be ended early by settling matters through offers…explain this

Answer 11

r 353 a parties may resolve the matter through sending formal offers to settle in writing. r 355 offers must be open for acceptance for no less than 14 days…and court must grant leave to withdraw offer during that period.

r 355 These can be made any time before final relief

r 356-7 offers are without prejudice and can not be disclosed during the hearing

r 358 details when an offer is accepted

r 360 -361 offers if not accepted have cost implications.