Summary judgement

Question 1

What is the test for summary judgements?

Answer 1

Court may give summary judgment if satisfied that a claim a defence or a counterclaim or part of the claim, defence or counterclaim has no real prospect of success (s63 CPA)

Question 2

Can the court refuse to make a summary judgement despite no real prospects of success?

Answer 2

• Court retains discretion to allow a matter to proceed to trial if court satisfied that despite there being no real prospects of success, the matter should not be disposed of by summary judgment because it would not be in the interests of justice to do so, or because only a full hearing on the merits would be appropriate (s64)

Question 3

What should the court consider when reviewing an application for a summary judgement?

Answer 3

• Court should only exercise the power if it is clear that there is no real question to be tried.
• Should consider whether any defect can be remedied by amendment.
• Lysaght: test should be construed as one of
  o whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success,
  o the ‘real chance of success’ test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test; and that, as the law is at present understood,
  o the real chance of success test permits the possibility that there may be cases, yet to be identified, in which that although the respondent’s case is not ‘hopeless’ or ‘bound to fail’, it does not have a real prospect of succeeding.

Question 4

Who can apply for a summary judgement?

Answer 4

• Court may order summary judgment for a party on the application of a party or on the court’s own motion (s63 CPA)
• P can apply for summary judgment – s61, s53(2)(a) CPA
• D can apply – s62 – s63(2)(b) CPA

Question 5

What is the process for P applying for a summary judgement?

Answer 5

• P can apply for summary judgment – s61, s53(2)(a) CPA
• Application is to be made on summons supported by affidavit which verifies the facts on which the claim or the part of the claim relates, and stating in the belief of deponent that the claim/part of the claim has no real prospect of success (r22.04).
• Serve on defendant at least 14 days before the hearing named in the summons.
• Defendant can then show cause by affidavit (r22.05)
• Court may allow an affidavit from P in response (r22.06)
• On hearing of the application, court may dismiss the application or make such other order as will see the matter heard in full (r22.05)

Question 6

What can the court order after a summary judgement application?

Answer 6

o Court can dismiss the application;
o Give judgment for P against D;
o Give D leave to defend either unconditionally or on security;
o With the consent of all parties, dispose of the proceeding finally in a summary manner – r22.08;
o Order that the proceeding be set down for trial;
o Define the questions be tried – r22.11

Question 7

What is the process for D applying for summary judgement against P?

Answer 7

• Application is to be made by summons, and can file affidavit with summons in support (r22.18).
• Plaintiff can then show cause against the application by affidavit (r22.19)

Question 8

Can a third party apply for a summary judgment?

Answer 8

YES
* R22.24 enables summary judgment by or against a third or subsequent party.

Question 9

What will happen if a party does not appear for an application for a summary judgement?

Answer 9

• R22.15 allows the court to do the following, if a party fails to appear at the hearing of an application for summary judgment:
  o set aside; or
  o vary; or
  o give judgment
  against that party for the relief or remedy sought in the originating motion.