Summary stay - dismissal of claim Flashcards
When can a party apply for a summary stay of a claim?
A party can make an application (on summons, Form 46A) supported by affidavit, that the Court order a stay or judgment where the proceeding or defence/claim is (r 23.01):
* scandalous, frivolous or vexatious;
* an abuse of the process of the Court
On what basis can a party make an application to strike out the pleadings?
A party can make an application (on summons, Form 46A) to strike out the pleading on the basis that it (r 23.02):
* does not disclose a cause of action or defence;
* is scandalous, frivolous or vexatious;
* may prejudice, embarrass or delay the fair trial of the proceeding; or
* is otherwise an abuse of the process of the Court
What is the application to strike out a pleading about?
Under r 23.02, the application is not that the proceeding be brought to an end (Hoh v Frosthollow [2014] VSC 77). Rather, it is that certain pleadings be struck out. Usually, the Court will give the party an opportunity to amend its pleadings once particulars have been struck out.
Application to strike out the pleadings
Admissibility of evidence in strike out/ stay/ dismissal applications
Admissibility of evidence in Strike out and Summary Stay/Dismissal applications:
* The Court will not look to evidence in an application for strike out under r.23.02. This is because the question is whether the pleading complies with the rules.
A proceeding will not be open to objection on the ground that it merely seeks declaratory judgment or order (r 23.05).
Definition of scandalous
allegation made for the sole purpose of abusing or injuring the opposite party;
Definition of Frivolous or vexatious
Frivolous or vexatious: the claim is groundless, or lacking a legal basis or merit;
Definition of Prejudice, embarrass or delay
places the opposite party in a position where he or she does not know the case against him (could be by lacking detail, by being unintelligible, vague, ambiguous or too general);
Definition of Abuse of process
court’s process being invoked for an illegitimate or collateral purpose; court’s procedures being unjustifiably oppressive to a party; bringing the administration of justice into disrepute (Rogers (1994)).
