Summary disposal and strike out applications

[2-6900] Summary disposal

The courts have power to terminate proceedings at an early stage where either the plaintiff or defendant has no prospect of success, without putting the other party to the expense and delay of a full trial of the proceedings or the preliminary steps involved in preparing for such a trial such as discovery, interrogatories and inspection of property.

These powers, which apply in all courts except the Small Claims Division of the Local Court, may be summarised as follows:

  • the power to enter judgment for a plaintiff pursuant to UCPR r 13.1,

  • the power to summarily dismiss proceedings pursuant to r 13.4,

  • the power to dismiss proceedings for non-appearance of the plaintiff at the hearing pursuant to r 13.6,

  • the power to strike out pleadings pursuant to r 14.28,

  • the court’s inherent power to prevent abuse of its process.

See generally Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 940–944.

Remedy discretionary

Summary judgment and summary dismissal are discretionary remedies and although detailed argument may be necessary to determine the hopelessness of the respondent’s case, the more complex and arguable the legal point, or the more dependent it may be on debatable factual premises, the less likely that summary disposal will be appropriate, particularly if the relevant law is in a state of development: NRMA Insurance Ltd v AW Edwards Pty Ltd (1995) 11 BCL 200. Where there are multiple parties, the desirability of proceedings against all parties being heard before removing one party may constitute a reason for refusing summary judgment: NRMA Insurance Ltd v AW Edwards Pty Ltd, above.

As to applications for summary judgment in cases where a defendant seeks to rely on the Contracts Review Act 1980, see Ritchie’s at [13.1.40].

Generally

Although its use is appropriate in a variety of circumstances provided they come within the principles set out above, the procedure of summary judgment or dismissal is particularly useful in cases where irrelevant and extravagant claims are made in pleadings by a party (often unrepresented), and the other party will be put to considerable expense in providing evidence to refute such irrelevant and extravagant allegations. On the other hand, where there can be no dispute on the facts, there is often little point in an application for summary disposal and the preferable course is to proceed expeditiously to a final hearing.

Further proceedings

If a party against whom summary judgment is given has made a cross-claim against the party obtaining the judgment, the court may stay enforcement of the judgment until determination of the cross-claim: r 13.2.

If on an application for summary judgment, the proceedings are not wholly disposed of by the judgment, the proceedings may be continued as regards any claim or part of a claim not disposed of by the judgment: r 13.3.

[2-6910] Summary judgment for plaintiff

Rule 13.1 provides that, if on application by the plaintiff in relation to the plaintiff’s claim for relief or any part of the plaintiff’s claim for relief:

(a) 

there is evidence of the facts on which the claim or part of the claim is based, and

(b) 

there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed,

the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires.

In order to succeed on such an application, the plaintiff must adduce evidence (on affidavit):

  • to establish the facts justifying the claim to relief, and

  • from the plaintiff or some responsible person that in his or her belief, the defendant has no defence to the claim or part thereof, or except as to the amount of damages, and

  • if the claim for summary judgment is disputed, to show that there is no real issue to be tried.

The rules of the various courts formerly provided that applications for summary judgment were not available in respect of claims for fraud, defamation, malicious prosecution or false imprisonment. No such restriction exists under the UCPR.

Where the plaintiff’s entitlement to judgment is clearly established, but the amount of damages or the value of the goods the subject of the proceedings remains to be determined, the court may give judgment for damages to be assessed: r 13.1(2).

When entering judgment for the plaintiff under r 13.1, it is desirable to deal not only with the costs of the motion for summary judgment, but also with the costs of the proceedings so far.

No issue to be tried

The plaintiff must show that any defence intended to be relied on is untenable and cannot possibly succeed. See generally Spellson v George (1992) 26 NSWLR 666 at 678–679 per Young AJA, with whom Handley JA and Hope AJA agreed. Summary judgment will not be granted where there is any serious conflict as to a matter of fact (Sidebottom v Cureton (1937) 54 WN (NSW) 88), or any question of credit involved: Bank of New South Wales v Murray [1963] NSWR 515. The power to order summary judgment should be exercised with great care, and not unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99.

In practice, the test applied to summary judgment applications by plaintiffs is the same as that applied to summary dismissal applications by defendants. That test is that “the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion”. The test has been variously expressed, including “so obviously untenable that it cannot possibly succeed”, “manifestly groundless”, etc: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128–129 per Barwick CJ. See also Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J; Theseus Exploration NL v Foyster (1972) 126 CLR 507 at 514; Webster v Lampard (1993) 177 CLR 598 at 602–603; Cosmos E-C Commerce Pty Ltd v Sue Bidwell & Associates Pty Ltd [2005] NSWCA 81 at [37]–[38].

Summary disposal is not limited to cases where argument is unnecessary to show the futility of the claim or defence, and argument, even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff (or of the defendant) is so clearly untenable that it cannot possibly succeed: General Steel Industries v Commissioner for Railways (NSW), above, at 130. The court will determine questions of law on such applications if satisfied that the point is clear: Silverton Ltd v Harvey [1975] 1 NSWLR 659 at 665. It follows that the court examines the evidence, not for the purpose of making findings of fact, but only to determine whether a triable issue is disclosed: Wickstead v Browne (1992) 30 NSWLR 1 at 9.

Belief that no defence

The requirement in r 13.1(1)(b) for evidence from the plaintiff or some responsible person of belief that the defendant has no defence, does not require any particular form of words. The requisite belief must be established, but that can be done by an inference properly drawn from evidence furnished by the plaintiff or other responsible person; opinion, as opposed to belief, is insufficient: Cosmos E-C Commerce Pty Ltd v Bidwell & Associates Pty Ltd, above, at [47].

[2-6920] Summary dismissal

Rule 13.4(1) provides that, if it appears to the court that in relation to the proceedings generally or to any claim for relief:

  • the proceedings are frivolous or vexatious, or

  • no reasonable cause of action is disclosed, or

  • the proceedings are an abuse of process,

the court may order that the proceedings be dismissed generally or in relation to that claim. On such an application, the court may receive evidence: r 13.4(2).

Frivolous proceedings

Neither the CPA nor the UCPR contain a definition of “frivolous”. It is defined in the Shorter Oxford Dictionary as “of little or no value or importance, paltry; (of a claim, charge, etc) having no reasonable grounds; lacking seriousness or sense”; and in the Macquarie Dictionary as “of little or no weight, worth or importance; lacking seriousness or sense”. In rules such as the present it is invariably used in conjunction with “vexatious”.

Vexatious proceedings

In Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491, in the context of the Supreme Court Act 1970, s 84(1) (vexatious litigant), Roden J said:

1. 

Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2. 

They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

3. 

They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

Vexatious proceedings have also been described as “proceedings intended to harass or annoy, cause delay or … taken for some other ulterior purpose or which lack reasonable grounds”: B Cairns, Australian Civil Procedure, 11th edn, Thomson Reuters, Australia, 2016 at [3.30]. For an examination of relevant principles and the Vexatious Proceedings Act 2008, see Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [41], [67].

Section 84 of the Supreme Court Act was repealed by the Vexatious Proceedings Act 2008 (the Act). Section 6 of the Act (as amended by the Vexatious Proceedings Amendment (Statutory Review) Act 2018), provides that vexatious proceedings include:

  • proceedings that are an abuse of the process of a court or tribunal, and

  • proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and

  • proceedings instituted or pursued without reasonable ground, and

  • proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings.

Section 4 defines “proceedings” to include any civil and criminal proceedings or proceedings before a tribunal.

In practice, cases coming within para (a) of r 13.4(1) will generally also come within para (b) (no reasonable cause of action) and/or para (c) (abuse of process).

See [2-7600]ff for further information.

No reasonable cause of action

Unlike applications to strike out pleadings under UCPR r 14.28, where the court is concerned solely with the form of the pleading and where, if the application is successful, leave may be granted to amend to plead in proper form, in applications under this rule the court is not limited to a consideration of the form of the pleading but receives evidence to determine whether the plaintiff’s claim has any prospect of success. If it has, but the claim is not adequately expressed in the pleading, the court should not dismiss the proceedings or the particular claim, but should grant leave to the plaintiff to file an amended statement of claim or cross-claim (in the case of an application in respect of a cross-claim). See generally Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 943–944.

The test for determining whether a reasonable cause of action is disclosed is that set forth in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128–129 and the other cases referred to in No issue to be tried at [2-6910].

Where the facts are peculiarly within the defendant’s knowledge, the plaintiff’s claim should not be summarily dismissed because of gaps in the plaintiff’s case if the necessary evidence might be obtained as a result of discovery or interrogatories: Wickstead v Browne (1992) 30 NSWLR 1 at 11.

Similarly, one of a number of defendants cannot be entitled to summary dismissal because of deficiencies in the plaintiff’s case because, if the matter proceeds to trial, such deficiencies may be filled by evidence in the case of other defendants: Wickstead v Browne, above, at 11–12; Ford v Nagle [2004] NSWCA 33.

Abuse of process

Abuse of process can take many forms including:

  • The institution of proceedings for an improper purpose, for example, to exert pressure on a former employer for reinstatement, to induce a favourable settlement of other proceedings or to extort money: Williams v Spautz (1992) 174 CLR 509;

  • The bringing of concurrent proceedings in different courts relating to the same subject-matter: Moore v Inglis (1976) 50 ALJR 589; Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2003] NSWCA 192;

  • An attempt to re-litigate issues which have already been determined in previous proceedings where the principles of res judicata or issue estoppel are applicable: Stokes (by a tutor) v McCourt [2013] NSWSC 1014;

  • An attempt to litigate issues which could and should have been litigated in previous proceedings: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589;

  • Claims that cannot be justly determined, for example, on account of delay: Herron v McGregor (1986) 6 NSWLR 246 at 251; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256;

  • Modest claims which will involve disproportionate costs and time to determine. Compare CPA s 60, and see Jameel v Dow Jones & Co Inc [2005] QB 946 at [67]–[76];

  • Forum non conveniens: see “Stay of pending proceedings” at [2-2610];

  • Destruction of evidence: Palavi v Queensland Newspapers Pty Ltd (2012) 84 NSWLR 523.

Limitation defence

In Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 at 533, the majority described it as undesirable that limitation questions be decided in interlocutory proceedings, except in the clearest of cases. In Hillebrand v Penrith Council [2000] NSWSC 1058, Austin J relied on the former equivalent of r 13.5 to strike out a claim for relief which was clearly statute-barred.

[2-6930] Dismissal for non-appearance of plaintiff at hearing

Rule 13.6 provides that if there is no appearance by or on behalf of a plaintiff at a hearing of which he has due notice, the court may adjourn the hearing to another date and direct that not less than five days before that date, a notice of the adjournment be served on the plaintiff advising that in the event of further non-appearance the proceedings may be dismissed. If such notice has been given, and there is no appearance on the adjourned date, the court may dismiss the proceedings.

“Hearing” is defined in CPA s 3 and includes both trial and interlocutory hearing.

This rule has nothing to do with the strength or weakness of the plaintiff’s case or pleadings, but only with the fact of non-appearance. It is included here only for completeness and because it occurs in Pt 13.

[2-6940] Striking out pleadings

Rule 14.28 provides that the court may strike out the whole or any part of a pleading if it discloses no reasonable cause of action or defence, etc, or has a tendency to cause prejudice, embarrassment or delay in the proceedings, or is otherwise an abuse of the process of the court.

Unlike UCPR Pt 13, applications under this rule are directed to the form of the pleading rather than to the merits, or lack thereof, of the respective parties, and if the application is successful the order usually made is not that the proceedings be struck out or dismissed, but that the pleading or particular parts thereof be struck out, usually with leave given to file an amended document, in which case the proceedings remain on foot.

If on the other hand, the evidence establishes that, no matter how the plaintiff pleads his or her case, he or she has no arguable cause of action and cannot possibly succeed, the proceedings should be dismissed pursuant to r 13.4.

Although r 14.28(2) permits the court to receive evidence on applications under the rule, the focus of such an application is primarily on the form of the pleading and evidence will be of only limited use. It may, however, be relevant to explain the allegations or terms used in the pleading or to prove that the pleading is inconsistent with a previous judgment or admission.

Discloses no reasonable cause of action or defence

A pleading or part thereof will be struck out if the court is satisfied that even if all the allegations of fact set out in the pleading are proved, those facts would not establish the essential ingredients of a cause of action or constitute a defence. Often such applications are used in this way to determine whether the facts alleged (and for the purpose of the application assumed to be true) constitute a valid cause of action or defence.

Prejudice, embarrassment or delay

A pleading or part thereof may tend to prejudice, embarrass or delay the fair trial of the proceedings if it contains allegations which are vague or imprecise such that the other party cannot plead to such allegations specifically, or if it contains allegations that are irrelevant, unnecessary or scandalous.

See generally Northam v Favelle Favco Holdings Pty Ltd (unrep, 7/3/95, NSWSC) per Bryson J.

In some such cases it will be appropriate to merely strike out the offending passages, in others it will be more appropriate to strike out the whole pleading and grant leave to replead.

Before seeking on order under this rule, the solicitors for the moving party should write to the opposing solicitors pointing out the objection and inviting an amendment. Whether such a letter has been written and its response, if any, will often be relevant on the question of costs.

Abuse of process

See [2-6920] above.

[2-6950] Inherent power

Every court has an inherent power to stay or dismiss proceedings or strike out pleadings which are frivolous or vexatious or otherwise an abuse of process: Brimson v Rocla Concrete Pipes, above, at 944. As Cross J there pointed out in Brimson at 944, the equivalent power under r 13.4 (former SCR Pt 13 r 5) and the inherent power are now apparently co-extensive; and it is difficult to envisage any case where it would be necessary to rely on the inherent power rather than the rules. See also Hillebrand v Penrith Council, above, at [30].

[2-6960] Sample orders

Legislation

  • CPA ss 3, 60

  • SCA s 84(1)

  • Vexatious Proceedings Act 2008, s 6

Rules

  • UCPR Pt 13, rr 13.1–13.6, 14.28

Further reference

  • B Cairns, Australian Civil Procedure, 11th edn, Thomson Reuters, Australia, 2016