Summary judgment application in Queensland

• Published date: 01 September 2022
• Law Firm: Stonegate Legal
• Author: Mr Wayne Davis

A summary judgment application is an application for a plaintiff or a defendant seeking to end the legal proceedings early.

A summary judgment will be given when a defendant or plaintiff have no real prospect of succeeding in the claim or a part of the claim; and there is no need for a trial.

The Courts have stated that:

1. Summary judgment should only be given in the clearest of cases and
2. The Court should approach applications by defendants with caution because plaintiffs should not be stopped from pursuing a case that may be successful.

In this article, our Queensland litigation lawyers explain what the Courts have said in relation to summary judgment applications, and the steps which need to be taken to be successful.

What is Summary Judgment?

A summary judgment application is distinguishable from a default judgment application is that a notice of intention to defend must have been filed for a this type of judgment to be given.

• No notice of intention to defend and defence filed - default judgment.
• Notice of intention to defend and defence filed - summary judgment

Summary judgment for the Plaintiff is given pursuant to rule 292 of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR") which says:

(1) A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.

(2) If the court is satisfied that-

(a) the defendant has no real prospect of successfully defending all or a part of the plaintiff's claim; and

(b) there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff's claim and may make any other order the court considers appropriate.

Summary judgment for the Defendant is given pursuant to rule 293 of the UCPR which says:

(1) A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.

(2) If the court is satisfied-

(a) the plaintiff has no real prospect of succeeding on all or a part of the plaintiff's claim; and

(b) there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff's claim and may make any other order the court considers appropriate.

Practically identical, the main points to consider are:

1. The respondent has no real prospects of prosecuting or defending the claim; and
2. There is no need for a trial.

We will explain what the Courts have determined these things to mean.

What does "no real prospects" mean?

In Bernstrom v National Australia Bank Ltd [2002] QCA 231 Jones J said at [37] referring to the UK Court of Appeal case of Swain v Hillman [2001] 1 All ER 91:

In Swain Lord Woolf said concerning the relevant rules:-

.the court now has a very salutary power, both to be exercised in a claimant's favour or, where appropriate, in a defendant's favour. It enables the court to dispose summarily of both claims or defences which have no real prospect of being successful. The words 'no real prospect of succeeding' do not need any amplification, they speak for themselves. The word ' real' distinguishes fanciful prospects of success or .they direct the court to the need to see whether there is a 'realistic' as opposed to a 'fanciful' prospect of success."[14]

Of the rationale for those new rules, His Lordship said:-

"It is important that a judge in appropriate cases should make use of the powers contained in Pt 24. In doing so he or she gives effect to the overriding objectives contained in Pt 1. It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose, and I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant's interests to know as soon as possible that that is the position. Likewise, if a claim is bound to succeed, a claimant should know that as soon as possible."

This statement by Lord Woolf is clearly consonant with the philosophy of the UCPR as set out in Rule 5. It is this philosophy which underpins the change in approach reflected in the new rules. These remarks apply with equal force to both rr. 292 and 293 of the UCPR.

In Qld Pork P/L v Lott [2003] QCA 271 Cullinane J referred to Bernstrom (above) and Swain (above) with approval as to the rationale and scope of rule [292 &] 293.

In Queensland University of Technology v Project Constructions (Aust) Pty Ltd [2003] 1 Qd R 259 the Holmes JJ said with Davies JA, Mullins agreeing at [7]:

[g]reat care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case.

In Gray v Morris [2004] QCA 5 McMurdo J said at [46]:

With respect to those who may have expressed a different view, it seems to me that rr 292 and 293 should be applied by reference to their clear and unambiguous language, without a need for any paraphrase or comparison with a previous rule. But in the application of the plain words of rules 292 and 293, and in particular the consideration of whether there is a need for a trial, a court must keep in mind why the interests of justice usually require the issues to be investigated at a trial.

In Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, Williams JA said at [11] referring to Lord Woolf in the UK Court of Appeal case of Swain v Hillman [2001] 1 All ER 91:

The words 'no real prospect of succeeding' do not need any amplification, they speak for themselves. The word 'real' distinguishes fanciful prospects of success or . they direct the court to the need to see whether there is a 'realistic' as opposed to a 'fanciful' prospect of success

Again, referring to Swain v Hillman, Williams JA went on to say at [11]:

The third member of the court, Judge LJ, whilst recognising that summary judgment was a "serious step", went on to say at 96: "This is simple language, not susceptible to much elaboration, even forensically. If there is a real prospect of success, the discretion to give summary judgment does not arise merely because the court concludes that success is improbable."

In Jessup v Lawyers Private Mortgages Ltd [2006] QSC 3, His Honour Chesterman J (as he then was) said at [20]:

If summary judgment is not to work injustice it must be limited to those cases where it can be seen that a plaintiff or defendant, as the case may be, could not succeed at a trial of the action. It is only where a trial can be seen to be pointless that a judgment should be entered summarily.

In summary of the legal principles articulated above, Bowskill SJA said with McMurdo and Mullins JJA agreeing in Halvorson & Anor v Birkenhead Super Pty Limited atf Birkenhead Superannuation Benefits Fund [2021] QCA 211:

The parties agreed that the judge at first instance correctly articulated the legal principles which apply to an application for summary judgment under r 292 of the Uniform Civil Procedure Rules 1999, by reference to this Court's decision in Deputy Commissioner of Taxation v Salcedo [2005] QCA 227; [2005] 2 Qd R 232. His Honour was cognisant of the need to be satisfied the appellants (defendants) 'ha[d] no real prospect of successfully defending all or a part of the plaintiff's claim' and...