Alternative Dispute ResolutionBankruptcy & InsolvencyNewsSLF Lawyers NewsSummary Judgment Applications in Queensland

Have you been served with a Summary Judgment Application?

Following the filing of a Notice of Intention to Defend and Defence by a Defendant, a Plaintiff may consider the merits of the Defence raised to assess the possibility of making an application for summary judgment. An application for summary judgment allows a party to avoid a full trial by bringing the court’s attention to a deficiency in the Defence to the Claim, and if successful, will obtain judgment against the Defendant for a fraction of the cost and time it would ordinarily spend in obtaining judgment in the usual course of litigation.

 

Introduction of Summary Judgment Applications

Historically, the introduction of summary judgment applications occurred after growing pressure from ordinary citizens expressing their concerns and frustrations over lengthy delays and technicalities in common law procedure, meaning a defendant could delay judgment against them because of a technical defence.

Now, under the summary procedure, a party may obtain judgment for cases “…where there can be no reasonable doubt that a plaintiff is entitled to judgment and where, therefore, it is inexpedient to allow the defendant to defend for the mere purposes of delay”, or where there is no answerable case, where the party can show the court that they are bound to succeed.

 

Summary Judgment for the Plaintiff

In Queensland, a Plaintiff may apply for summary judgment pursuant to rule 292 of the Uniform Civil Procedure Rules 1999 (Qld)   (the UCPR) if the court is satisfied that:

2(a) the defendant has no real prospect of successful defending all or part of the plaintiff’s claim; and

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

A summary judgment application can only be filed after a Notice of Intention to Defend and Defence have been filed, with an affidavit deposing that the defendant has no real prospect of success.

Typically, the Plaintiff’s affidavit in support of the summary judgment application should refute each allegation contained in the Defence and proffer evidence to substantiate its claim. 

 

Summary Judgment for the Defendant

Similarly to a summary judgment application brought by the plaintiff, a defendant may apply for judgment if the court is satisfied, according to rule 293 of the UCPR, that:

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

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

Affidavit material would also be required to establish that the claim itself has no basis or is frivolous.

 

Service of the Application

Rule 296 of the UCPR,  sets out the requirements for service of the application.

The party applying for judgment must file and serve the application and a copy of each affidavit to be relied upon at least 8 business days before the hearing date.

If the respondent wishes to defend the application, they must file and serve on the applicant any affidavits they wish to rely on at least 4 business days prior to the hearing.

If the applicant wishes to reply to any of the respondent’s filed affidavits, these must be filed and served at least 2 business days prior to the hearing.

 

Costs on a successful summary judgment application

It is reasonable for an applicant in a successful summary judgment application to seek their costs on an indemnity basis, due to the unnecessary expenditure of legal costs caused by the other side’s groundless pleadings.

 

What to do?

Having an application made against you or your company may have far-reaching consequences if you ignore such an application.  These consequences could lead to a judgment against you or your company and where further costs and credit impairment will certainly occur.

Depending on your circumstances, it is vital that you prepare any material that may help your case and seek legal advice in preparation of the hearing.

If you find you have been served with a Summary Judgment Application and need advice, please call Melody Kassrawi of SLF Lawyers on (07) 3839 8011, or email on mkassrawi@slflawyers.com.au

 

 

[1] Jones v Stone [1894] AC 122 at 124.

[2] Deputy Commissioner of Taxation  v Salcedo [2005] 2 Qd R 232.