1. Continuing Professional Development Summary Judgment Tass Liveris 16 January 2014

2. Introduction Summary judgment is a mechanism whereby parties can obtain judgment without trial, often at relatively early stages of proceedings. The purpose of the procedure is to prevent parties from maintaining unmeritorious claims for some ulterior reason. In theory a proper exercise of the discretion will obviate the costs and delays involved in litigation, which in turn will enhance efficiency of cases in the court system and the delivery of justice.

3. Introduction The various rules of courts differ, however in practice courts have continued to implement the very high common law threshold for summary judgment, centred around the discretion being exercised with exceptional caution, cases being clearly untenable and manifestly groundless.

4. Rules of Court – Northern Territory Northern Territory: The plaintiff may at any time apply to the court for judgment against the defendant on the ground that the defendant has no defence (Rule 22.02, Supreme Court Rules; Rule 27.01 Local Court Rules).

5. Rules of Court – Northern Territory The court may give judgment for the defendant against the plaintiff if the defendant has a good defence on the merits. (Rule 23.03, Supreme Court Rules; Rule 27.06, Local Court Rules).

6. Rules of Court – Northern Territory Work Health Court: A party may apply for summary judgment on grounds including the other party has “no real defence”, the defence discloses a “good defence on the merits”, the other party has “no real cause of action” and the proceeding is “frivolous, vexatious or an abuse of process” (Rule 21.02).

7. Policy A key objective of the legal system is to facilitate the just, efficient and cost effective resolution of disputes. The great challenge for the legal system is to temper the interests of efficiency with the interests of justice so that a litigant’s right to access the court is not unfairly denied.

8. Policy Summary judgment is intended to save the parties and the court the time and expense associated with the continuation of unmeritorious cases. The exercise of summary judgment for either party has serious consequences and as such is a power which is not exercised lightly.

9. Northern Territory The power to order summary judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried (Fancourt –v- Mercantile Credits Ltd (1983) 154 CLR 87 at 99). Summary judgment should never be entered unless there can be no reasonable doubt that a plaintiff is entitled to judgment (Sportsbet Pty Ltd –v- Moraitis [2010] NTSC 24 at [11]).

10. Northern Territory In an application the plaintiff must prove there is no question to be tried. If there are relevant facts in dispute or a difficult point of law to be decided the application cannot succeed. If the defendant has a fairly arguable defence along these lines then the defendant is entitled to a trial according to the normal rights of every defendant to defend the action (Heller Financial Services Ltd –v- Solczanuk [1989] NTSC 36 at [9]).

11. Northern Territory The application must be supported by an affidavit verifying the facts that the claim is based on and stating the deponent’s belief there is no defence to the claim except as to the amount claimed (SCR 22.03; LCR 27.02). The court is permitted to admit evidence based on information and belief (SCR22.03(3); LCR 27.02(3)).

12. Northern Territory If the plaintiff establishes it is entitled to judgment, the court will enter judgment unless the defendant shows cause. The court will normally require an affidavit by or on behalf of the defendant before a defendant will be granted leave to defend (Sportsbet (supra) at [12]). The defendant’s evidence is required to specifically meet the plaintiff’s claim and the facts alleged in the plaintiff’s affidavits.

13. Northern Territory The defendant’s evidence is also required to state clearly and concisely what the defence is and the facts it relies on to establish its defence (Heller (supra) at [22]). The burden on the defendant is to satisfy the court that a question ought to be tried or that for some other reason there ought to be a trial of the claim (SCR 22.06(1)(b)).

14. Northern Territory For a defendant to establish there is an issue to be tried it must show a plausible, or arguably good defence. The complexity of the legal argument may not impede the court granting summary judgment if the plaintiff is able to clearly show there is no defence (Civil and Civic Pty Ltd –v- Pioneer Concrete (NT) Pty Ltd (1991) 1 NTLR 43).

15. Northern Territory In Civil and Civic Pty Ltd, without overriding the basic principle that where there is a real question to be tried leave to defend should be given, Asche CJ observed: “I do not think the mere complexity or apparent complexity of the argument should automatically shut out the plaintiff for immediate relief...

16. Northern Territory Extensive arguments on points of law may well serve to encourage ingenious counsel to adopt what one would have to call a “cuttlefish” defence. That sagacious mollusc endeavours to confuse and defeat its enemies by pouring forth clouds of inky blackness when attacked. So, resort to a welter of authorities and referral to esoteric points of law might be employed to persuade an overworked judge that the answer is too hard to find on summary proceedings; and the defence thereby gain a much desired breathing space; at the expense of the plaintiff.”.

17. Northern Territory The court may, by order, allow the plaintiff to rely on an affidavit in reply (SCR 22.05). The court may order the deponent of an affidavit to attend and be examined or cross- examined or to produce any papers, books or documents (SCR 22.07).

18. Summary Judgment for Defendant The principles relevant to applications by defendants have been expressed slightly differently by courts, but result in effective consideration of whether there is a real or serious question to be tried.

19. Lowering the Threshold Federal Court: A party may apply for an order that judgment be given against another party because the applicant has “no reasonable prospect” of successfully prosecuting or defending the proceeding, the proceeding is frivolous or vexatious, no reasonable cause of action is disclosed, the proceeding is an abuse of the process, the respondent has no reasonable prospect of successfully defending the proceeding (Rule 26.01, Federal Court Rules; s.31A, Federal Court of Australia Act).

20. Lowering the Threshold Importantly, s.31A(3) of the Federal Court Act provides that a proceeding need not be “hopeless” or “bound to fail” for it to have no reasonable prospect of success. Section 31A was inserted into the Federal Court Act in 2005 by the Migration Litigation Reform Act 2005 and was intended to lower the threshold for summary judgment.

21. Lowering the Threshold The policy behind the federal reform was to relax the high common law tests and to strengthen, “... the power of the courts to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases” (Second Reading Speech, Migration Litigation Reform Act 2005).

22. Lowering the Threshold In 2010 Victoria moved away from the “no defence” test to a “no real prospect of success” test: see Part 4.4, Civil Procedure Act 2010 (Vic.). The reforms were intended to, “liberalise the test for summary disposal of unmeritorious claims and defences... [to] help courts to remove at an early stage cases where a party has no real prospects of success.” (Explanatory Memorandum, Civil Procedure Bill 2010).

23. Lowering the Threshold By the Uniform Civil Procedure Rules 1999, Queensland introduced a test of a “no real prospect of succeeding”. In Queensland University of Technology –v- Project Constructions (Aust) Pty Ltd (In Liq) [2003] 1 Qd R 259 the Court of Appeal held,

24. Lowering the Threshold “That level of satisfaction may not require the meeting of as high a test as that posited by Barwick CJ in General Steel: “that the case for the plaintiff is so clearly untenable that it cannot possibly succeed”. The more appropriate inquiry is in terms of the Rule itself: that is whether there exists a real, as opposed to a fanciful, prospect of success. However, it remains, without doubt, the case that “Great 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.”

25. Practice It can be seen that in practice courts have remained very reluctant to relax the application of the summary judgment principles. In Boston Commercial Services Pty Ltd –v- GE Capital Finance Australasia Pty Ltd [2006] FCA 1352, Rares J said of s.31A:

26. Practice s.31A requires the moving party to satisfy the court that there is no reasonable prospect of the other party successfully pursuing their claim or defence. Experience shows that there are cases which appear to be almost bound to fail yet they succeed. Where there is a real issue of fact to be decided and possibly where there is a real issue of law of a similar kind, it is obviously appropriate that the matter goes to trial.

27. Practice The court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. Unless only one conclusion can be said to be reasonable, the moving party will not have discharged its onus to enliven the discretion to authorise a summary termination of the proceedings which s 31A envisages.

28. Practice In Lysagh Building Solutions Pty Ltd –v- Blanalko Pty Ltd [2013] VSCA 158 the Court of Appeal held the test is to some degree more liberal than the “hopeless” or “bound to fail” common law position, but at the same time said it must be borne in mind that the power should be exercised with caution and not unless it is clear that there is no real question to be tried (cf Fancourt –v- Mercantile Credits Ltd (1983) 154 CLR 87 at 99).

29. Practice So although the court has recognised parliament’s intention to liberalise the test it appears unlikely that these attempts will make any material difference to the determination of applications in practice.

30. Practice The cases referred to show that the court will inevitably prioritise interests of justice and the basic rights of litigants to access the court over interests of efficiency. Instead, courts seem to have much preferred to work towards increasing efficiency (and justice) through regulating their own processes.

31. Practice Today, litigants are obliged to comply with extensive pre-action requirements (see NT Supreme Court Practice Direction 6 of 2009 – Trial Civil Procedure Reforms; Civil Dispute Resolution Act 2011 (Cth.)). These requirements are intended to ensure that parties litigate only after genuine steps have been taken to resolve disputes and that cases brought before the court are efficiently managed.

32. Practice If pre-action requirements are complied with, however the test is expressed it is difficult to see on what basis a party might apply for summary judgment, let alone successfully.

33. Conclusions However parliament expresses the threshold test for summary judgment, the likely concerns about relaxing the standards to be applied include: – Potentially meritorious claims or defences being dismissed without being properly tested. – Unrepresented litigants are those most likely to fall within the parameters of the discretion.

34. Conclusions – The time and costs involved with summary judgment hearings and the right of appeal may in effect be counter-productive to the aim of enhancing efficiency and justice. In modern practice pre-action requirements in the Federal and Supreme Courts ought to ensure the summary judgment provisions are rarely if ever called upon.

35. Conclusions The situation is not quite the same in the Local, Small Claims and Work Health Courts. However parliament attempts to influence the workload of the court by rewriting the rules it is difficult to see the court using summary judgment as a routine means of achieving efficiency in the system.