AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |
Back to Blog
Summary judgment vs motion to dismiss4/12/2024 Other ulterior purpose or which lack reasonable grounds”: B Cairns, Australian Civil Procedure, 11th edn, Thomson Reuters, Australia, 2016 at. Vexatious proceedings have also been described as “proceedings intended to harass or annoy, cause delay or … taken for some Or manifestly groundless as to be utterly hopeless. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they It follows that the court examines the evidence, not for the purpose of making findings of fact,īut only to determine whether a triable issue is disclosed: Wickstead v Browne (1992) 30 NSWLR 1 at 9. The court will determine questions of law on such applications if satisfied that the point is clear: Silverton Ltd v Harvey 1 NSWLR 659 at 665. Untenable that it cannot possibly succeed: General Steel Industries v Commissioner for Railways (NSW), above, at 130. Summary disposal is not limited to cases where argument is unnecessary to show the futility of the claim or defence, and argument,Įven of an extensive kind, may be necessary to demonstrate that the case of the plaintiff (or of the defendant) is so clearly 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 NSWCA 81 at –. “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. The test has been variously expressed, including That test is that “the jurisdiction summarily to terminate an action is to be sparingly employedĪnd is not to be used except in a clear case where the court is satisfied that it has the requisite material and the necessaryĪssistance from the parties to reach a definite and certain conclusion”. In practice, the test applied to summary judgment applications by plaintiffs is the same as that applied to summary dismissalĪpplications by defendants. There is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99. The power to order summary judgment should be exercised with great care, and not unless it is clear that 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 NSWR 515. Spellson v George (1992) 26 NSWLR 666 at 678–679 per Young AJA, with whom Handley JA and Hope AJA agreed. The plaintiff must show that any defence intended to be relied on is untenable and cannot possibly succeed. Judgment, but also with the costs of the proceedings so far. 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 The subject of the proceedings remains to be determined, the court may give judgment for damages to be assessed: r 13.1(2). Where the plaintiff’s entitlement to judgment is clearly established, but the amount of damages or the value of the goods No such restriction exists under the UCPR. The rules of the various courts formerly provided that applications for summary judgment were not available in respect ofĬlaims for fraud, defamation, malicious prosecution or false imprisonment. If the claim for summary judgment is disputed, to show that there is no real issue to be tried. Thereof, or except as to the amount of damages, and To establish the facts justifying the claim to relief, andįrom the plaintiff or some responsible person that in his or her belief, the defendant has no defence to the claim or part
0 Comments
Read More
Leave a Reply. |