An application for summary judgment may be made by a Plaintiff or a Defendant.
The Uniform Civil Procedure Rules 1999 (Qld) (UCPR) provides at rules 292 that the Court may give summary judgment for the Plaintiff if it is satisfied that the Defendant has no real prospect of succeeding and there is no need for a trial. The primary question is whether there exists a real, as opposed to a fanciful, prospect of success.
Rule 293 of the UCPR provides that the Defendant may apply to Court for summary judgment against the Plaintiff if the Plaintiff has no real prospect of succeeding on all or part of the Plaintiff’s claim and there is no need for a trial.
There are many cases discussing rules 292 and 293 of the UCPR.
The following cases are each from the Queensland Court of Appeal and are authoritative on interlocutory applications for summary judgment.
If an application for summary judgment has been made against you, it is important to seek urgent legal advice, as a summary decision may be given by the Court without any trial. If judgment is entered, this is final relief and means that there won’t be a trial.
The Magistrates Court may give summary judgment in an amount of up to $150,000, plus interest and costs. The District Court has jurisdiction up to $750,000 and there is no limit to the jurisdiction of the Supreme Court.
To avoid a summary decision, you may be able to file affidavit evidence, setting out your arguments in detail or it might be that your statement of claim or defence needs to be amended to avoid summary relief. You may be able to show the Court that there is a need for a trial and that summary judgment should not be made against you.
If you prepared your Statement of Claim or Defence without a lawyer, it may assist to engage a litigation lawyer to amend your Statement of Claim or Defence to avoid judgment being made against you because the court will look at your court documents to see whether there is a valid claim or defence set out in those documents. If there is not, then there is a real risk you will have judgment entered against you.
Our firm has significant litigation experience in preparing affidavit material and seeking summary judgment from the Court as well as opposing applications for summary judgment.
Summary judgment is not an appropriate step to take in many court actions. Generally it should only be considered where there is a clear outcome of the matter that warrants avoiding a trial, for example, where enforcing the terms of a written contract. Where parties dispute what was said and the litigation revolves around that, then a summary judgment application may not be appropriate.
If a party applies for summary relief and doesn’t get it, the court will likely award costs against that party. If the other party is represented by lawyers, that can be an expensive outcome.
The other consideration in applying for summary relief is a tactical one. In Queensland courts they are decided largely on affidavit evidence (evidence in most Queensland court trials is heard by people giving evidence orally). It means a party has to set out in detail what their evidence is and so if it doesn’t work, that party has let the other know what their case is. In a trial situation, the other party generally won’t know what the evidence is of the other party until the trial starts.
If judgment has already been awarded against you, you should seek urgent legal advice. If you missed a Court hearing, you may be able to apply to Court to set aside the judgment if you have an arguable Defence. If you attended the hearing, you may be able to appeal that decision if the outcome was not in your favour.
If no Defence is filed by the Defendant, you don’t need to apply to Court for summary judgment, you can simply request a default judgment. We can assist with preparing the Court documents needed to obtain a default judgment if the Defendant hasn’t filed any Defence. Likewise, if default judgment has been entered against you because you didn’t file a defence, we can assist in such an application to the court.
It is essential you have experienced solicitors when seeking to obtain or oppose summary judgment in a Queensland Court or Federal Court. If you require assistance with a summary judgment application, our litigation and dispute resolution team will make sure your rights are represented competently and professionally.
Aitken Whyte Lawyers Brisbane are focused on results. Our solicitors can assist you with all commercial litigation matters. Call today to discuss your needs.
Brisbane
Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000
