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If you are going through court proceedings, you may have heard the terms ‘summary judgment’, ‘summary dismissal’ or ‘struck out’ before. However, it is easy to get confused about what these terms actually mean and how are they relevant to you. This article explains what summary disposal, judgement, and dismissal mean and how they might affect your court proceedings.

What is Summary Disposal of Court Proceedings?

The term ‘summary disposal’ refers to the number of ways that a party can terminate court proceedings in their early stages. It occurs in circumstances where either the plaintiff or the defendant have no prospects of success. It sounds like common sense, but when will a court ‘throw out’ a case?

In New South Wales, the courts have powers to:

  • order a summary judgment (in favour of a plaintiff);
  • order a summary dismissal (in favour of a defendant); or
  • strikeout pleadings.

What is Summary Judgement?

A plaintiff may seek summary judgment against a defendant in circumstances where the defendant has no prospects of success.  Before a court orders a summary judgment, the plaintiff must establish that there is:

  • evidence of facts which justify a claim for summary judgment;
  • a belief that the defendant has no defence to the claim; or
  • no issue to be tried – the defendant is relying on a defence that is so flawed it cannot possibly succeed.

A court will order summary judgment in very limited circumstances. The court needs to be clearly satisfied that it has all the information necessary to reach a definite and certain conclusion.

What is Summary Dismissal?

In limited circumstances, a defendant can make an application for summary dismissal of a plaintiff’s claim.  If successful, the plaintiff’s claim will be ‘thrown out’ and the proceedings will come to an end. There are three bases on which a defendant can make its application for summary dismissal:

1. The Proceedings are Frivolous or Vexatious

The defendant will have to argue that the proceedings commenced by the plaintiff fall into these categories.  ‘Frivolous’ means that the proceedings are “of little or no weight, worth or importance” or “lacking seriousness or sense”. The term ‘vexatious’ includes proceedings:

  • commenced, or conducted in a way, to harass or annoy, cause delay or detriment, or for any other wrongful purpose;
  • commenced without reasonable ground; or
  • that are considered to be an abuse of process.

2. The Plaintiff Hasn’t Disclosed a Reasonable Cause of Action

Here, the court must be satisfied that the plaintiff’s claim is so obviously flawed that it cannot possibly succeed. It is not enough that the plaintiff has drafted a claim poorly. Similarly, a court will not dismiss a plaintiff’s claim that has ‘gaps’ if the discovery of evidence in the later stages of court proceedings can fill those gaps.

3. The Plaintiff’s Proceedings Are an Abuse of Process

Examples of abuse of process include, but are not limited to:

  • commencing proceedings for an improper purpose, for instance, to induce a settlement in other proceedings;
  • commencing proceedings in different courts concerning the same subject matter;
  • taking matters to court that have been previously determined; or
  • destroying evidence.

When Can a Pleading Be Struck Out?

A pleading is a term used for certain types of court documents which a party uses as a formal statement of the cause of action or defence. Documents classed as a pleading include a:

  • statement of claim;
  • summons;
  • cross-claim; or
  • defence.

An application to strike out a pleading is not based on the merits of a party’s case, but on the form of the pleading.  For that reason, it is unlikely that a court will dismiss proceedings in their entirety. Rather, the particular pleading, or part thereof, is struck out. There a number of reasons why a pleading might be dismissed:

1. It Fails to Disclose a Reasonable Cause of Action or Defence

If a party can prove all of their allegations of fact, but those facts do not establish the essential criteria for a particular cause of action or defence, the court will strike out the pleading.

2. It is Likely to Cause Prejudice, Delay or Embarrassment

The court will strike out pleadings if the opposing party cannot adequately respond to them because they contain imprecise or vague allegations. Pleadings that contain allegations which the court considers to be unnecessary, irrelevant or indecent will also be struck out.

3. It is Considered To Be an Abuse of the Court Process

It is considered good practice to give the opposing party an opportunity to amend their deficient pleading before applying to the court to strike out a pleading. However, as discussed above, if a pleading is likely to be an abuse of the court process, it will be struck out.

Key Takeaways

There are key differences between summary disposal, judgement, and dismissal. If you are undertaking a court case, it is important to be fully aware of each of their meaning. If you have any more questions regarding your court case or a potential upcoming legal proceeding, contact LegalVision’s litigation lawyers on 1300 544 755 or fill out the form on this page.


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