You may have heard the terms ‘summary judgment’, ‘summary dismissal’ or ‘struck out’ in respect of court proceedings before.  What do these terms mean and how are they relevant to you? Let’s look at the ins and outs of obtaining a summary disposal of court proceedings.

What is Summary Disposal of Court Proceedings?

The term ‘summary disposal’ refers to the number of ways a party can summarily terminate 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 court’s authority to grant summary disposal of proceedings can be found in the Uniform Civil Procedure Rules 2005 (‘UCPR’).  The courts have discretionary powers to:

  • Order a summary judgment (in favour of a plaintiff);
  • Order a summary dismissal (in favour of a defendant); and
  • Strike out pleadings.

The courts also have an inherent power to prevent the abuse of judicial processes.

What is a Summary Judgment?

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 the following factors:

  • There is evidence of facts which justify a claim for summary judgment.
  • There is a belief that the defendant has no defence to the claim (or part of the claim). If an amount of damages is yet to be determined, the court may order summary judgment in favour of the plaintiff, with damages to be assessed at a later time.
  • There is no issue to be tried (in circumstances where the defendant disputes the claim for summary judgment). The plaintiff must demonstrate that the defendant is relying on defence so obviously flawed that it cannot possibly succeed.  A court will not grant a summary judgment where there is a dispute as to the facts of the case.

A court will order a 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 Commenced by the Plaintiff is Frivolous or Vexatious  

Usually, people use these terms in conjunction.  ‘Frivolous’ has not been defined in the UCPR and is given its ordinary meaning:  “of little or no weight, worth or importance” or “lacking seriousness or sense”. The term ‘vexatious’ is more clearly defined and will include:

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

2. The Plaintiff Has Failed to Disclose a Reasonable Cause of Action

Once again, 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. Rather, a court is likely to grant the plaintiff leave to amend their claim in these circumstances. Similarly, a court will not dismiss a plaintiff’s claim that has ‘gaps’ if appropriate discovery in the later stages of court proceedings can fill those gaps.

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

An abuse of process is not clearly defined and can take many forms. 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;
  • Re-litigating issues which have been previously determined;
  • Litigating issues which should have been litigated in previous proceedings;
  • Destroying evidence

What is a Pleading?

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.

When Can a Pleading Be Struck Out?

An application to strike out a pleading is not based on the merits of a party’s case, but rather 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.  In most circumstances, the court will grant leave to amend the deficient pleading.  The courts have the power to strike out either the whole or any part of a pleading in particular circumstances.

1. The Pleading 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. The Pleading is Likely to Cause Prejudice, Delay or Embarrassment

The court will strike out pleadings or parts of 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. The Pleading is Considered To Be an Abuse of the Court Process

This has been discussed in some detail above concerning dismissal of proceedings.  The same principles apply in respect of striking out a pleading.

It is considered a good practice to give the opposing party an opportunity to amend their deficient pleading before applying to the court to strike out a pleading. This notice can have an impact on any question of costs that are raised with any subsequent applications.


Whether you are making a claim or defending one, LegalVision’s expert litigation team can help.  We can provide you with advice as to your prospects of success on a summary disposal application as well as give you step by step guidance through any appropriate application.  Give one of our dispute lawyers a call to discuss your options on 1300 544 755 or fill out the form on this page.

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