Concluding Proceedings

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Some proceedings are concluded through summary disposal procedures as opposed to trials or settlements. Summary disposal procedures is where a party applies to the court to dispose of the claim summarily (there are a number of ways) because of a deficiency in the opposing party's case. Summary disposal procedures and their relevant principles include:

  • Default judgment - when the defendant does not enter an appearance/fail to back it up with an affidavit/the defence was struck out (:r 16.2 UCPR), a plaintiff can ask for a default judgment: r 16.3.
    • Default judgments may be set aside: r 36.16 (a) and (b).
      • Applicant would need to explain the reason for the default and show that there is a reasonable defence to the claim.
  • Summary judgment - summary judgment for the plaintiff when the defendant does not reveal a valid defence to the claim: r 13.1.
    • Application for summary judgment must include 'evidence of belief' that the defendant has no valid defence: r 13.1.
    • Summary judgments to be given with extreme caution, only when it is absolutely certain and clear that there are no triable issues: Cosmos E-C Commerce v Bidwell:
  • Summary dismissal - summary judgment for the defendant when statement of claim is either:
    1. Frivolous or vexatious,
    2. Has no reasonable chance of success; or
    3. Is an abuse of process.
    • Suing someone in order to compel a closely related entity to pay compensation is not an abuse of process: Van Der Lee v NSW.
    • Summary dismissal is only given in extraordinary cases where proceeding would clearly inflict unnecessary injustice upon the opposite party: Fawcett v Cannon.
  • Dismissal due to 'lack of due despatch - judgment to either party on the basis that opponent is not abiding by deadlines: r 12.7.

When proceedings have been summarily dismissed in one way or another (lack of due dispatch, summary disposal etc) before a hearing on the merits of the claim, the plaintiff is not usually prevented from instituting fresh proceedings: CPA, s 91 (1).

  • However, if the court summarily dismissed the proceedings based on its merits, then the plaintiff will be prevented from instituting fresh proceedings.

This topic is within Resolving Civil Disputes.

Contents

Required Reading

Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters, [14.10]-[14.200].

Introduction

[1] This article deals with to ways in which proceedings are brought to a close. There are a few ways for proceedings to be concluded:

  • Through a trial (once all appeal avenues are exhausted).
  • Through a settlement.
  • Through summary disposal procedures (below).
  • Through the plaintiff discontinuing the litigation.

Summary Disposal Procedures

[2] Summary disposal are procedures used to conclude proceedings before a trial even started. Summary disposal procedures include:

  • Application to strike out a pleadings
    • These can be for (1) no reasonable cause of action or defence, (2) tendency to cause prejudice, embarrassment or delay to proceedings, or (3) an other abuse of process. They are not discussed here.
  • Default judgments
  • Summary judgments
  • Summary dismissal
  • Dismissal due to lack of due despatch

Default Judgments

[3] A default judgment is where, before a trial even begins, the court grants the award sought by the plaintiff simply because of the defendant's default. Default usually occurs when a defendant fails to enter an appearance (file a defence) within the specified time frame (28 days).[4]

  • It is an judgment based on court rules, which serves as an incentive for defendants to enter an appearance.
  • Default judgments are dealt with in Part 16 of the UCPR.
  • Default judgments can only be sought where the originating process was a statement of claim.

If the defendant is in default, the plaintiff can apply for a default judgment. The procedures for default judgments differ slightly according to what type of claim it is, but usually require an accompanying affidavit and a proof of service of the originating process.

  • The relevant claim types for this course are liquidated claims (where amount claimed is known) and unliquidated claims (where an assessment by the court is required). They are dealt with in r 16.6 and r 16.7 respectively.

The default judgment is treated as if it is a normal judgment given after a trial. There is no 'appeal' possible, but the defendant can apply to set aside the default judgment.

  • They would need to explain the reason for the default and show that there is a reasonable defence to the claim.
  • The court has the power to set aside the default judgment under UCPR r 36.16 (a) and (b).

Setting aside a default judgment was discussed in Borowiak v Hobbs:[5]

  • Facts: the parties had a car accident, with the plaintiff being at fault. The defendant sued the plaintiff, but no defence was filed, so a default judgment was entered. The plaintiff (represented by his insurer) applied to set aside the default judgment.
  • Held: setting aside a default judgment is a discretionary power and each case is judged on its own facts - there aren't many rigid principles.
    • The court will consider reasons for the delay, whether there is a bona fide defence that can be made, and then contrast that against the other party's interests.
    • In the present case, it took months for the plaintiff to actually do something about the claim - it was concentrating on internal procedures of priority instead.
    • The plaintiff showed complete disregard to the time limits imposed by the court, and therefore doesn't deserve having the application set aside. To do so would be an injustice and would run against the overriding purpose.
    • The application was dismissed.

Summary Judgments

[6] A summary judgment is where, before the trial even begins, the court grants the award sought by the plaintiff because the defence filed by the defendant does not reveal a valid defence to the plaintiff's claim. In basic terms, it occurs where the defence was so weak that the court ignores it altogether.

  • A summary judgment may also be entered for a part of the claim, if that part was not properly defended by the defendant (or not addressed at all in the defence).
  • Summary judgments should only be entered when it is absolutely clear that there is no issue to be tried.
  • Summary judgments are dealt with in Part 13 of the UCPR.

The procedure of a summary judgment involves the plaintiff (or suitable persons) making a verifying affidavit wherein they express the belief that the defendant does not have a valid defence. Like default judgments, summary judgments can ultimately be set aside under UCPR rr 36.16 or 36.15.

Summary judgments were discussed in Cosmos E-C Commerce v Bidwell:

  • Previous authorities repeatedly state that the discretion to enter a summary judgment should be exercised with extreme caution. It should only be exercised when it is absolutely certain and clear that there are no triable issues.
  • The 'evidence of belief' does not need to be express - it can be inferred from the affidavit.

Summary Dismissal

[7] A summary dismissal is where, before the trial even begins, the court dismisses the claim of the plaintiff on the basis that it is either (1) frivolous or vexatious, (2) has no reasonable chance of success, or (3) that it is an abuse of process. It can be seen as the opposite of a summary judgment - ie, a summary judgment from the defendant's perspective.

  • Summary dismissals are dealt with in r 13.4 of the UCPR (reflecting that they are another form of a summary judgment).

Summary dismissals were discussed in Van Der Lee v NSW:[8]

  • Facts: NSW was sued for a number of accidents in Therdbo. They cross-claimed against another company and the appellant (who were former officers of that company) to recover damages. The appellant sought summary dismissal on the basis that the cross-claim was an abuse of process - it was intended as a tool to compel the other company to make a contribution.
  • Held: first of all, the court was not satisfied that the predominant reason of the claim against the appellant was to compel the other company to contribute. Secondly, even if it was, it does not constitute an abuse of process - the entities were closely enough related so that it is perfectly allowed to sue them in order to make the company pay.

And also in Fawcett v Cannon:[9]

  • Facts: after a fireworks accident, the victim sued a number of parties including the appellants in this case, who claimed they had nothing to do with his and wanted dismissal.
  • Held: summary dismissal is only given in extraordinary cases where proceeding would constitute an improper use of the machinery of the court or would clearly inflict unnecessary injustice upon the opposite party.

Lack of Due Despatch

[10] UCPR r 12.7 allows the court to entirely dismiss the proceedings based on the lack of due despatch (eg, not complying with deadlines) by either party.

  • This power is applied with the overriding purpose in mind.
  • Either party can apply via a notice of motion to the court to dismiss litigation due to the opposing party's due despatch.

Dismissal of proceedings due to lack of due despatch was discussed in Phornpisutikul v Mileto:[11]

  • Facts: the defendant applied for dismissal because the plaintiff failed to submit an affidavit and other documents for over a year. The case was ongoing from before the CPA was established, the plaintiff was Thai, and most of the evidence had to be gathered from Thailand.
  • Held: the plaintiff has a month to hand in the affidavit, otherwise the case is dismissed. The fact that the CPA was not in force when the case started, and the fact that evidence had to be gathered from Thailand, made the court reluctant to dismiss the case straight away.

When proceedings have been summarily dismissed in one way or another (lack of due dispatch, summary disposal etc) before a hearing on the merits of the claim, the plaintiff is not usually prevented from instituting fresh proceedings: CPA, s 91 (1).

  • However, if the court summarily dismissed the proceedings based on its merits, then the plaintiff will be prevented from instituting fresh proceedings.

End

This is the end of this topic. Click here to go back to the main subject page for Resolving Civil Disputes.

References

BKL refers to Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters.

FDR refers to Michael Legg (ed), The Future of Dispute Resolution (2013) LexisNexis.

  1. BKL, p. 847.
  2. BKL, p. 847.
  3. BKL, p. 848-51.
  4. Default can also occur if the defence filed a defence but didn't file an affidavit verifying it, or if the defence was struck out by the court: r 16.2.
  5. [2006] NSWSC 1089.
  6. BKL, p. 854.
  7. BKL, 861.
  8. [2002] NSWCA 286.
  9. [2007] NSWSC 1267.
  10. BKL, p. 867.
  11. [2006] NSWSC 57.
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