Summary Disposal of Proceedings: An Explainer

Summary disposal proceedings are a tool which allow courts to avoid unnecessary trials. They are proceedings that occur prior to a formal court trial, where a judge may dismiss or provide judgement on the case based on its merits. Namely, they are to provide quick judgements on:

  • Cases without defence
  • For frivolous (unwinnable) or vexatious (hopeless and oppressive) cases
  • Cases where the plaintiff fails to follow court instructions

Each scenario has extensive legislation and case law providing guidelines to judges on when and how to provide summary disposal. Of note, the courts don’t favour summary disposals; everyone is entitled to their day in court. However, sometimes they are necessary.

Here we break these down, and how summary disposal differs from a summary strikeout.

Table of Contents

How does a summary disposal work?

A summary disposal of proceedings refers to the disposal of a proceeding where the plaintiff or defendant has no realistic prospect of success, or there is a failure to comply with court directions. They allow for proceedings to be concluded without a trial.

The process will involve an application by one of the parties via affidavit. Within this affidavit, they will include an argument as to why a disposal proceeding should occur.

State and Territory legislation govern summary disposals rather than federal. For example, in New South Wales, these appear in the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR‘).

Below we discuss the scenarios in which disposal will occur and their accompanying rules within the context of NSW courts. While the rules are generally consistent between the States and Territories, be aware that some differences will exist. Contact a lawyer if you are unsure of what State or Territory’s legislation will affect you or your business.

1. Summary judgement for a plaintiff

Under r 13.1 of the UCPR, a plaintiff may apply to the court to have a summary judgement made. In these scenarios, the plaintiff will send an affidavit to the court explaining why no defence exists to their claim, or that the only defence that does exist is to the damages.

For such an application to succeed, there cannot be any doubt as to the possibility of defence. The test for this comes from the case General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125, whereby the opponent’s case is so ‘obviously untenable it cannot succeed’.

A summary judgement allows the court to determine the damages and repercussions immediately and without trial.

2. Frivolous or vexatious

Also referred to summary dismissal, this is a tool for a defendant to have the proceedings disposed on the grounds that the claims are unwarranted. Appearing in r 13.4 of the UCPR, the grounds for disposal may fall under scenarios of unfounded claims. These may be that:

  • It is an abuse of the court process
  • It does not disclose a reasonable cause of action
  • Are frivolous, meaning the cause of action has no substance
  • Are vexatious, meaning the claim is hopeless and tends to cause the defendant unnecessary trouble, anxiety or expense

Much like with a summary judgement, a summary dismissal process begins via an affidavit, though from the defendant this time.

However, even more so than a summary judgement here the court must consider the presumption that applicants are entitled to the court’s processes. To dismiss an application is no small feat.

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3. Dismissal where a party fails to follow instructions

Where a party fails to follow court instructions, effectively wasting its time, the court may dismiss the case in favour of the opposing party. Under r 12.7, where either party fails to conduct proceedings with due despatch their arguments will be partially or wholly dismissed. Due despatch essentially means punctually (i.e. making deadlines set by the court).

The court will likely give warnings prior to any such action and, even then, still tried to avoid dismissing the case entirely without significant and consistent failure to meet deadlines.

Likewise, r 13.6 allows the court to dismiss proceedings where the plaintiff fails to show up to proceedings (having been given 5 days notice). Courts will follow this rule rather promptly, as it is unreasonable that any trial should proceed without a party being present.

Other rules it’s often confused with

It is easy to get summary disposal mixed up with several other options available to judges where challenges present themselves prior to trial. Below we briefly explain these other options, and how they differentiate from summary disposal.

Strikeouts

A strikeout (r 14.28 UCPR) refers to the strikeout (removal) of the whole or part of a pleading. Compared to summary disposal, a strikeout doesn’t mean the entire case is disposed of. Instead, it will be for a certain piece of the case. It may be for a piece of evidence, an argument or an application for concurrent proceedings. Much like the summary disposal, however, the strikeout will be for items considered irrelevant, prejudicial, embarrassing or abuse of the court’s processes.

Default judgements

Often confused with a summary judgement, default judgements will occur by virtue of the court rather than as ordered by it. The rules dictating these are within r 16.3 of the UCPR. These will occur when a defence fails to be raised in time or the defence fails to be verified. They must be applied for by the plaintiff and may be overturned (but require extensive evidence and reasoning by the defence to be).

Final thoughts

Ultimately, it cannot be understated enough that the courts will seek to avoid summary disposals wherever possible. It is a process that, while sometimes necessary, does go against the rule of law. Nonetheless, hopefully, this article has provided you with some insight into how and why this process exists. To avoid being privy to it, we recommend that you always have a lawyer review your case before presenting it to court.

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