Rose Litigation Lawyers recently acted for a plaintiff in County Court of Victoria proceedings and was successful in obtaining orders for summary judgment in a sum exceeding $880,000, as well as an order that the Defendant pay our Client’s costs on the indemnity basis and fixed without the need for taxation, together with related orders for return to the plaintiff of certain related property.
Parties in proceedings before the Supreme and County Courts of Victoria are able to apply for summary judgment at any time in their proceedings and either pursuant to:
- in the first instance, the Supreme Court (General Civil Procedure) Rules 2015 (Vic) or County Court Civil Procedure Rules 2018 (Vic);[1] or
- alternatively, the Civil Procedure Act 2010 (Vic).[2]
The test in either case is whether the respondent to the application for summary judgment has a ‘real’ as opposed to ‘fanciful’ chance of success.[3] The Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [4] said further that:
(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
(c) it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings failed to disclose a reasonable cause of action (and the defect cannot be cured by amendments) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[5]
Where the two entitlements to summary judgment differ is that the entitlement under the Civil Procedure Act 2010 (Vic) can arise without application from a party and can instead be granted on the Court’s own motion, if the Court is “satisfied that it is desirable to summarily dispose of the civil proceeding”. The Civil Procedure Act 2010 (Cth), gives no examples of the types of proceedings which will satisfy this additional requirement, but the Explanatory Memorandum to the Civil Procedure Bill 2010 (Vic) is helpful in this respect and, relevantly says:
The policy behind Pt 4.4 of the Civil Procedure Act 2010 [as to Summary Judgment] is to enable the disposition of unmeritorious claims and defences so as to save time, costs and the resources of the courts.
This additional flexibility in the Civil Procedure Act 2010 (Vic) allows, for example, summary disposal on the back of another hearing and without the need for formal summons. One such occasion which might typically arise is upon the conclusion of an injunction hearing where the plaintiff party will already have deposed to its evidence, have flushed out some idea of the defendant’s defence, may have already come before the Court on a number of prior occasions (as is the case often with freezing order hearings) and could say to the Court that it would in all the circumstances be unreasonable and unjust to put the plaintiff to a further hearing having regard to the lack of merit in their opponent’s defence.
Parties should also be mindful of ss 65C(1), 65C(2)(c) and 65C(2)(d) of the Civil Procedure Act 2010 (Vic), which permit the Court to make extraordinary costs orders, including for costs to be paid on the indemnity basis and, fixed without the need for taxation (i.e. without the need for costs assessment). The matter of principal importance in determining whether such an order should be made is whether the making of the order would be appropriate to further the overarching purpose of the Civil Procedure Act 2010 (Vic) and the rules of Court in relation to civil proceedings, which, relevantly, is to:
facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[6]
In undertaking this enquiry, the Court is specifically invited to consider the matters in s 65C(2A) and, importantly, subsection 65C(2A)(h), which deals with whether the other party “has been uncooperative or delayed the proceeding”.[7] This will often be a relevant circumstance in an application for summary judgment.
[1] Supreme Court (General Civil Procedure) Rules 2015 (Vic) Order 22; County Court Civil Procedure Rules 2018 (Vic) Order 22.
[2] Civil Procedure Act 2010 (Vic) ss 61 and 63.
[3] A similar test is adopted by the state courts in Queensland (see Deputy Commissioner of Taxation v Salcedo)
[4] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 at [35].
[5] Ibid. See also Stoyanova v Equity-One Mortgage Fund Ltd [2016] VSC 414; Optquest Pty Ltd v Marchesi [2011] VSC 428.
[6] Civil Procedure Act 2010 (Vic) s 7.
[7] Ibid s 65C(2A)(h).