Default by Plaintiff or Applicant / Summary Judgement

Question 1

Which rule deals with default of plaintiff or applicant?

Answer 1

Rule 280 UCPR

Question 2

When can a defendant or respondent apply for an order of the court seeking dismissal of the proceeding for want of prosecution?

Answer 2

When the plaintiff is required to take a step as outlined in the rules, or comply with an order of the court within a stated time AND they do not do what is required of them.

Rule 280 (1)

Question 3

Other than dismissing the proceeding, what can the court do?

Answer 3

The court can dismiss OR make any other order it considers appropriate.

Rule 280 (2)

Question 4

If an order is made dismissing the proceeding for want of prosecution, can this order be set aside?

Answer 4

Only on appeal OR if the parties agree to it being set aside. (3)

OR if the court considers it appropriate to do so without the need for an appeal. (4)

Rule 280 (3)
Rule 280 (4)

Question 5

Is there a requirement to show prejudice to the defendant for application to dismiss due to default of the plaintiff or applicant?

Answer 5

No the test us lower, no need to show prejudice.

Cooper v Hopgood Ganim

Question 6

What are the pre-conditions to invoke s280 dismissal?

Answer 6

1. Only against plaintiffs/ applicants
2. Plaintiff required to take step but does not OR fails to comply with an order in a specified time.
3. Defendant needs to apply to court for dismissal.

Question 7

What are the matters to be considered by the court when applying discretion to dismiss?

Answer 7

1. How long ago subject events in litigation occurred
2. How long ago litigation commenced
3. Any disobedience of court orders/ directions.
4. Is the matter characterised by long periods of delay.
5. How far has the litigation progressed?
6. Does the plaintiff have good prospects?
7. Is the delay due to the plaintiff/ defendant or both?
8. Is the delay due to lawyers being dilatory?
9. Is the delay due to impecuniosity of either party?
10. Is there a satisfactory explanation for the delay?
11. Would striking it out conclude all litigation between the parties?
12. Does delay cause prejudice, i.e inability to have a fair trial?

Tyler v Custom Credit Corporation Ltd

Question 8

What is the rule in the case of Tyler v Custom Credit Corporation Ltd?

Answer 8

The court has inherent jurisdiction to dismiss proceedings if there is a default by plaintiff, this is not fettered by rigid rules, BUT should take into account all relevant circumstances.

Tyler 12 considerations.

Question 9

What is the rationale in the case of Tyler v Custom Credit Corporation Ltd?

Answer 9

Unnecessary delay has the tedency to bring the legal system into disrepute and decreases the chace of a fair and just result. Members of the community are entitled to get on with their lives without the threat of continuing litigation.

Question 10

Which rules in the UCPR deal with Summary Judgement?

Answer 10

Rule 292 - Summary Judgement for Plaintiff
Rule 293 - Summary Judgement for Defendant

Question 11

When can a plaintiff apply for summary judgement?

Answer 11

Any time AFTER the defedant files a notice of intention to defend.

Rule 292 (1)

Question 12

When can a defendant file an application for summary judgement?

Answer 12

Any time AFTER they have filed a notice of intention to defend.

Rule 293 (1)

Question 13

What must the court be satisfied of before it grants summary judgement?

Answer 13

a. There is no real prospects of the defendant/ plaintiff successfully defending; AND

b. there is no need for a trial of the claim OR part of the claim (NOT IN CTH legislation, clear contrast).

Rule 292 (2)
Rule 293 (2)

Question 14

Explain how no real prospects can be summarised.

Answer 14

• The words ‘no real prospect of succeeding’ speak for themselves.
• Ordinarily a party is not to be denied the opportunity to place his or her case before the court.
• Proceedings will be determined summarily only in the “clearest of cases”.
• The discretion to give summary judgement does not arise merely because the court concludes that success is improbable
• The word ‘real’ should be distinguished from ‘fanciful’. It thus directs the court to the need to see whether there is a ‘realistic’ as opposed to a fanciful prospect of success.
• A high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.

Shaw v Deputy Commissioner of Taxation; Rablin v Deputy Commioner of Taxation

Question 15

If a proper amendment can improve the position of the proceedings, should the court still issue summary judgement?

Answer 15

No

Chen v ANZ

Question 16

What is the rule and the rationale in the cases of Shaw v Deputy Commissioner of Taxation; Rablin v Deputy Commissioner of Taxation?

Answer 16

Rule: Both limbs of 292 need to be satisfied.

Rationale: ‘under the guise of achieving expeditious finality, a party should not be deprived of an opportunity for the trial of their case; interests of justice usually requires issues to be investigated at trial.

Question 17

Who bears the legal burden of proving there is no real question to be tried in summary judgement application?

Answer 17

Defendant.

Hepburn v McLaughlins Nominee Mortgage