12 Disposition without Trial

03 verifying facts on which claim is based stating

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by summons supported by an affidavit: r 22.03 verifying facts on which claim is based; & stating that in the belief of the deponent there is no defence, or no defence except as to amount claimed. Defendant may show cause against the application by affidavit: r 22.04
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Summary Judgment for Defendant r 23.03 On application by a defendant who has filed an appearance, the Court at any time may give judgment for that defendant against the plaintiff if the defendant has a good defence on the merits.
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Cubillo v Cth (1999) a case must be very clear to warrant summary dismissal court needs to exercise its jurisdiction with great care & be satisfied that there is no question to be tried if there is a question to be tried, there should be no summary judgment
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Summary Judgment under the Civil Procedure Act 2010 63 Summary judgment if no real prospect of success (1) Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success. (2) A court may give summary judgment in any civil proceeding under subsection (1) (a) on the application of a plaintiff in a civil proceeding; (b) on the application of a defendant in a civil proceeding; (c) on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.
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Civil Procedure Act 2010 The test of ‘no real prospect of success’ may in some circumstances extend to cases not regarded as sufficiently hopeless to warrant striking out under the Rules English Court of Appeal in Swain v Hillman [2001] 1 All ER 91 considered a similar rule of court. Lord Woolf MR said at p92: “The words ‘no real prospect of succeeding’ do not need any amplification, they speak for themselves. The word ‘real’ distinguishes fanciful prospects of success or ... They direct the Court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.” The power should be exercised in accordance with the overarching purpose of the Civil Procedure Act. 17
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Summary Judgment under the Civil Procedure Act 2010 Section 64 Court may allow a matter to proceed to trial … a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because— (a) it is not in the interests of justice to do so; or (b) the dispute is of such a nature that only a full hearing on the merits is appropriate.
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Summary Judgment under the Civil Procedure Act 2010 The High Court recently addressed the Federal Court equivalent, which are broadly analogous provisions, in Spencer v The Commonwealth [2010] HCA 28.
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