12 Disposition without Trial

French cj and gummow j emphasised that powers of this

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French CJ and Gummow J emphasised that powers of this kind must be exercised with caution: “The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process.”
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Judgment: Abuse of Process Inherent jurisdiction of court to strike all or part of party’s proceedings or to stay proceedings Manifest unfairness to a party to litigation Bring administration of justice into disrepute See Williams v Spautz (1992) 174 CLR 509 20
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Order 24 JUDGMENT ON FAILURE TO PROSECUTE OR OBEY ORDER FOR PARTICULARS OR DISCOVERY
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Order 24 R 24.01 Judgment on dismissal Where P fails to provide Statement of Claim within time limited/fix matter for trial, proceeding can be dismissed for want of prosecution
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Failure to obey order R24.02 Where a party fails to comply with an order to give particulars/ order for discovery, If party is P, proceeding can be dismissed If party is D, defence can be struck out.
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R 24.05 Nothing in this Order shall affect the inherent power of the Court to dismiss any proceeding for want of prosecution or to order that upon the failure of a Party to do any act or take any step which under these Rules the party is required to do or take or to comply with an order that the party do any such act or take any such step the proceeding shall be dismissed or the defence struck out & that judgment may be entered or that there be judgment accordingly.
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Note O 29 alternative to O 24 Remember that discovery orders include: R 29.08 Order for particular discovery R 29.11 Order for further discovery 29.12.1 default notice 29.14 committal
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Summary stay and striking out a pleading
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R 23.01 Stay or judgment in proceeding Where a proceeding generally/ claim in a proceeding/ defence — (a) does not disclose a cause of action/answer; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of the process of the Court— the Court may stay the proceeding generally or in relation to any claim or agive judgment in the proceeding generally or in relation to any claim.
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Striking out pleading R 23.02 Where an indorsement of claim ….or a pleading in whole or in part— (a) does not disclose a cause of action or defence; (b) is scandalous, frivolous or vexatious; (c) may prejudice, embarrass or delay the fair trial of the proceeding; or (d) is otherwise an abuse of the process of the Court— the Court may order that the whole or part of the indorsement or pleading be struck out or amended.
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Vexatious litigant s 21 Supreme Court Act Where court satisfied that person has habitually, persistently & without any reasonable ground instituted vexatious legal proceedings can declare that person a vexatious litigant must not commence/continue proceedings in SCV or inferior court or tribunal without leave of Supreme Court
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Discontinuance & Withdrawal
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  • Fall '09
  • Judgment, Summary judgment, The Court

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