Summary judgment and summary dismissal are discretionary remedies and although detailed argument may be necessary to determine the hopelessness of the respondent’s case, the more complex and arguable the legal point, or the more dependent it may be on debatable factual premises, the less likely that summary disposal will be appropriate, particularly if the relevant law is in a state of development: NRMA Insurance Ltd v AW Edwards Pty Ltd (1995) 11 BCL 200. Where there are multiple parties, the desirability of proceedings against all parties being heard before removing one party may constitute a reason for refusing summary judgment: NRMA Insurance Ltd v AW Edwards Pty Ltd, above.

As to applications for summary judgment in cases where a defendant seeks to rely on the Contracts Review Act 1980, see Ritchie’s at [13.1.40].

Although its use is appropriate in a variety of circumstances provided they come within the principles set out above, the procedure of summary judgment or dismissal is particularly useful in cases where irrelevant and extravagant claims are made in pleadings by a party (often unrepresented), and the other party will be put to considerable expense in providing evidence to refute such irrelevant and extravagant allegations. On the other hand, where there can be no dispute on the facts, there is often little point in an application for summary disposal and the preferable course is to proceed expeditiously to a final hearing.

If a party against whom summary judgment is given has made a cross-claim against the party obtaining the judgment, the court may stay enforcement of the judgment until determination of the cross-claim: r 13.2.

If on an application for summary judgment, the proceedings are not wholly disposed of by the judgment, the proceedings may be continued as regards any claim or part of a claim not disposed of by the judgment: r 13.3.

The plaintiff must show that any defence intended to be relied on is untenable and cannot possibly succeed. See generally Spellson v George (1992) 26 NSWLR 666 at 678–679 per Young AJA, with whom Handley JA and Hope AJA agreed. Summary judgment will not be granted where there is any serious conflict as to a matter of fact (Sidebottom v Cureton (1937) 54 WN (NSW) 88), or any question of credit involved: Bank of New South Wales v Murray [1963] NSWR 515. The power to order summary judgment should be exercised with great care, and not unless it is clear that there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99.

In practice, the test applied to summary judgment applications by plaintiffs is the same as that applied to summary dismissal applications by defendants. That test is that “the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion”. The test has been variously expressed, including “so obviously untenable that it cannot possibly succeed”, “manifestly groundless”, etc: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128–129 per Barwick CJ. See also Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J; Theseus Exploration NL v Foyster (1972) 126 CLR 507 at 514; Webster v Lampard (1993) 177 CLR 598 at 602–603; Cosmos E-C Commerce Pty Ltd v Sue Bidwell & Associates Pty Ltd [2005] NSWCA 81 at [37]–[38].

Summary disposal is not limited to cases where argument is unnecessary to show the futility of the claim or defence, and argument, even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff (or of the defendant) is so clearly untenable that it cannot possibly succeed: General Steel Industries v Commissioner for Railways (NSW), above, at 130. The court will determine questions of law on such applications if satisfied that the point is clear: Silverton Ltd v Harvey [1975] 1 NSWLR 659 at 665. It follows that the court examines the evidence, not for the purpose of making findings of fact, but only to determine whether a triable issue is disclosed: Wickstead v Browne (1992) 30 NSWLR 1 at 9.

The requirement in r 13.1(1)(b) for evidence from the plaintiff or some responsible person of belief that the defendant has no defence, does not require any particular form of words. The requisite belief must be established, but that can be done by an inference properly drawn from evidence furnished by the plaintiff or other responsible person; opinion, as opposed to belief, is insufficient: Cosmos E-C Commerce Pty Ltd v Bidwell & Associates Pty Ltd, above, at [47].

Neither the CPA nor the UCPR contain a definition of “frivolous”. It is defined in the Shorter Oxford Dictionary as “of little or no value or importance, paltry; (of a claim, charge, etc) having no reasonable grounds; lacking seriousness or sense”; and in the Macquarie Dictionary as “of little or no weight, worth or importance; lacking seriousness or sense”. In rules such as the present it is invariably used in conjunction with “vexatious”.

In Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491, in the context of the Supreme Court Act 1970, s 84(1) (now repealed) (vexatious litigant), Roden J said:

Vexatious proceedings have also been described as “proceedings intended to harass or annoy, cause delay or … taken for some other ulterior purpose or which lack reasonable grounds”: B Cairns, Australian Civil Procedure, 11th edn, Thomson Reuters, Australia, 2016 at [3.30]. For an examination of relevant principles and the Vexatious Proceedings Act 2008, see Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [41], [67].

Section 84 of the Supreme Court Act was repealed by the Vexatious Proceedings Act 2008 (the Act). Section 6 of the Act (as amended by the Vexatious Proceedings Amendment (Statutory Review) Act 2018), provides that vexatious proceedings include:

Section 4 defines “proceedings” to include any civil and criminal proceedings or proceedings before a tribunal.

In practice, cases coming within para (a) of r 13.4(1) will generally also come within para (b) (no reasonable cause of action) and/or para (c) (abuse of process).

As to the power of NCAT to dismiss proceedings it considers to be vexatious under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), see Minister for Education and Early Childhood Learning v Zonnevylle (2020) 103 NSWLR 91.

See [2-7600]ff for further information.

Unlike applications to strike out pleadings under UCPR r 14.28, where the court is concerned solely with the form of the pleading and where, if the application is successful, leave may be granted to amend to plead in proper form, in applications under this rule the court is not limited to a consideration of the form of the pleading but receives evidence to determine whether the plaintiff’s claim has any prospect of success. If it has, but the claim is not adequately expressed in the pleading, the court should not dismiss the proceedings or the particular claim, but should grant leave to the plaintiff to file an amended statement of claim or cross-claim (in the case of an application in respect of a cross-claim). See generally Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 943–944.

The test for determining whether a reasonable cause of action is disclosed is that set forth in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128–129 and the other cases referred to in No issue to be tried at [2-6910].

Where the facts are peculiarly within the defendant’s knowledge, the plaintiff’s claim should not be summarily dismissed because of gaps in the plaintiff’s case if the necessary evidence might be obtained as a result of discovery or interrogatories: Wickstead v Browne (1992) 30 NSWLR 1 at 11.

Similarly, one of a number of defendants cannot be entitled to summary dismissal because of deficiencies in the plaintiff’s case because, if the matter proceeds to trial, such deficiencies may be filled by evidence in the case of other defendants: Wickstead v Browne, above, at 11–12; Ford v Nagle [2004] NSWCA 33.

Abuse of process can take many forms including:

In Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 at 533, the majority described it as undesirable that limitation questions be decided in interlocutory proceedings, except in the clearest of cases. In Hillebrand v Penrith Council [2000] NSWSC 1058, Austin J relied on the former equivalent of r 13.5 to strike out a claim for relief which was clearly statute-barred.

A pleading or part thereof will be struck out if the court is satisfied that even if all the allegations of fact set out in the pleading are proved, those facts would not establish the essential ingredients of a cause of action or constitute a defence. Often such applications are used in this way to determine whether the facts alleged (and for the purpose of the application assumed to be true) constitute a valid cause of action or defence.

A pleading or part thereof may tend to prejudice, embarrass or delay the fair trial of the proceedings if it contains allegations which are vague or imprecise such that the other party cannot plead to such allegations specifically, or if it contains allegations that are irrelevant, unnecessary or scandalous.

See generally Northam v Favelle Favco Holdings Pty Ltd (unrep, 7/3/95, NSWSC) per Bryson J. See also Lin v State of NSW [2024] NSWSC 653 at [39]–[43], in which Chen J held at [42] it was proper to characterise the pleading (the plaintiff’s ninth version) as “unintelligible, ambiguous, vague or too general” (quoting Bongiorno J in Gunns Ltd v Meagher [2005] VSC 251 at [57]), and that it would be inconsistent with the overriding purpose of the CPA and work considerable unfairness and injustice upon the defendant if leave were granted to the plaintiff to rely on it.

In some such cases it will be appropriate to merely strike out the offending passages, in others it will be more appropriate to strike out the whole pleading and grant leave to replead.

Before seeking on order under this rule, the solicitors for the moving party should write to the opposing solicitors pointing out the objection and inviting an amendment. Whether such a letter has been written and its response, if any, will often be relevant on the question of costs.

See [2-6920] above.