Topic 12 Disposition Notes

TOPIC 12: DISPOSITION WITHOUT TRIAL

The vast majority of cases (approximately 95%) are resolved without a trial.

Mostly through:

• Defendant not resisting the claim e.g. no appearance, no defence

• Settlement between the parties

• Plaintiff’s unilateral decision to discontinue e.g. files a writ, but not the statement of claim

Ways actions can be disposed of without trial:

• Summary disposition (default appearance, default defence, summary judgment)

• Dismissal for want of prosecution and judgment on failure to prosecute or obey order for particulars on discover (default notices)

• Vexatious litigant status

• ‘Abandonment’ by the Pl (discontinuance per r 25.02 and withdrawal)

• Settlement (informal or formal compromise)

1. Summary Disposition

a) Default Judgment

• Default judgment generally occurs in two instances:

  • Where there has been a failure to take a step required by the rules; or

  • Where there has been a failure to comply with a court order, that is, a peremptory order, usually called a self-executing or springing order.

• i. Judgment in default of appearance

  • When proceedings have been commenced by writ (not originating motion), if a defendant does not file an appearance within the time limited (10 days Victoria), the plaintiff may apply, as of right, for judgement against the defendant. (r21.01(1)&(2))

  • Can be set aside if it is just in all the circumstances to do so, but in the absence of that claim, the matter is disposed of in the plaintiff’s favour

  • Time frames:

    • 10 days = Victoria (8.04(b))

    • 21 days = interstate (s17 SEPA)

    • 28 days = NZ/PNG (r8.04(c))

    • 42 days = overseas (r8.04(d))

• ii. Judgment in default of defence

  • As D has not served defence when required to serve a defence within the time limited, P may apply for judgment against D (r21.02(1)):

    • Special indorsement – D has 30 days from filing appearance provided writ done in accordance with 5.04

    • General indorsement – D has 30 days after P served of statement of claim

  • Also applies to a counterclaim (r21.06)

• Setting Aside a default judgment

  • The jurisdiction to set aside its orders is inherent in every court, unless displaced by statute and this jurisdiction extends to setting aside a default or ex parte judgment: Taylor v Taylor

  • If made under O21 (default in appearance):

    • The court has discretion to set aside a default judgment upon the application of the defendant (r21.07)

  • If made under O24 (failure to obey/meet order):

    • Can seek for it to be set aside under r24.06 (r24.06)

• What must party show to have default judgment set aside?

  • Party wanting judgment set aside will prepare an ‘affidavit in support’ (Per 46, Using O43 forms) with the following information, which the court will take into account when deciding whether to set aside:

    • Prejudice to the other side

    • Reasons for default

    • Whether there has been an unreasonable delay between judgment being entered and party having it sought to be set aside

b) Summary Judgment

• The summary procedure allows the plaintiff or defendant to gain judgment on the whole or party of a claim or defence even if the other party contests liability. It is judgment in favour of one side or other without need for trial.

  • Although there have been no procedural problems (all steps have been taken) one party believes that the result is foregone conclusion and that party asks the court to expediate the matter e.g. P says that defence has no merit, or D says the plaintiff has no claim

  • It is one method to prevent a vexatious litigant

  • Will a summary process limit the law’s development? Spencer v the Commonwealth

• STEP ONE - UNDER RULES: Summary Judgment for the plaintiff (or counter claiming D)

  • As a proceeding commenced by writ (22.01), P (or D) can apply for judgment at any time against D (who has filed appearance) on grounds that D (or P) has no defence (of any merit) to the whole or part of the claim or no defence except as to the amount of a claim. (r22.02)

  • Application for summary judgment by a P is to be made by summons for final judgment supported by an affidavit (r22.03(1)):

    • Verifying facts on which claim is based; and

    • Stating that in the belief of the deponent there is no defence, or no defence except as to amount claimed

  • Also applies to a P by counterclaim (r22.08)

  • A case must be very clear to warrant summary dismissal and the court must be satisfied that there is no question to be tried Cubillo v Cth

  • i. Response by D

    • D can challenge by showing cause against the application by affidavit. (r22.04)

    • Must set out in affidavit, why they have a good defence or for ‘some other reason’ why there shouldn’t be judgment. Must be served at least three days before hearing

  • After hearing application Court can: (r22.06)

    • Dismiss it

    • Give judgment for the plaintiff against the defendant on whole of claim or any part

    • Give defendant leave to defence the whole claim or part of which related to paying money

• STEP ONE - UNDER RULES: Summary judgment for the D

  • Where D has filed appearance, the court at any time may give judgment for the D against the P, if D has good defence on the merits (r23.03)

  • To do this, must have affidavit in support detailing the merits of the defence (r23.04)

  • Defendants commonly seek this when the plaintiff is statute barred

  • More difficult for D to get SJ as it deprives the P of bringing its action

  • It must be a very clear case to warrant dismissal: Cubillo

  • Courts may bar a defence in order to test novel law even if an expiration period has passed Williams

• STEP TWO - IN ADDITION UNDER CPA: Summary Judgment (‘no real...

Buy the full version of these notes or essay plans and more in our Civil Procedure Notes.