Applying for summary judgement as a plaintiff

Applying For Summary Judgment as a Plaintiff – An Article by Duncan Marckwald – Barrister




Duncan Marckwald is a commercial barrister who works with Aitken Whyte Lawyers’ litigation and dispute resolution team.

Most recently, in conjunction with Mr Marckwald, we successfully obtained Summary Judgment for our client. Following the application, our client was awarded Judgment against the defendants in the court proceedings, being a company and its director. This resolved our client’s claim for misleading or deceptive conduct and breach of contract.

It can be beneficial at times to engage a barrister to settle Court documents before they are filed. This can include documents such as applications, affidavits and pleadings including Claims, Statements of Claim and Defences. You then brief the barrister to appear on applications and at trial.

We have engaged Mr Marckwald to work with Aitken Whyte Lawyers on complex property matters. This has included matters related to constructive trusts and the removal of caveats.

Our clients benefit from our combined expertise in commercial, contract, and property law.

Mr Marckwald has written the following article on Applying for Summary Judgement as a Plaintiff exclusively for our website. We thank him for this contribution.

Applying For Summary Judgment as a Plaintiff

Litigation can be a time consuming and costly process. It can be especially frustrating for a plaintiff who considers the other side does not have a valid defence. One option that should be considered is to apply for summary judgment.

This article provides information relevant to a plaintiff applying for summary judgment in the Queensland Courts. A defendant can also apply for summary judgment against a plaintiff. This article, however, focuses on summary judgment by a plaintiff.

What Is Summary Judgment?

Summary judgment is an application that can be made to the Court for judgment.

Usually, to succeed in litigation and obtain judgment, the case must proceed all the way to a trial. There are multiple steps required before any matter will be ready for trial. Typically, in the Queensland Courts, those steps will include the exchange of pleadings (starting with the claim and statement of claim followed by a defence), the exchange of relevant documents (disclosure) and obtaining the necessary evidence.

Summary judgment is an opportunity to shortcut that process and to seek to persuade the Court that it should grant judgment in your (the plaintiff) favour without having to go all the way to a trial.

When Can A Plaintiff Apply For Summary Judgment?

A plaintiff can apply for summary judgment at any time after a defendant files a notice of intention to defend: rule 292(1) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).

Summary judgment should not be confused with judgment by default (also known as “default judgment”). Default judgment should be considered where the defendant does not file a notice of intention to defend within 28 days after the claim is served: rules 137 and 281 of the UCPR.

What Do You Need To Prove To Obtain Summary Judgment?

Under rule 292(2) of the UCPR:

If the Court is satisfied that—

  • (a) the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and
  • (b) there is no need for a trial of the claim or the part of the claim; the Court may give judgment for the plaintiff against the defendant for all or part of the plaintiff’s claim and may make any other order the Court considers appropriate.

The onus is on the applicant for summary judgment to persuade the Court that there is no real prospect of the opposite party succeeding in its defence and that there is no need for a trial: Queensland Pork Pty Ltd v Lott [2003] QCA 271, [41] (Jones J).

The applicant for summary judgment will need to put on evidence, by affidavit, to be able to meet this onus. It is important that this evidence is sufficient to satisfy the Court that the plaintiff is entitled to judgment.

When the Court is considering whether the defendant has no real prospect of successfully defending the proceeding, the appropriate inquiry is whether there exists a “real, as opposed to a fanciful, prospect of success”: QUT v Project Constructions [2003] 1 Qd R 259, [7] (Holmes J, Davies JA and Mullins J agreeing).

It is a significant step for the Court to grant summary judgment and end a proceeding without having a trial. Issues raised in proceedings will be determined summarily only in the clearest of cases: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, [2] (McMurdo P).

However, summary judgment under rule 292 of the UCPR, can, in appropriate cases save expense, achieve expedition and avoid the Court’s resources being used where it is in the interests of justice that a matter not proceed to trial: Bernstrom v National Australia Bank Limited [2003] 1 Qd R 469; [2002] QCA 231, [37]–[38] (Jones J, Cullinane J agreeing), citing Swain v Hillman [2001] All ER 91, 92, 94 (Lord Woolf).

It may be difficult to establish to the Court that there is no real prospect of the defendant being successful and no need for a trial if there are important factual issues in dispute.

For example, if a plaintiff sues based on an oral contract, and the defendant disputes the oral contract was made, that will make it difficult to obtain summary judgment. There will be a clear factual issue about whether the contract is formed.

A trial is likely to be necessary so that all the relevant evidence can be presented and the relevant witnesses who were present when the contract was discussed can give evidence in person and be cross-examined.

It can also be difficult to obtain summary judgment where there are complex issues of law involved in the case that may require proper consideration in a trial: Filmana Pty Ltd v Tynan [2013] QCA 256, [72] (Muir JA, McMurdo P, and Holmes JA agreeing).

Finally, even if the plaintiff can satisfy the Court of the requirements that there is no real prospect of defending and that a trial is not needed, the Court has a discretion whether or not to grant summary judgment: Willmott v McLeay [2013] QCA 84, [17] (Holmes JA, Fraser J and White JA agreeing).

What Happens If You Are Successful In Obtaining Summary Judgment?

If a plaintiff wins a summary judgment application, judgment will be granted for the entire proceeding, or if an application was only made for part of the case, in respect of part of the case.

Although costs are at the discretion of the Court (see r 681 of the UCPR), generally a successful plaintiff will be entitled to their costs of the proceeding and the defendant will be ordered to pay the plaintiff’s costs of the proceeding (including the costs incurred in applying for summary judgment).

What Happens If You Lose The Summary Judgment Application?

If a plaintiff is unsuccessful in a summary judgment application, it does not mean the plaintiff loses the entire case. The case can generally continue in the ordinary way to a trial.

However, some of the important issues in the case may have been determined by the judge hearing the summary judgment application. This can give each side a more informed view on their prospects of success and may lead to a resolution out of Court.

If a plaintiff is unsuccessful in obtaining summary judgment, the plaintiff may be ordered to pay the costs of the defendant in defending the summary judgment application.

Under rule 299 of the UCPR, if it appears to the Court that a party who applied for summary judgment was or ought reasonably to have been aware that an opposite party relied on a point that would entitle that party to have the application dismissed, the Court may dismiss the application and order costs to be paid within a time specified by the Court.

However, there are circumstances where the costs will be reserved (to be decided at a later date) or costs in the cause (awarded to the party who is ultimately successful): State of Queensland v Nixon [2002] QSC 296 [6]-[7] (Muir J).


Summary Judgment can be a very useful weapon in a plaintiff’s armoury when faced with a defence that appears to have no merit. Proper consideration and advice should be obtained before commencing an application as the consequences can be significant.

Aitken Whyte Lawyers have experience in advising clients when to apply (and just as importantly, when not to apply) for summary judgment. Aitken Whyte Lawyers have acted for parties who have been successful in obtaining summary judgment as well as parties who have been successful in defending an application for summary judgment.

This article was written in conjunction with Duncan Marckwald, a barrister practicing predominantly in commercial law.

Focused on Results

Aitken Whyte Lawyers Brisbane and the barristers we work with are focused on results. Being an established Brisbane law firm, we know the legal landscape and are known within it. We can combine our years of experience with those of commercial barristers with whom we have developed strong working relationships. This puts our clients in the best position for success.

It is essential you have an experienced legal team to represent you in litigation. We will:

  • consider and advise you on whether to apply for Summary Judgment;
  • properly advise you of any alternate options, such as applying to strike out only part of a defence;
  • give you the option to brief a barrister and provide a recommendation based on your dispute type and price range;
  • appear, or instruct, on any application on your behalf, giving you the best chance of having Judgment awarded successfully.

If you would like advice on the options available to you, our Litigation and Dispute Resolution team can help. Ensure your rights are protected. Contact us on 07 3229 4459 to speak to a lawyer.

Our solicitors can assist you with all Summary Judgment and litigation and dispute matters. Call us today to discuss your needs.

Office Location and Contact Details


Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000

Ph: 07 3229 4459
Fax: +617 3211 9311


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