Applying for Summary Judgment

Applying for Summary Judgment as A Defendant



Applying for Summary Judgment as A Defendant

Summary Judgment can be a useful procedural tool or weapon for a Defendant if a Plaintiff has brought a Claim without merit.

If someone is suing you, it is natural to want to bring about a swift end to the dispute.

Defending proceedings can be stressful, time-consuming and expensive. Even more so if you consider the Claim against you lacks merit. Applying for Summary Judgment is thus an attractive option to have court proceedings finalised.

This is an overview for Defendants wishing to bring an application. The following information is relevant to applications before the Queensland Courts.

See our article by Duncan Marckwald if you are a Plaintiff applying for Summary Judgment.

What Is Summary Judgment?

Summary Judgment is an opportunity for a Defendant to end proceedings early. An early resolution will avoid the time and expense of a trial, as well as the steps along the way. Obtaining Judgement in this manner resolves the matter, finally, before it progresses to a trial.

It can be a long process for a Defendant to defeat a Plaintiff’s Claim in litigation. This is as, generally, the case must proceed to a trial before a Judge or Magistrate. There are many steps along the road before a trial. In Queensland Courts, these steps most often include:

  • the exchange of pleadings (starting with a Plaintiff’s Claim and Statement of Claim);
  • the exchange of relevant documents (disclosure);
  • obtaining the necessary evidence (which can include engaging experts to give evidence); and
  • attending mediation.

In law, “summary” describes judicial processes conducted without the customary formalities. Therefore, Summary Judgment is judgment without all the usual steps.

Summary Judgement can avoid the time and the expense of a trial.

When Can A Defendant Apply for Summary Judgment?

A Defendant can apply at any time after filing their Notice of Intention to Defend. See Rule 293(1) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).

The Court can award Summary Judgment either against all or part of a Plaintiff’s Claim.

Summary Judgment Is Distinct from Default Judgement

Summary Judgment is distinct from Default Judgment, though it is easy to confuse the two.

Default Judgment is only available to Plaintiffs.

A Plaintiff must serve a Defendant with their Claim and Statement of Claim. A Defendant then has 28 days to file a Notice of Intention to Defend. If the Defendant fails to file this notice, the Plaintiff can then apply for Default Judgment. See rules 137 and 281 of the UCPR.

What Must A Defendant Show When Applying for Summary Judgment?

Rule 293(2) of the UCPR provides:

If the Court is satisfied –

a) the plaintiff has no real prospect of succeeding on all or 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 defendant against the plaintiff for all or part of the plaintiff’s claim and may make any other order the court considers appropriate.

A Defendant must show that:

all or part of the Plaintiff’s Claim has no prospects of success; and

there is no need for a trial.

This does not mean the Plaintiff’s Claim must be “bound to fail”. The Plaintiff only needs to have a real, as opposed to fanciful, prospect of success. See RB Lease Pty Ltd [2013] QCA 181, [21].

The Court Has Consistent Requirements for Defendants and Plaintiffs Applying for Summary Judgment

Rule 293 of the UCPR is in near-identical terms to rule 292 of the UCPR. The latter of which governs Summary Judgment applications brought by a Plaintiff. As such, the Court will interpret both rules in the same way. See Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, [11], [17].

Application Process

Who Must Persuade the Court?

The onus of persuading the Court of the matters in rule 293(2) of the UCPR falls on the Defendant. See Queensland Pork Pty Ltd v Lott [2003] QCA 271, [41]. To discharge this onus, a Defendant will need to give evidence by way of affidavit.

The Defendant must first make out a prima facie case for Summary Judgment. If they can do this, the onus will then shift to the Plaintiff. The Plaintiff must then persuade the Court that the Defendant should not receive Summary Judgment.

If the Plaintiff cannot do this, the Defendant will likely succeed in its application. See Queensland Pork Pty Ltd v Lott [2003] QCA 271, [41] (Jones J).

Summary Judgment Is at The Court’s Discretion

Why A Defendant May or May Not Be Successful

You should bear in mind that granting Summary Judgment is at the Court’s discretion. See Bolton Properties Pty Ltd v JK Investments (Australia) Pty Ltd [2009] 2 Qd R 202. This means that even where a Defendant can prove that:

  • a Plaintiff has no real prospects of success; and
  • there is no need for a trial;

this does not compel or oblige the Court to grant them Summary Judgment.

Circumstances Where It Is Unlikely A Court Will Grant Summary Judgment

In short, a Court may not grant Summary Judgement to the Defendant if:

  1. the Plaintiff has an arguable case;
  2. there are issues in dispute; or
  3. questions of law exist.

Firstly, the Court is unlikely to grant Summary Judgment for the Defendant if:

  • a Plaintiff has an arguable case; but
  • there are deficiencies in their Statement of Claim; and
  • the Plaintiff could fix those deficiencies by amending their Statement of Claim.

Instead, a Court will more likely permit the Plaintiff to file an Amended Statement of Claim. This will then allow the Plaintiff to advance their case.

In these circumstances, the Defendant should consider seeking an Order for Costs.

The Plaintiff’s Amended Statement of Claim may raise new allegations. Due to this, a Defendant would need to amend their Defence to address them. This would not have been necessary if the Plaintiff had pleaded their Claim well in the first place.

Thus, the Court may award the Defendant their costs “thrown away” in having to amend their Defence.

Further, if:

  • there are key factual issues in dispute between the parties; or
  • there are important questions of law the Court should consider at trial;

then a Court is unlikely to grant Summary Judgment. See Willmott v McLeay [2013] QCA 84, [17].

Circumstances When It Is Likely A Court Will Grant Summary Judgement

The Court is likely to grant Summary Judgment for the Defendant where:

  • the Plaintiff’s Statement of Claim discloses no reasonable case; and
  • the Plaintiff cannot cure it by amendment.

See McDonald Keen Group Pty Ltd (in liq) v State of Queensland [2019] QSC 94, [15].

Other Matters A Court Will Consider

Granting Judgement to a Defendant summarily will deprive a Plaintiff of the right to argue their case at trial. This is a drastic step for a Court to take. Alert to this fact, the Court will only grant Summary Judgment in the clearest of cases. See Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, [3].

However, there is no doubt Court lists are busy, and the wait to receive a trial date is often lengthy. Summary Judgment provides an opportunity to identify cases that do not need to proceed to trial. This gives effect to the overarching purpose of modern litigation in Brisbane. This purpose is to reach expeditious resolutions to disputes at the smallest expense. See Rule 5 of the UCPR.

What Happens If You Are Successful in Obtaining Summary Judgment?

If an application is successful, the Court will enter judgment in favour of the Defendant for:

  • the entire proceeding; or
  • part of the entire proceeding if the Defendant only made the application for part of the case.
Costs After A Successful Application

Costs are always at the discretion of the Court.

The general rule is that costs “follow the event”. This means the successful party receives their costs of the proceeding. In this case, the Court would order the Plaintiff to pay the Defendant’s costs of the application and the proceeding. See Rule 681 of the UCPR.

What Happens If You Lose the Application?

If a Defendant loses their application for Summary Judgement, it does not spell the end of the matter. The case will generally proceed to trial unless resolved or discontinued earlier.

Even an unsuccessful application can help to progress the matter. In coming to a decision, the Court may also form a view about important aspects of the case. This in turn may provide the parties with a more informed view of each sides’ prospects of success. Such information may help lead to an out of Court resolution to the matter.

Costs of An Unsuccessful Application

If a Defendant’s application is unsuccessful, the Court will generally either:

  1. order the Defendant pay the Plaintiff’s costs of the application (most likely);
  2. “reserve costs” (decide about costs later); or
  3. order “costs in the cause” (award costs to the party who is successful at the end of the matter).

The first option is particularly likely to be the Court’s position if the Defendant:

  • ought to have appreciated their application would fail; or
  • applied to gain a forensic advantage.

See Day v Humphrey [2018] QCA 321, [10].

In this case, the Defendant would more than likely have to pay the Plaintiff’s costs of defending the application.


In conclusion, Summary Judgement can be a useful tool to bring about an early end to litigation. Thus, a Defendant faced with a meritless Claim should give thought to applying.

The result of a Summary Judgment application can alter the outcome of the litigation. You should ensure you receive legal advice before deciding whether to apply.

Aitken Whyte Lawyers have experience with when to apply for Summary Judgment. We will also review your case and tell you if an application would not be in your interest.

Our Brisbane litigation lawyers have acted for parties who were successful in obtaining Summary Judgment. We have also had success in resisting applications for Summary Judgment.

Focused on Results

Aitken Whyte Lawyers are focused on results. Our experience puts our clients in the best position for success.

We will tell you of all options available to resolve your dispute, such as:

Contact us on 07 3229 4459 to speak to a Litigation and Dispute Resolution lawyer for advice.

Our solicitors can assist with all Summary Judgment and Litigation and Dispute matters.

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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