Preparing a NSW summary judgment application
Summary judgment allows a court to determine a case without a full trial where the opposing party has no real prospect of success. The test is strict and the court is careful not to deprive a party of a trial on a triable issue.
This is an 8-step workflow for preparing a NSW summary judgment application under the Uniform Civil Procedure Rules 2005 (NSW) for a plaintiff or defendant.
Before you start
- Pleadings closed or statement of claim served
- Key documentary evidence collated
- Client instructions on risk of an unsuccessful application obtained
- Legal analysis of no-real-prospect threshold complete
The workflow
Assess the threshold test
Assess whether the case meets the high threshold for summary judgment — no real prospect of success — as articulated in General Steel Industries v Commissioner for Railways.
Review pleadings and particulars
Review the pleadings for particulars, admissions and any gaps in the opposing party's case. Identify the specific factual or legal question that can be determined summarily.
Draft the notice of motion
Draft the notice of motion seeking summary judgment under r 13.1 (plaintiff) or dismissal under r 13.4 (defendant), or both alternatives where appropriate.
Prepare supporting affidavits
Prepare supporting affidavits annexing the documents that demonstrate the absence of a triable issue. Keep the evidence concise and targeted.
Draft written submissions
Draft written submissions addressing the threshold, the evidence, and the specific legal question. Cite controlling authority on the summary judgment test.
File and serve
File and serve the motion, affidavits, and submissions within the timeframe required by the court's directions. Provide sufficient notice before the return date.
Respond to the opposing evidence
Review the opposing affidavit and prepare any reply evidence or updated submissions addressing the arguable defence raised by the other side.
Attend the hearing
Attend the hearing, address the threshold test, and respond to any request for alternative relief (conditional leave to defend, security for costs).
What you will have at the end
A summary judgment or dismissal order, a conditional leave to defend, or an order refusing the application that nevertheless crystallises the issues for trial.
Common issues
- Bringing applications that do not meet the General Steel threshold
- Over-long affidavits with disputed factual material
- Failing to address the real prospect of a defence at trial
- Not seeking alternative relief such as security for costs
- Costs exposure if the application fails
Run this workflow on a real matter
Quillio drafts the motion, affidavit skeleton, and written submissions including the controlling authority on the summary judgment threshold. See /practice-areas/litigation-lawyers or start a free trial.
This workflow is a general guide for NSW. Federal Court and other jurisdictions have different summary judgment rules.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
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