This article discusses the availability and utility of the summary judgment procedure in civil litigation. In contested legal proceedings there is the potential for a party to obtain judgment against the other party summarily without the need to proceed to a formal trial. A judgment is the formal determination of the case by the court. The summary judgment procedure is a useful tool which allows a party to legal proceedings to potentially finally resolve a case at an early stage, which avoids the time, effort and cost of having to proceed to a full trial.


The rules of each particular court usually specify when the court may grant summary judgment to a party. Generally, either a plaintiff or a defendant may make an application to a court for summary judgment and such an application is determined on its merits. A plaintiff may generally seek summary judgment where a defendant clearly has no arguable defence to a claim. A defendant may ordinarily seek summary judgment on the basis that a plaintiff’s action is frivolous or vexatious or where the claim is otherwise not arguable.


The threshold to be satisfied by a party opposing a summary judgment application is relatively low, meaning that summary judgment is often granted sparingly and usually only in the clearest of cases.



In the recent case of Brand Hwy Pty Ltd v Hay Australia Pty Ltd [2015] WASC 375, Master Sanderson had to deal with a summary judgment application by a defendant lessee denying liability for damage caused by a fire to the lessor’s property by the lessee’s alleged negligence in not properly decommissioning a bale builder. The lessee denied liability on the basis that, under the lease, the lessee was not liable for damage that was covered by insurance taken out by the lessor. Further, the lessee was required to pay the lessor’s insurance premiums as part of the outgoings and that insurance would cover the costs of rectifying the damage.


As it turned out, there were no Australian case authorities which had directly determined this issue, and the defendant relied on case authorities from the United States, Canada and New Zealand. However, all of these cases did not have fact situations comparable with the contractual position in question and further, had very persuasive dissenting judgments.



The Master was ultimately of the view that the plaintiff did have an arguable position and summary judgment was not granted.
The Master also mentioned that if, after an analysis of the cases, he had found in favour of the defendant, then the plaintiff has a right to appeal, and the question on appeal would be whether the plaintiff has an arguable case, not whether the plaintiff’s case would succeed in the end. In the Master’s view, this highlighted the weakness of the summary judgment procedure in a case like this.


Further, the Master mentioned that a trial of a preliminary issue may have been the appropriate procedure, in that the question to be answered is a determination of the parties respective positions, and that question is different to the question that needs to be answered on a summary judgment application.


The case essentially highlights that summary judgment applications should only be made in the most certain of cases where there is no real question to be tried. If there is a particular issue which requires resolution and upon which a case may pivot, then it may be more appropriate to seek the trial of a preliminary issue and avoid the potential pitfall of the low threshold question applicable in summary judgment applications.

This website and blog is made available by Havilah Legal only to give you general information and a general understanding of the law. It is not legal advice, and should not be treated as such.

The legal information on this website is provided ‘as is’, and Havilah Legal makes no representations or warranties, express or implied, in relation to the legal information on this website.

Your use of this website does not establish a lawyer/client relationship between you and Havilah Legal. You must not rely on the information on this website as an alternative to legal advice. If you need legal advice, or if you have any specific questions about any legal matter you should consult Havilah Legal or your professional legal services provider.

Liability limited by a scheme approved under Professional Standards Legislation.