Prevention of Abuse of Court Processes- LAWS4003

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Asse ssme nt 3 – Policy Brie f
Summary Dismissal
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Exe cutive Su …

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1
Asse ssme nt 3 – Policy Brie f
Summary Dismissal
Student Name:
Student ID:
Course:
2
Exe cutive Summary
The policy brief defines the merits of the summary disposal systems available to the
courts that allow for the early terminatio n of proceedings before a trial takes place. They
can be invoked by the defendant as well as the plaintiff under the relevant rul es of the
Uniform Civ il Procedure Rules 2005 (NSW).
Such proceedings are beneficia l because they help save costs, time and also ensure abuse
of the process of the court can be prevented. Vexatious claims that cause unnecessary
trouble to the defendants an d drain the resources of the courts can also be dismissed
through the summary disposal processes.
The key message of the policy brief is that the court should exercise extreme discretion
when using the mechanism of summary disposal as it can also lead to i njustice for the
litigating parties. Some of the proposed recommendatio ns are –
ï‚· Taking into consideratio n the fundame nta l rights of the parties.
ï‚· Avoiding such processes in factually intensive cases.
ï‚· Creating negative consequences for parties found to be ab using the powers of the court.
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Contents
Purpose ………………………….. ………………………….. ………………………….. ………………………….. ………….. 4
Analys is ………………………….. ………………………….. ………………………….. ………………………….. …………. 4
Conclus ion and Recom mendations ………………………….. ………………………….. ………………………….. …… 7
Bibliography ………………………….. ………………………….. ………………………….. ………………………….. …… 9
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1. Purpose
1.1 The purpose of the policy brief is to provide the merits of the summary disposal systems
availab le to the courts and advice on any recommendatio ns to the current regulatio ns and
processes related to summary dismissa ls that may contribute to the welfare of the people
of NSW.
1.2 The various types of summary disposals allow the court to conclude the litiga tio n
proceedings in their early stages. Such processes allow for the termina tio n of proceedings
before a trial can take place and are usually invok ed by the oppo sing party if the
substance or form of the proceedings is unsatisfactory. 1
2. Analysis
2.1 Summary Disposal Proce sse s
The court may dismiss the proceedings of unreasonable plaintiffs or defendants through
various summary disposal s processes, such as summary dismissa ls and summary
judgments. These processes are governed by State/Territo ry based legislatio n, rather than
federal level legisla tio n. The Uniform Civ il Procedure Rules 2005 (NSW) govern the
summary disposal processes in NS W.
The court may provide a ‘summary judgment ’ against the defendant on the applicatio n of
the plaintiff , proving that the defendant does not have any valid defen ce.2 The court may
also strike out pleadings if they do not have a reasonable cause of action, may have a
1 Chapman & Chapman v Australian Broadcasting Commission [2000] SASC 146 2 Uniform Civil Procedure Rules 2005 , r. 13.1
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tendency to create prejudice and cause a delay in the litiga tio n process, or may be
considered an abuse of power. 3
‘Summary dismissa l ’ orders are granted by the court in cases there is proof that the
proceedings are frivolo us, an abuse of power is occurring as a result of the proceedings,
or no reasonable cause of action may be disclosed. 4 Proceedings may also be dismissed
by the court for want of due despatch .5 However, any excuse or explana tio n that is
offered by the litigating parties explaining the delay is duly tak en into consideratio n by
the courts , and dismissa l may not occur in such cases. 6
A part of the proceedings can also be dismissed through an applicatio n for partial
dismissa l as per rule 13.5. Furthermore, the court can also dismiss the proceedings at the
non -appearance of the plaintiff or by anyone on behalf of the plaintiff as per rule 13.6.
Irrespective of the motive of the litiga nts, orders for dismissa ls may occur if the
proc eedings are “obviously untenable ” and can be considered groundless. 7
2.2 Discre tion of the Court
Orders of summary dismissa ls are given ou t with great care by the courts. A lack of
reasonable cause of action is one of the primary requireme nts for an order of summary
dismiss a l to be given by the courts , and the opposing party must be able to prove that
there are “no real issues to be tried”. 8 When the courts have an option to obtain necessary
evidence through interrogatories which can help fulfill the gaps in the plaintiff’s case, the
3 Uniform Civil Procedure Rules 2005 , r. 14.28 4 Uniform Civil Procedure Rules 2005 , r. 13.4 5 Uniform Civil Procedure Rules 2005 , r. 12.7 6 Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) ( NSW) 405 7 Attorney -General v Wentworth (1988) 14 NSWLR 481 , 491 8 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 , 128
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court cannot resort to summary dismissa ls . 9 In cases for want of prosecution, if the
inappropriate delay occurred due to the mental state of the plaintiff, this fact is regarded
as a “releva nt consideratio n” by the c ourts. 10 The litiga nts are required to submit
affidavits stating the reasons why the co urt should consider the dismissa l of proceedings
or give an early resolutio n before the commence me nt of the trial. Before taking such
options into consideratio n, the cour t functio ns under the presumptio n that the applicants
are entitled to the processes of the court. 11Thus, immense discretion is undertaken by the
court before r esorting to the summary dismissa l of proceedings.
2.3 De lay in P roce e dings and Costs
One of the merits of summary dismissa l procedures is that they allow for the early
resolutio n of disputes between the parties. Excessive delays in litigatio n proceedings
cause a compromise on the quality of justice that is served by the court. Public
confidence is al so undermined within the judicia l system as a result of excessive delays
and backlog s. 12Summary disposal processes allow for the quick determina tio n of the
trial , ensuring the backlog of the courts can be cleared easily. Unnecessary costs of
running the co urt processes are also saved. Expenses and injustice also occur when the
opposite party is required to undertake additiona l work for preparing for the unreasonable
and irreleva nt trial .13
2.4 Pre ve ntion of Abuse of Court Proce sse s
9 Wickstead v Browne (1992) 30 NSWLR 1 , 11 10 State of New South Wales v Plaintiff A [2012] NSWCA 248 11 Cl i fton Ba ker, ‘ Termi na ti ng proceedi ngs before tri a l : s umma ry j udgment a nd s tri ki ng out of pl ea di ngs ’ (2017) 54
Precedent AULA 12 Ra chel Ca l l i nan, ‘Court Del a ys i n NSW: I s s ues a nd Devel opments ’ (Bri efi ng Pa per No. 1/02, NSW Pa rl i a menta ry
Li bra ry, 2002) 1,4 13 Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd & Ors [2011] QCA 252
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‘Vexatious claims’ that cause the defendant unnecessary trouble and expenses are
dismissed by the courts through summary dismissa l processes. This is also inclusive of
proceedings that may be considered an abuse of the processes of the court for the purpose
of harassing and annoying t he defendant. 14 Orders for vexatio us proceedings are also
made by the court in case the court finds that the plaintiff frequently conducts such
proceedings in Australia. 15 Litigatio n of concurrent proceedings in various courts for the
same matter or proceedi ngs for the purpose of extorting money from the defendant are
examples of proceedings that are an abuse of the processes of the court. 16 Therefore, such
abuses of court procedures are prevented through the means of summary disposals and
are one of the major merits of undertaking such processes.
3. Conclusion and Re comme ndations
It can be concluded that the merits of summary disposal processes are invaluab le to the
court. They help ensure that unnecessary costs of the courts and litiga nts are saved, help
in the prevention of delay of proceedings, ensure that the abuse of process of the court
does not take place and are undertaken through discretion by the court in accordance with
the legal tests established through precedence. The processes are accessible to bot h
plaintiffs and judgments but could also cause injustice for the other party if not given the
opportunity to prove their cases. Accordingly, the following are the proposed
recommendatio ns in relation to the summary disposal processes used by courts –
 Fund amenta l Rights of Parties – Summary judgments and summary dismissa ls
lead to the early terminatio n of the trial at the ‘discretio n’ of the court. However,
14 Vexatious Proceedings Act 2008 (NSW), s . 6 15 Vexatious Proceedings Act 2008 (NSW), s . 8(1) 16 Williams v Spautz (1992) 174 CLR 509
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there is always a possibility that even the disposal of unreasonable cases could
lead to a violatio n of the fundame nta l rights of the other party to the litiga tio n.
17Therefore, the court must always take into consideratio n the fundame nta l rights
of the other party when receiving an applicatio n for the use of summary disposal
processes.
 Factually Intensive Cases – Such cases could be decided differe ntly by differe nt
groups of thoughts based on the distinct opinions of judges, and the ‘reasonable
test’ could be considered to be the personal opinion of the court. 18 Accordingly,
summary judgm ents and dismissa ls in such cases should be avoided by the courts
and rules related to such cases could be established to ensure the court is
subjected to stricter guidelines when taking into consideratio n the summary
disposal process.
 The regulatio ns rela ted to ‘unsatisfac tory professiona l conduct’ under the Legal
Profession Uniform Law (NSW) should be strictly imple me nted for lawyers that
help plaintiffs engage in vexatious litiga tio ns or other cases that are an abuse of
the power of the court. In case su ch orders are given out against the plaintiff, the
litigating parties , includ ing the lawyer , should be held strictly liable. 19 This can
help ensure that the negative consequences act as a deterrence for parties from
engaging in proceedings that are an abuse of the court’s processes, while
summary dismissa l processes serve as a means to justice when the parties try to
misuse the processes of the legal system.
17 Suj a A. Thoma s , ‘Reformi ng the Summa ry Judgment Probl em: The Cons ens us Requi rement’ (2018) 86(5)
Fordham Law Review 2241, 2248 18 I bi d 2251 19 Cl i fton Ba ker, ‘ Termi na ti ng proceedi ngs before tri a l : s umma ry j udgment a nd s tri ki ng out of pl ea di ngs ’ (2017) 54
Precedent AULA
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Bibliography
A. Legislations
Uniform Civ il Procedure Rules 2005 [NSW]
Vex atious Proceedings Act 2008 (NSW)
B. Case Laws
Attorney -General v Wentworth (1988) 14 NSWLR 481
Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd & Ors [2011] QCA 252
Chapman & Chapman v Australian Broadcasting Commission [2000] SASC 146
General Steel Industries Inc v Commissioner for Railw ays (NSW) (1964) 112 CLR 125
Wick stead v Browne (1992) 30 NSWLR 1
Williams v Spautz (1992) 174 CLR 509
Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405
C. Articles/Books/ Reports
Clifton Baker, ‘Termina ting proceedings before trial: summary judgment and striking out
of pleadings’ (2017) 54 Precedent AULA
Rachel Callina n, ‘Court Delays in NSW: Issues and Developments’ (Briefing Paper No.
1/02, NSW Parliame nta ry Library, 2002)
Suja A. Thomas, ‘Reforming the Su mmary Judgment Problem: The Consensus
Requireme nt’ (2018) 86(5) Fordham Law Rev iew 2241

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