Order 12 Division 4 of the National Court Rules 1983 is headed Summary Disposal. It allows a plaintiff to obtain judgment where the defendant has responded but has no real answer.
Rule 37 — read this first
This Division applies to all proceedings except proceedings which include —
(a) a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage; or
(b) a claim by the plaintiff based on an allegation of fraud; or
(c) a claim for damages arising in respect of the death of any person or in respect of personal injuries to any person.
Note the words “proceedings which include”. One excluded claim takes the whole proceeding outside the Division — not merely that claim.
The categories overlap with those requiring a writ under Order 4 Rule 2: tort, fraud, and damages for death or personal injuries. The reason is the same in both places: these are claims the law regards as requiring a trial.
The exclusion for defamation sits with Order 8 Division 7, which imposes its own particulars regime. The exclusion for fraud sits with Order 8 Rule 30, requiring particulars of fraud.
But see Rule 39(1): a party may apply under the Division notwithstanding that Rule 37 excludes the Division in relation to a claim made by some other party. A defendant’s excluded cross-claim does not stop the plaintiff applying on their own claim.
Rule 38
(1) Where, on application by the plaintiff in relation to any claim for relief or any part of any claim for relief —
(a) there is evidence of the facts on which the claim or part is based; and
(b) there is evidence given by the plaintiff or by some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed,
the Court may, by order, direct the entry of such judgement for the plaintiff on that claim or part, as the nature of the case requires.
(2) The Court may direct the entry of judgement for damages to be assessed.
(3) “Damages” includes the value of goods.
Paragraph (a) requires evidence of the facts on which the claim is based — the contract, the delivery, the non-payment. This is proof of the claim itself.
Paragraph (b) requires a deponent — the plaintiff or some responsible person — to swear to a belief that the defendant has no defence. The rule expressly contemplates a belief that there is no defence except as to the amount of damages, which is the foundation for judgment on liability with damages to be assessed under sub-rule (2).
Both are mandatory. An application supported only by proof of the claim, without the belief evidence, does not satisfy Rule 38.
Summary judgment need not dispose of everything. Where a defendant admits owing part and disputes the rest, judgment may be entered on the admitted part and the balance go to trial — a practical route to money before trial. See getting money before trial.
Order 8 Rule 4(2)
Where, before the date on which a defendant files his defence, the plaintiff serves notice of a motion under Order 12 Rule 38 —
(a) the ordinary time for the defence shall not apply to that defendant; but
(b) if the motion does not dispose of all the claims for relief, the Court may order him to file and serve his defence before the expiry of a time fixed by the Court.
A plaintiff who moves for summary judgment early relieves the defendant of the obligation to plead in the meantime. That is fair — the defendant should not have to prepare a defence while facing an application that may end the case — but it means an unsuccessful application also costs the plaintiff time.
Rule 39
Where the Court directs the entry of judgement against a party, and that party claims relief against the party obtaining the direction, the Court may, on terms, stay execution on, or other enforcement of, the judgement until determination of the claim by the party against whom judgment is directed.
Where the defendant has a genuine cross-claim, summary judgment may still be entered — but the Court may stay enforcement until the cross-claim is decided.
So a defendant resisting summary judgment should, in the alternative, ask for a stay of execution under Rule 39(2). Note also Order 8 Rule 26: a claim to a sum of money, whether ascertained or not, may be included in the defence and set off — and a set-off pleaded as a defence is an answer to the claim itself, not merely a basis for a stay.
Other ways to end a case early
| Route | Basis | Provision |
|---|---|---|
| Summary judgment | Evidence of the facts, and belief that there is no defence | O 12 r 38 |
| Judgment on admissions | What the other party has conceded — and available notwithstanding that other questions have not been determined | O 9 r 30 |
| Default judgment | The defendant did not respond | O 12 Div 3 |
| Dismissal | No reasonable cause of action; frivolous or vexatious; abuse of process | O 12 r 40 |
| Striking out a pleading | Defects in the document | O 8 r 27 |
| Judgment by direction | At trial, the plaintiff’s evidence could not support judgment | O 10 r 14 |
Where the defendant has admitted the essentials — expressly, by failing to traverse under Order 8 Rule 21, or by not responding to a notice to admit within 14 days — Order 9 Rule 30 avoids the Rule 37 exclusions entirely, because it is not part of Order 12 Division 4.
That matters in a fraud or personal injury case, where summary judgment is unavailable but judgment on admissions is not.
Sources
- National Court Rules 1983 — O 4 r 2; O 8 rr 4, 21, 26, 27, 30, Div 7; O 9 rr 29, 30; O 10 r 14; O 12 rr 37–40, Div 3
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.