Posts
Basic about Summary judgment
Monday, November 29, 2010
Example: I would like to obtain judgment from the court without trial because the defendant has no defence and there is no triable issues.
The summary judgment provided in Order 14 of the Rules of The High Court 1980. The procedure is to enable plaintiff to obtain early judgment in cases where the defendant has no hope of success and any defence he raises would merely have the effect of delaying judgment (Jones v Stone). The summary judgment must file when the defendant has enter the appearance.
Reasons for summary judgment:
1. such defence is just a mock defence (pembelaan olok-olok)
2. that defence only a mere denial
3. there is no triable issues
What is 'triable issues' ?
It is an issue that the court cannot decided without hearing the disputes (defences and evidences) from both parties and if made, it will causes injustice to the other parties.
When to file the summary judgment?
If has been seen in the brief that the defendant cannot defend themselves. For example, in civil action (summon) by bank, where the debtor failed to pay the debts within the promised period. So, the plaintiff will file the summon in chamber for summary judgment. So, now, the summary judgment has to be heard by judge (in chamber), not in open court.
So, in that situation, the plaintiff must prove the case on the probability (must prove that the defendant has no defence). The plaintiff must prove it by supporting an affidavit that the defendant has no defence. Examples, all below should be exhibits:
1. the loan agreement become exhibit of affidavit
2. attach/show the receipt of loan payments
3. attach the reminders from the bank
4. attach the notice of demand
So, the plaintiff will show to the court that there is a cause of action to sue the defendant. ( the cause of action is the plaintiff has right to sue the defendant because the defendant failed to pay the credit).
When the summon in chamber has been submitted, the judge will read all the document, so, if there is the triable issue, or for example if the defendant has the reason that the bank has give him the re-schedule of the loan, the plaintiff cannot obtain the summary judgment. ( the court will set a side the summary judgment, but it does not mean that the plaintiff has lost the case, but the judgment will be given after the trial of the case. However, if the court held that the defendant has no defence, plaintiff will obtain the summary judgment after the court hearing the case in chamber.
