Applying for summary judgment: a two-stage test?
In a recent decision, the Supreme Court appears to have further clarified the test for determining whether a claim or defence in a civil proceeding in Victoria should be summarily dismissed. In Attalla v YWAM Surrey Hills Ltd,[1] the Court expressed the view that there is a two-stage test for courts to apply before granting summary judgment in favour of a party to a proceeding.
Applicable legislation
A party may apply for summary judgment in a civil proceeding in Victoria pursuant to the rules of the relevant court and under the provisions of the Civil Procedure Act 2010 (Vic). Part 4.4 of that Act governs such applications, and permits a plaintiff or defendant (including a plaintiff by counterclaim) to apply for summary judgment in respect of another party’s claim or defence on the basis such claim or defence (or part thereof) has ‘no real prospect of success’. (A court also has the power to give summary judgment on that measure in any civil proceeding on its own motion, that is, even where no party has sought it.[2])
Section 63(1) of the Act, which provides the power to give summary judgment, states:
Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
Section 64 states:
Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a) it is not in the interests of justice to do so; or
(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.
Judicial consideration
Much judicial attention has been dedicated to the test in section 63, in particular what is meant by the expression ‘no real prospect of success’ — most notably perhaps in the decision in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd.[3] Elsewhere, decisions have dealt with the application of the criteria in section 64 from time to time, but the question of the interaction between sections 63 and 64 appears to have been unresolved. In Manderson M & F Consulting v Incitec Pivot Ltd,[4] a decision handed down not longer after the enactment of the Civil Procedure Act, the Court of Appeal was critical of a trial judge’s failure to invoke or even consider section 64 when giving summary judgment,[5] but it is unclear whether that criticism was due to the Court of Appeal thinking it necessary, rather than merely desirable in light of the facts of that case, for the trial judge to have done so.
In Yin v Wu,[6] the Court of Appeal considered the question of whether, on a reading of sections 63 and 64, a court before awarding summary judgment must consider whether the factors in section 64 should spare a matter from summary dismissal. A subsidiary question arose: does a court need to consider the factors in section 64 if the parties to a summary judgment application do not put them in issue? The Court did not rule on those matter because, in the particular appeal before it, it was not necessary to do so. Nonetheless, the Court observed:
[O]ur view is that there is much to be said for a construction of s 63 which requires the court to consider whether the discretion under s 64 to order that a proceeding proceed to trial should be considered in every case where the court reaches the view that there is no real prospect of success. Otherwise, it is difficult to see the purpose of the introductory words to s 63(1) (‘Subject to section 64’). Reading the two sections together suggests that the discretion to give summary judgment under s 63 is subject to the court’s consideration of its discretion under s 64.[7]
On the question of whether section 64 needs to be brought to the attention of a court when considering an application for summary judgment, the Court of Appeal immediately went on to say:
On this basis, there is no requirement that express reliance be placed on s 64. Nevertheless, a person who wishes to rely on the matters in s 64 as a basis for resisting an application for summary judgment should, ordinarily, expressly rely upon them so that these matters can be addressed in argument.[8]
The decision in Attalla
In Attalla, McDonald J heard an appeal from a decision of an associate judge giving summary judgment against a plaintiff. The plaintiff appealed, arguing among other things that the associate judge had erred in law when failing to consider and apply the criteria in section 64 before summarily dismissing the plaintiff’s claims.
Justice McDonald considered that, on a reading of the associate judge’s reasons for judgment, the associate judge had not directly addressed the criteria in section 64 before awarding summary judgment.[9] In upholding that ground of appeal (although ultimately dismissing the appeal for other reasons), his Honour referred to the obiter comments of the Court of Appeal in Yin v Wu and held:
The Court of Appeal’s judgment in Wu is authority for the proposition that the exercise of discretion to order summary judgment pursuant to s 63 is subject to the Court considering matters prescribed in s 64, irrespective of whether a party resisting an application for summary judgment has placed expressed reliance upon s 64.[10]
Comment
The decision in Attalla, having applied comments previously made by the Court of Appeal, appears to have further clarified the operation of the provisions of the Civil Procedure Act in respect of applications for summary judgment. It appears to be the case now that, before giving summary judgment, a court must consider:
whether a claim or defence has ‘no real prospect of success’ according to section 63; and
even if a claim or defence has no real prospect of success, whether it still should proceed to trial under the criteria in section 64 either because ‘it is not in the interests of justice’ to give summary judgment or because ‘the dispute is of such a nature that only a full hearing on the merits is appropriate’.
Although the decision in Attalla holds that a court must consider and apply section 64 irrespective of any argument the parties might make on that point, given the role of that provision in the determination of a summary judgment application it would be prudent for parties to prepare and make submissions about how the ‘interests of justice’ and the appropriateness of a ‘full hearing on the merits’ bear upon the particular case at hand.
[1]: [2025] VSC 61.
[2]: Civil Procedure Act 2010 (Vic) s 63(2)(c).
[3]: (2013) 42 VR 27.
[4]: (2011) 35 VR 98.
[5]: Ibid 106 [27], 108 [34].
[6]: (2023) 73 VR 21.
[7]: Ibid 66 [137].
[8]: Ibid.
[9]: Attalla v YWAM Surrey Hills Ltd [2025] VSC 61, [19]–[20].
[10]: Ibid [18].