Can Claims Be Summarily Dismissed?
In Harris v Bennett & Others an Application by Defendant’s Counsel that the claim against the Estate could be dismissed pursuant to Order 23 was agreed to. Whilst the decision was confirmed on the law, it was reversed on the facts by Justice McDonald a short time later. In the years that followed, the view was taken that these Applications were essentially hopeless and would merely serve to harden the resolve of the Plaintiff with a marginal case when the application for summary judgment was dismissed.
Until the decision in Jackson v Newns  VSC 32, this was the prevailing view. Here an application by a nephew who had received substantial but minority provision from his uncle’s estate was dismissed on the basis that a great relationship didn’t translate into responsibility for provision being owed. This case involved an application by a nephew of the deceased who was left approximately $150,000.00 under his uncle’s Will. He claimed on the basis that his uncle had been more akin to a father to him. It was held that a great relationship didn’t create an obligation to make testamentary provision and in the circumstances of that case, certainly didn’t create an obligation to make provision beyond the six figure sum provided by the Will.
The claim in Jackson was dismissed under the old test which required the claim to be practically hopeless before it would be dismissed. Under section 63 of the Civil Procedure Act 2010 the test has been restated and moderated to be that there is no real prospect of success. This has been interpreted as requiring a claim to have a real, rather than a fanciful prospect of success and theoretically lowers the bar that defendants have to jump to strike claims out.
However, section 64 of the Civil Procedure Act 2010 also provides that even if a claim has no real prospect of success, the Court may permit it to proceed to trial if it is appropriate that it do so or it is in the interests of justice that it do so.
Despite the existence of section 64, it was thought that the Courts would if anything be more willing to exercise their power of summary dismissal. However, it would appear that this has not been the case. While Jackson sparked a flurry of applications, the bulk of those that have been decided to date have been unsuccessful.
Other relevant cases are Wollensack v Leone  VSC 324, Storey v Semmens  VSC 305, Webb v Ryan  VSC 461, Estate of Polley and Colville v Edmunds  VSC 85.
In conclusion, the concept that apparently weak claims will not make it past the summary stage has not materialised despite Jackson v Newns. Legal commentators believe that unless the circumstances said to ground the claim are self evidently unarguable or ridiculous, there is no point in subjecting the client to the costs of an unsuccessful application and giving the plaintiff a second wind before mediation. Where an application is to be made however it should be made early on in the proceeding.