Summary judgment and strike out applications – game over before kickoff?

Two recent decisions in the Western Australian Courts highlight that careful consideration should be given to the facts and circumstances of a matter before either an application for summary judgment, or a strike out application, is made. 

What is a summary judgment?

Summary judgment is granted at an early stage of the proceedings in circumstances where a plaintiff can demonstrate that there is no defence to all or part of a claim1, or a defendant can demonstrate that either a plaintiff’s claim is frivolous or vexatious, or that it has a good defence on the merits.2

The Court will only examine the available evidence to determine whether a triable issue is disclosed.3  The Court will not consider in any detail whether the claim has merit, only whether there is an issue to be tried.

Accordingly, the threshold for defending a summary judgment application by either party to an action to be successfully opposed is very low.

In Westpac Banking Corporation v Anderson,4 (Westpac) the WA Supreme Court considered the significant consequences of summary judgment, and noted that:

… A party should not ordinarily be denied the opportunity to have his or her case determined following trial, and for that reason, the jurisdiction to grant summary judgment should be reserved for the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the action if it were allowed to go to trial…

A strike out application can be made if a party is able to show that the pleading, in its entirety, or in part:

  • discloses no reasonable cause of action or defence;
  • is scandalous, frivolous or vexatious;
  • may prejudice, embarrass or delay the fair trial of the action; or
  • is otherwise an abuse of the process of the Court.5

For instance, a statement of claim may be struck out for a failure to disclose a reasonable cause of action.6 In such a situation, very similar principles as set out in Westpac will apply, and a strike out application will only be granted in the clearest of cases.7

Importantly, a successful strike out application does not necessarily result in judgment being awarded as often only part of a pleading will be struck out.

In BGC Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd8, the defendant lodged a counterclaim alleging that the plaintiff was obliged to indemify the defendant against loss and damage suffered under a mining services contract.

The plaintiff sought summary judgment on the basis the defendant’s counterclaim was frivolous and vexatious, and the plaintiff had a complete defence on the merits.

In the alternative, the plaintiff sought to strike out parts of the counterclaim on similar grounds.9

Ultimately, the dispute between the parties arose from differing interpretations of the terms of the mining services contract.  

The Supreme Court found that there were questions of fact and context which should be resolved in a final hearing, and both the summary judgment and strike out applications were dismissed.

The Supreme Court’s decision in BGC was subsequently affirmed on appeal.10

The issues in the recent District Court of Western Australia case, Cox v West Australian Pork Producers11 were more straighforward. 

The plaintiff sought damages against his former employer, Western Australian Pork Producers Association in relation to unpaid wages for work performed by the plaintiff.

The defendant was able to persuade the Court that plaintiff’s case, if any, was statute-barred.

It follows that the plaintiff’s action was doomed to fail if the matter were to proceed to trial, and thus, the defendant was granted summary judgment.

Lavan comment

Parties should proceed with caution when bringing either applications for summary judgment, or to strike out pleadings as if the applications are unsuccessful they are likely to lead to adverse costs orders.

The Courts are generally unwilling to grant such applications except in the clearest of cases.

Conversely, when used in appropriately clear-cut cases such as Cox, summary judgment can lead to a swift and cost-effective resolution of a matter.

If you have any questions in relation to this article, please contact Iain Freeman or Lorraine Madden.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.
Iain Freeman
Corporate Disputes & Investigations
Litigation & Dispute Resolution


[1] Rules of the Supreme Court 1971 (WA) Order 14 rule 1(1)

[2] Rules of the Supreme Court 1971 (WA) Order 16 rule 1(1)

[3] Wickstead v Browne (1992) 30 NSWLR 1

[4] Westpac Banking Corporation v Anderson [2017] WASC 106 at [50]

[5] Rules of the Supreme Court 1971 (WA) Order 20 rule 19(1)

[6] Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No. 6414; 25 August 1986

[7] Packard v Transport Trading and Agency Co Ltd (1912) 14 WALR 191 per Burnside J at p 195.

[8] [2019] WASC 248

[9] See 9 supra at [40]]

[10] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107

[11] [2020] WADC 68