The Supreme Court (Chapter I Summary Judgment Amendment) Rules 2015 and the County Court (Chapter I Amendment No. 9) Rules 2015 commenced operation on 4 and 18 May 2015, respectively. They have amended the rules governing applications for summary judgment in the County Court and Supreme Court of Victoria.

The amendments have reframed Order 22 of the rules such that all summary judgment applications must now be made under the Civil Procedure Act 2010 (CPA). Such applications can no longer be made pursuant to the old version of Order 22.

Under the old Order 22, an application for summary judgment could be made by a plaintiff if the defendant had no defence. At the hearing, the defendant needed to establish that there was a question that ought to be tried. A defendant would not be deprived of his or her right to trial unless the relevant defence was hopeless or bound to fail.

Under the CPA, the test for summary judgment is different. Summary judgment will be granted to a plaintiff under the CPA if a defendant’s defence has no real prospect of success. The Explanatory Memorandum to the CPA notes that the Victorian Law Reform Commission considered that the summary judgment test needed to be liberalised to help the courts dispose of claims or defences that were unmeritorious at an early stage.

In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158, the Court of Appeal analysed and compared the test under the (now old) rules with the test under the CPA.  It held that, under the CPA, the test is whether the defendant had a real, as opposed to a fanciful, chance of success.  The Court of Appeal observed that the test under the CPA "is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test …. and, therefore, permits of the possibility that there might be cases… in which it appears that, although the … case is not hopeless or bound to fail, it does not have a real prospect of success."

The decision of Campaspe Investments Pty Ltd v PBP Accounting Solutions Pty Ltd [2015] VSC 26 is an example of such a case.  In Campaspe, the Honourable Associate Justice Daly held that the defence was not hopeless or bound to fail, but it did not have a real prospect of succeeding at trial.  Had the application been made under the old version of Order 22 it would have failed, as the defence did have a 'sliver of a chance'.  However, as the application had been made under the CPA and the more liberalised 'no real prospect of success' test applied, the application for summary judgment was successful. 

As a result of the amendments, there is no longer a separate right to apply for summary judgment under the rules; applications for summary judgment are now only to be made pursuant to the provisions of the CPA. Accordingly, the old (more stringent) test for summary judgment has been dispensed with. It should be noted that practitioners will still need to have regard to the new Order 22, as it sets out the procedure to be adopted when an application for summary judgment is made under the CPA.