graesser j

7.3: Summary Judgment (Application and decision)
13.18: Types of affidavit

Case Summary

The Plaintiff applied unsuccessfully for Summary Judgment before a Master, and subsequently appealed the Master’s Decision to Justice Graesser. Graesser J. reviewed the law on Summary Judgment and noted that the Courts had undertaken a fresh approach to Summary Judgment, and had effectively eliminated the old test of “beyond doubt” or “plain and obvious”. The Court’s new approach is to look at the record and decide whether it is essential that the Court hear viva voce evidence in order to resolve the dispute. If the answer is yes, the matter must go to Trial. If the answer is no, the Court is to engage in a multistage process which includes: presuming that the best evidence from both sides is before the Court; asking whether a negative inference can be drawn from the absence of evidence on certain points; looking at the complete package and asking whether all the evidence is admissible (for example, Rule 13.18(3) states that hearsay cannot be used for a final Application); asking whether there is a conflict in evidence and if so, whether (a) the conflict has been resolved on cross-examination or (b) whether the evidence giving rise to the conflict is purely self-serving and otherwise unsupported; and examining the evidence and assessing the sufficiency of the evidence.

Assessing the sufficiency of the evidence will also involve considering whether the issue can fairly be decided on the factual record before the Court, keeping in mind that “Summary Judgment is no longer to be denied solely on the basis that the evidence discloses a triable issue”. Rather:

…the question is whether there is in fact any issue of “merit” that genuinely requires a trial, or conversely whether the claim or defence is so compelling that the likelihood it will succeed is very high that it should be determined summarily.

After reviewing the evidence, Justice Graesser allowed the Appeal and granted Summary Judgment in favour of the Plaintiff.

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