Summary trial applications (Rule 9-7) are a useful tool. They allow cases that do not need a full trial with witnesses to be heard and decided by a judge in a simpler manner. Most notably, time is saved because evidence is presented by affidavits. This can save a huge amount of time as compared to a traditional trial.
Summary trials are appropriate in cases where the Court is able to determine the facts of the case through written documents only and there is no need to fully present evidence through the testimony and cross-examination of witnesses. An application strike is a “chambers proceedings”. For more information on bringing an application to chambers, see Chambers Applications and Affidavits.
In a summary trial application, the judge must first determine that the case is appropriate for summary trial. If the case is suitable for a summary trial, evidence is given by affidavit rather than in person and the trial is dramatically shortened.
Like a summary judgment, a summary trial is based on affidavit evidence. However, in a summary trial, you may also present other written evidence to the Court. This evidence could include:
- Answers to interrogatories
- Selected questions and answers from examinations for discovery
- Admissions made in response to a notice to admit and
- Expert reports
Because this evidence is so important to your case, you may want to consult a lawyer about how much and what type of evidence you should use at the summary trial. A lawyer will be able to advise you about whether you need an expert report or opinion, whether you should include interrogatories or examination for discovery questions and answers, and the form in which they should be presented. For information on finding legal help, see Get Help.
A summary trial can result in a judgment even if there is a dispute between the parties about the facts behind the claim or the defence to the claim. This is different than a summary judgment, which is only given if there is no outstanding issue that needs to be resolved.
You can apply for a summary trial after the response to the claim that is the subject of the summary trial application has been filed.
If you bring a summary trial application and the Court agrees the matter is appropriate to be heard in that way, it is just like an ordinary trial in that you could win or lose. This is different from a summary judgment application, where if you are unsuccessful, you simply go back to moving towards a full trial. Bringing a summary trial application could mean that the Court will find against you and grant judgment.
Summary trials are heard by a judge and although they are meant to be short, they generally require more than 2 hours. This means that the date and time of the hearing must be fixed by the Scheduling. For more information see Chambers Applications.
Masters cannot hear summary trials. If you already have a trial date, note that a summary trial application must be heard by the Court at least 42 days before the scheduled trial date (see Rule 9- 7(3)). You will have to take this into account in scheduling a date to have the application heard.
Evidence in a Summary Trial Application
Summary trials rely on written evidence, so make sure that your written evidence is complete and accurate. It is crucial to your case. The Court takes your evidence – affidavits, interrogatory answers, expert reports or opinions, and examination for discovery questions and answers – and uses it to make a final judgment on the issues.
In a summary trial you are asking the Court to make a final order. For that reason, the person who swears any affidavit supporting your application must have direct knowledge of the facts contained in the affidavit. In other words, the person swearing the affidavit should not give evidence about facts that someone else told them.
Make sure your affidavits:
- Are organized in a way that makes sense
- Are easy to read and grammatically correct
- Are concise and to the point, but contain all the facts required and
- Set out the facts in chronological order
For more information on preparing affidavits, see Affidavits.
You can also provide to the Court relevant interrogatory answers and examination for discovery questions and answers. Do not include entire transcripts, but make sure that the information:
- Is well organized
- Includes everything needed to prove your position
- Does not include anything that is not needed
- Puts the questions and answers together and numbers them and
- Is easy to read
For more information on interrogatories and examinations for discovery, see Discovery.
Bring the original discovery transcript with you in case the Court requests it. You can also provide expert reports or opinions to the Court. For further information about expert reports see the Expert Witnesses.
What You Need for Your Application
In general, you will need the following documents to apply for summary trial:
- A notice of application (Form 32)
- Supporting affidavits and
- An application record (see Rule 8-1(15))
See Chambers Applications for further helpful information about how to prepare for a chambers application.
What Can the Court Order?
At the summary trial, the Court may:
- Grant judgment in favour of any party, on either part of the claim or all of the claim
- Impose terms about enforcement of the judgment (such as when it must be paid) or
- Award costs (see Costs).
If the judge is not able to grant judgment, the judge may order that a full trial be held or:
- Order that the parties attend a case planning conference (see Case Planning Conference)
- Make any order that could be made in a case planning conference or
- Make any other order that furthers the object of the Rules