Application for summary judgment pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Vic)
Whether the plaintiff’s claims have a real prospect of success
Novel duty of care
Quick Take
1Fellow membership of an unincorporated political party does not of itself give rise to a duty of care; a plaintiff must establish a duty by reference to ordinary common law negligence principles including the salient features analysis, applied incrementally and analogically.
2Where a plaintiff pleads no facts capable of establishing actual or constructive knowledge of risk, assumption of responsibility, or control over the tortfeasor on the part of a particular defendant, the negligence claim against that defendant has no real prospect of success and summary judgment is appropriate.
3Particulars cannot be used to fill gaps or correct errors in a deficient pleading; where inconsistencies between the statement of claim and further particulars are numerous and affect significant parts of the pleading, the appropriate course is to strike out the whole of the relevant portion with leave to re-plead.
