Application to strike out appellant's notice of appeal
pursuant to Rule 171 of the Uniform Civil Procedure Rules 1999
(UCPR) – or, in the alternative, orders pursuant to r 293 of
the UCPR that summary judgment be given for the co-respondent
against the appellant in respect of all or part of the
appellant's notice of appeal – tests to be applied -
whether appellant's grounds of appeal disclose no reasonable
cause or are otherwise frivolous or vexatious
Facts: This was an application to strike out a
submitter appeal (in whole or in part), or in the alternative, seek
summary judgment (in whole or in part) against the respondent /
appellant. On 21 December 2011 the respondent / appellant appealed
to the Planning and Environment Court against the respondent
council's decision to approve the applicants /
co-respondents' development application.
The respondent / appellant's grounds for appeal against the
development application covered issues relating to boundaries of
Crown land and public roads, the density of additional lots, the
presence of parklands, koala and wildlife habitat, traffic and
flooding areas. The applicants / co-respondents sought to have the
appeal struck out.
The Planning and Environment Court Rules 2010 did not
expressly provide for the striking out of appeals or for the
granting of summary judgment.
Decision: The Court held that:
rules 171 and 293 of the UCPR can be relied upon in the
Planning and Environment Court to strike out pleadings or give
summary judgment where the grounds of appeal are manifestly
unarguable and disclose no reasonable cause of action
with the exception of the flooding issues, the respondent /
appellant's grounds of appeal were manifestly unarguable and
disclosed no reasonable cause of action and therefore those grounds
were struck out
as the grounds of appeal relating to flooding were arguable
(and were not clearly doomed to failure), it would not be
appropriate to give judgment in favour of the applicants /
co-respondents in respect of part only of the appeal.
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