Nyoni v Shire of Kellerberrin (No 2) [2012] FCA 1477

Nyoni v Shire of Kellerberrin (No 2) [2012] FCA 1477

Substantial parts of the substituted statement of claim were struck out for failing to disclose reasonable causes of action or compliance with pleading rules. Consent orders made on 12 March 2012 (relating to leave to amend originating application) were set aside as they were made after the applicant had withdrawn authority from pro bono counsel. The discontinuance against the fourth respondent was effective upon filing by counsel and is not set aside at this stage, as the applicant failed to demonstrate a viable claim. The matter is to proceed by statements of facts, issues, and contentions instead of pleadings, and the applicant will have an opportunity to clarify potential viable...

Jurisdiction
Australia
Judgment Date
21 December 2012
Procedural Posture
Application to Strike Out Statement of Claim and Set Aside Consent Orders / Interlocutory (application to Strike Out Pleadings, Set Aside Orders, and Address Discontinuance)
Outcome
Application to strike out granted in substantial part; paragraphs of statement of claim struck out; order for further amended originating application set aside; discontinuance as to fourth respondent remains; costs reserved for further submissions; matter to proceed by statements of facts, issues, and contentions;...
Legal Topics
['striking Out Pleadings' 'setting Aside Consent Orders' 'discontinuance' 'pleadings Requirements' 'jurisdiction']
['practice and Procedure'] ['striking Out Pleadings' 'setting Aside Consent Orders' 'discontinuance' 'pleadings Requirements' 'jurisdiction']

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Procedural Posture

Application to Strike Out Statement of Claim and Set Aside Consent Orders / Interlocutory (application to Strike Out Pleadings, Set Aside Orders, and Address Discontinuance)

Legal Issues

  1. 1 ['Whether paragraphs of the substituted statement of claim should be struck out for failing to disclose a reasonable cause of action or for being embarrassing' 'Whether the consent orders made on 12 March 2012 (giving leave to file a further amended originating application and discontinuing the claim against the fourth respondent) should be set aside' 'Whether the applicant should be relieved from paying costs upon discontinuance against the fourth respondent']

Ratio Decidendi

Substantial parts of the substituted statement of claim were struck out for failing to disclose reasonable causes of action or compliance with pleading rules. Consent orders made on 12 March 2012 (relating to leave to amend originating application) were set aside as they were made after the applicant had withdrawn authority from pro bono counsel. The discontinuance against the fourth respondent was effective upon filing by counsel and is not set aside at this stage, as the applicant failed to demonstrate a viable claim. The matter is to proceed by statements of facts, issues, and contentions instead of pleadings, and the applicant will have an opportunity to clarify potential viable...

Court Disposition

Application to strike out granted in substantial part; paragraphs of statement of claim struck out; order for further amended originating application set aside; discontinuance as to fourth respondent remains; costs reserved for further submissions; matter to proceed by statements of facts, issues, and contentions;...

Orders

  • ["The following paragraphs of the applicant's substituted statement of claim are struck out: 6.6, 6.7, 6.8, 9.1 (all but the first sentence), 9.2, 9.3, 9.4, 10 to 42 (inclusive), 46.4, 46.5, 46.6, 46.7, 62, 65, 66 and 67, as are all claims made in the prayer for relief which rely upon those paragraphs." 'The order...