Fokas v Kogarah City Council and Anor [2008] NSWLEC 98

Fokas v Kogarah City Council and Anor [2008] NSWLEC 98

The Applicant's motion sought to set aside a perfected final order dismissing her Class 4 application. Although the motion was filed within 14 days of entry, UCPR r 36.16(3) excludes the Court's power to set aside or vary an order so far as it dismisses proceedings, and none of the circumstances in r 36.16(2) applied. The Court therefore could not entertain the Notice of Motion to revive the dismissed proceedings.

Jurisdiction
Australia
Judgment Date
03 March 2008
Procedural Posture
Class 4 Application; Notice of Motion to Set Aside Dismissal / Ex Tempore Judgment on Applicant's Notice of Motion Dated 5 February 2008
Outcome
Applicant's Notice of Motion dismissed.
Legal Topics
['power to Set Aside or Vary Entered Final Orders' 'finality of Litigation' 'class 4 Proceedings' 'environmental Planning and Assessment Act Notification and Designated Development Allegations' 'electricity Supply Act Jurisdiction']
['practice and Procedure' 'planning and Environment'] ['power to Set Aside or Vary Entered Final Orders' 'finality of Litigation' 'class 4 Proceedings' 'environmental Planning and Assessment Act Notification and Designated Development Allegations' 'electricity Supply Act Jurisdiction']

Case Brief

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Procedural Posture

Class 4 Application; Notice of Motion to Set Aside Dismissal / Ex Tempore Judgment on Applicant's Notice of Motion Dated 5 February 2008

Legal Issues

  1. 1 ["Whether the Court had power under the Uniform Civil Procedure Rules 2005 to set aside a perfected final order dismissing the Applicant's Class 4 application." 'Whether the Applicant could revive dismissed Class 4 proceedings by Notice of Motion raising alleged failures to consider affidavit material and alleged statutory non-compliance.']

Ratio Decidendi

The Applicant's motion sought to set aside a perfected final order dismissing her Class 4 application. Although the motion was filed within 14 days of entry, UCPR r 36.16(3) excludes the Court's power to set aside or vary an order so far as it dismisses proceedings, and none of the circumstances in r 36.16(2) applied. The Court therefore could not entertain the Notice of Motion to revive the dismissed proceedings.

Court Disposition

Applicant's Notice of Motion dismissed.

Orders

  • ["The Applicant's Notice of Motion dated 5 February 2008 should be dismissed."]