Joseph v Kiama Municipal Council and Ors [2023] NSWLEC 148

Joseph v Kiama Municipal Council and Ors [2023] NSWLEC 148

The summons, as pleaded, discloses no reasonable cause of action for bias or denial of procedural fairness regarding Council's consideration of the development application. Most claims are misconceived, improperly targeted, or in a form the Court could not grant. However, claims alleging bias or denial of procedural fairness in paragraphs 4(a)(viii) and 4(b) are not so obviously untenable as to warrant total preclusion; the applicant is given leave to replead those claims only.

Jurisdiction
Australia
Judgment Date
22 December 2023
Procedural Posture
Notice of Motion for Summary Dismissal or Strike Out in Judicial Review Proceedings / Interlocutory—application to Summarily Dismiss or Strike Out; Judgment on Motion
Outcome
Summons summarily dismissed; limited leave to replead granted; costs reserved.
Legal Topics
['summary Dismissal' 'strike Out' 'bias' 'procedural Fairness' 'declaratory Relief' 'leave to Replead']
['civil Procedure' 'administrative Law' 'planning Law'] ['summary Dismissal' 'strike Out' 'bias' 'procedural Fairness' 'declaratory Relief' 'leave to Replead']

Case Brief

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Procedural Posture

Notice of Motion for Summary Dismissal or Strike Out in Judicial Review Proceedings / Interlocutory—application to Summarily Dismiss or Strike Out; Judgment on Motion

Legal Issues

  1. 1 ['Whether the summons discloses a reasonable cause of action for bias or denial of procedural fairness' 'Whether the proceedings are so defective as to warrant summary dismissal or striking out' 'Whether leave should be granted to replead limited claims']

Ratio Decidendi

The summons, as pleaded, discloses no reasonable cause of action for bias or denial of procedural fairness regarding Council's consideration of the development application. Most claims are misconceived, improperly targeted, or in a form the Court could not grant. However, claims alleging bias or denial of procedural fairness in paragraphs 4(a)(viii) and 4(b) are not so obviously untenable as to warrant total preclusion; the applicant is given leave to replead those claims only.

Court Disposition

Summons summarily dismissed; limited leave to replead granted; costs reserved.

Orders

  • ['Pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) the summons filed 28 August 2023 is summarily dismissed.' 'Leave is granted to the applicant to replead (only) the claims in paragraphs 4(a)(viii) and 4(b) of the summons.' 'Costs are reserved.']