Maule v Liporoni & Anor [2001] NSWLEC 141

Maule v Liporoni & Anor [2001] NSWLEC 141

The applicant's claims were not inevitably untenable merely because of s 101 of the Environmental Planning and Assessment Act 1979. The pleaded and foreshadowed arguments concerning jurisdictional fact, ultra vires action, mala fides and the scope of the Hickman principle at least admitted of argument and raised issues not appropriate for final determination on a strike out motion. The Court was therefore not satisfied that it was imperative to strike out the applicant's claim.

Jurisdiction
Australia
Judgment Date
04 July 2001
Procedural Posture
Class 4 Proceedings Seeking Declarations and Orders Concerning the Validity of a Development Consent / First Respondent's Notice of Motion to Dismiss or Strike Out the Applicant's Claim Under Pt 13 R 5(1)(a) of the Supreme Court Rules 1970
Outcome
First respondent's notice of motion dismissed; costs reserved.
Legal Topics
['validity of Development Consent' 'privative Clause' 'hickman Principle' 'jurisdictional Fact' 'summary Dismissal' 'threatened Species Assessment' 'integrated Development' 'mala Fides']
['planning and Environment Law' 'administrative Law' 'civil Procedure'] ['validity of Development Consent' 'privative Clause' 'hickman Principle' 'jurisdictional Fact' 'summary Dismissal' 'threatened Species Assessment' 'integrated Development' 'mala Fides']

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Procedural Posture

Class 4 Proceedings Seeking Declarations and Orders Concerning the Validity of a Development Consent / First Respondent's Notice of Motion to Dismiss or Strike Out the Applicant's Claim Under Pt 13 R 5(1)(a) of the Supreme Court Rules 1970

Legal Issues

  1. 1 ['Whether s 101 of the Environmental Planning and Assessment Act 1979 prevented the validity of the development consent from being questioned because the proceedings were commenced outside the specified 3 month period.' "Whether the applicant's pleaded allegations of jurisdictional error, ultra vires action and mala fides could avoid the operation of the privative clause by application of the Hickman principle." "Whether the applicant's claim disclosed no reasonable cause of action and was so untenable that it should be dismissed summarily."]

Ratio Decidendi

The applicant's claims were not inevitably untenable merely because of s 101 of the Environmental Planning and Assessment Act 1979. The pleaded and foreshadowed arguments concerning jurisdictional fact, ultra vires action, mala fides and the scope of the Hickman principle at least admitted of argument and raised issues not appropriate for final determination on a strike out motion. The Court was therefore not satisfied that it was imperative to strike out the applicant's claim.

Court Disposition

First respondent's notice of motion dismissed; costs reserved.

Orders

  • ['The notice of motion by the first respondent is dismissed.' 'The question of costs on the notice of motion is reserved.']