Wheelahan v City of Casey (No 3)

Wheelahan v City of Casey (No 3) is a case concerning an application to strike out a plaintiff's claims against the City of Casey on the basis of no real prospect of success. The dispute revolves around the plaintiff's allegation of negligence by the City of Casey in relation to the construction of a road. The Supreme Court of Victoria was tasked with determining whether the plaintiff's claims had no real prospect of success and whether they should be struck out. The primary legal issues addressed by the court were the interpretation and application of the 'no real prospect of success' test under the Civil Procedure Act 2010, and whether the plaintiff's claims constituted pure economic loss arising from negligent misstatement. The court considered whether the questions raised were appropriate for a trial or if they could be determined at the summary judgment stage.

The court examined the test for determining whether a claim has no real prospect of success. It noted that this test may extend to cases that are not considered hopeless enough to warrant striking out under the rules. The court referenced previous cases and statutes, such as Dey v Victorian Railways Commissioners, Jefferson Ford Pty Ltd v Ford Motor Company, and Swain v Hillman, to understand the scope of the term 'no real prospect of success.' The court also considered the overarching purpose of the Civil Procedure Act 2010 and the High Court's decision in Spencer v The Commonwealth. In its reasoning, the court emphasised the importance of exercising the power to summarily terminate proceedings with caution, particularly when considering propositions of law that may contradict binding decisions of higher courts.

The court concluded that the plaintiff's claims did not have no real prospect of success, and therefore, the application to strike out the claims was dismissed. The court found that there was a substantial dispute as to whether the claims constituted pure economic loss arising from negligent misstatement, and that these questions were appropriate for a trial. The court also noted that questions not materially affecting the evidentiary matrix likely to be adduced at trial would not warrant a full hearing on the merits. The court emphasised that the 'no real prospect of success' test should be applied in accordance with the overarching purpose of the Civil Procedure Act 2010, and that summary processes should not be used to stultify the development of the law.