Wheelahan v City of Casey & Ors (No 3)  VSC 15 (Wheelahan) is one of the first matters which considers this new test for summary judgment under the CPA.
Wheelahan is a class action brought in the Supreme Court of Victoria against the City of Casey and other defendants by landowners for loss and damage suffered by the release of landfill gas from a municipal tip adjoining the landowners' properties. The landowners and City of Casey made allegations against a landfull gas extraction company called LMS. The first two allegations were for negligent mis-statement and the third was for negligent design. LMS applied to have the first two allegations struck out.
In its application LMS relied on the new summary judgment procedure under the CPA, saying that these allegations had 'no real prospect of success'. Specifically, LMS relied on s63 of the CPA and the Court dismissed the application. The Court was not satisfied that the allegations had no real prospects of success and required the matters to be fully heard on the merits.
The Court made some useful comments about the new test, including:
- That it is an increased scope to the 'sufficiently hopeless' test, at .
- That the power is to be exercised in accordance with the overarching purpose, at .
- That the power must be exercised with caution, at  and .
- That even if the discretion in s63 is enlivened, it may not be appropriate to exercise it because of the provisions of s64, at .
The Court also engaged in a useful analysis of negligent mis-statement from .