BOEHM V. HAYES & ORS. 60/1984

JUDGMENT 277. (AFL

BOEHM

HAYES & ORS

DAWSON J.

19 $4-vbe

BOEHM

HAYES & ORS

This is an application under Order 26, Rule 18 of the Rules of Court for an order striking out the plaintiff's Amended Statement of Claim on the ground that it does not disclose a reasonable cause of action and for an order that the action be dismissed and judgment entered for the defendants. There is an alternative application under Order 63, Rule 2 that the proceedings be stayed on the ground that there is not a reasonable or probable cause of action or suit, but it was not suggested that the alternative application was based upon any different considerations to the application under Order 26, Rule 18 and, upon the view which I have formed, it is unnecessary to pursue the

alternative application separately.

The application under Order 26, Rule 18 is an ,; application upon the pleadings and does not seek to invoke "the inherent jurisdiction of the Court to prevent abuse of its process. It is an application which involves two steps, the first of which is to show that there is no reasonable

eause of action disclosed and the second of which is to show

that the cause of action alleged is frivolous or vexatious.

No doubt in many cases the two steps may be considered together because, having regard to the sparing use which is made of the first step, if there is no reasonable cause of action this fact will provide a sufficient indication ,that further pursuit of the action is frivolous or, at least,

vexatious.

A statement of claim should only be struck out under the rule where it is clear that no cause of action is disclosed. The procedure is not a substitute for demurrer or raising a question of law under Order 26, Rule 16. Various expressions have been used to describe what constitutes a elear case justifying the summary dismissal of an action and