The court considered a summons to strike out a notice of appeal. The respondent, as applicant in this case, applied to the court for an order that the notice of appeal be struck out with costs on the grounds that it was obviously frivolous, vexation and an abuse of process. The respondent (applicant), contended that the appeal was not competent as it purported to bring up matters that were not raised in the court below for the assessment hearing.
The court considered whether the appeal was admissible or whether it constituted an abuse of process and should be struck out. It was held that the respondent (applicant) needed to satisfy the court that the grounds of appeal were obviously frivolous, vexation and an abuse of process.
The court found that the appellant was not challenging the judgement or liability, but merely the quantum of damages arrived at following the assessment of damages. This, the court held, could not be interpreted as an attempt to re-litigate the matter, as the respondent (applicant) alleged. The court, therefore, concluded that it could not be said with any degree of certainty that the appeal was obviously frivolous, vexation and an abuse of process.
Accordingly, the application failed and each party was ordered to bear its own costs.