Dismissal for lack of progress

[2-2400] Power under the rules

If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit: r 12.7(1).

If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit: r 12.7(2).

Rule 12.7 relates to the prosecution of proceedings with due despatch not to the commencement of proceedings with due despatch: Reimers v Health Care Complaints Commission [2012] NSWCA 317 at [5], [24]–[27].

What follows deals predominantly with r 12.7(1).

[2-2410] Applicable principles

It has been held that CPA s 56 (just, quick and cheap resolution of real issues), s 57 (objects of case management), s 58 (dictates of justice), s 59 (elimination of delay) and s 60 (costs to be proportionate) apply: A & N Holdings NSW Pty Ltd v Andell Pty Ltd [2006] NSWSC 55; Phornpisutikul v Mileto [2006] NSWSC 57. It has been said, in this connection, that these provisions give rise to a “new regime” and that some previous decisions may not be relevant: A & N Holdings, above at [27], citing Price v Price [2003] 3 All ER 911 at 920–21.

There are no rigid rules. In particular, there is no rule that the plaintiff’s default must be intentional or contumelious or amount to inordinate and inexcusable delay: Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274, per Heydon JA at [51]. Nor that the fault of the plaintiff’s solicitor in causing delay should, as a matter of course, be attributed vicariously to the plaintiff (Stollznow v Calvert [1980] 2 NSWLR 749, per Moffitt P at 751–2); nor that a defendant is entitled to contribute to delay by “letting sleeping dogs lie” (ibid).

The interests of justice is the primary consideration. In Stollznow, above at 751, Moffitt P adopted the following passage from the judgment of Walsh J in Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 412:

[A] balance must be struck as between the plaintiff and the defendant and, in the end, “the court must decide whether or not on balance justice demands that the action should be dismissed”.

This approach was affirmed in Micallef v ICI Australia Operations, above, per Heydon JA at [62], applying State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 (which maintains the primacy of the interests of justice).

Any explanation or excuse offered for the delay is a relevant consideration: Witten v Lombard, above, at 412.

Whether or not there is particular prejudice to the opposing party by reason of the delay is a relevant consideration: Witten v Lombard, above, at 412.

That inappropriate delay or behaviour by a plaintiff may be a function of the plaintiff’s mental state, which may itself be in part a function of the alleged tortious conduct, is a relevant consideration: State of New South Wales v Plaintiff A [2012] NSWCA 248 at [18], [82].

For more particular considerations, see State of New South Wales v Plaintiff A, above, and Ritchie’s at [12.7.5]; Thomson Reuters at [r 12.7.40]. Of the cases there cited, see particularly Hoser v Hartcher [1999] NSWSC 527, per Simpson J at [19]–[30].

Section 91 of the CPA provides that dismissal of proceedings does not, subject to the terms on which the order is made, prevent the plaintiff from bringing fresh proceedings. This is a relevant consideration (unless fresh proceedings would be statute barred): A & N Holdings, above.

Similarly, unless the court otherwise orders, a defendant may seek leave to file an amended defence following an order striking out a defence.

[2-2420] Cognate power

Where there has been a failure to comply with a direction, CPA s 61 provides a cognate power to dismiss proceedings or strike out a defence: Phornpisutikul v Mileto, above.

The same considerations as are mentioned above in relation to r 12.7 would appear to apply to the operation of s 61 in this respect.

As mentioned above, s 91 provides that dismissal of proceedings does not prevent the plaintiff from bringing fresh proceedings, subject to the terms on which the order is made. It is open to the court, in an appropriate case, to prevent the plaintiff from bringing fresh proceedings by an order for the entry of judgment.

Similarly, striking out a defence does not automatically result in judgment for the plaintiff but, pursuant to r 12.7(2), the court may, in an appropriate case, make an order to that effect:

[2-2430] Costs

Rule 42.20 of the UCPR provides that, where any order of the kind reviewed above is made, the losing party must pay the successful party’s costs of the proceedings to the extent specified in the rule, unless the court otherwise orders. There is accordingly no need to make an order in relation to the costs of the proceedings, unless the court is of the opinion that there should be a result in that regard which is different from the result provided for in the rule.

The costs of the application are not the subject of r 42.20 and should be dealt with by order in the ordinary way.

Legislation

  • CPA ss 56, 57, 58, 59, 60, 61, 91

Rules

  • UCPR rr 12.7, 12.7(1), 12.7(2), 42.20