Raso & Anor v Bayliss & Ors

[2005] ACTSC 94

Supreme Court of the ACT

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Interrogate

Catchwords

1. Practice and Procedure
2. › Dismissal for want of prosecution
3. › Delay in prosecution without due cause
4. › Whether Birkett v James formulation applies as threshold test
5. › Factors to be considered in exercise of discretion
6. › Supreme Court Rules 1937 (ACT), O 33A r 1(b)
1. Practice and Procedure
2. › Dismissal for want of prosecution
3. › Explanation for delay
4. › Whether plaintiff bears persuasive burden of explaining delay
5. › Inordinate delay of 14 years
6. › Loss of documentary evidence and fading witness memory

Quick Take

Under O 33A r 1(b) of the Supreme Court Rules 1937 (ACT), the Birkett v James formulation does not create threshold conditions for dismissal for want of prosecution; the court exercises a broad discretion considering all circumstances including length of delay, explanation, prejudice, hardship, and defendant conduct. In false imprisonment claims, the defendant's burden to justify the arrest makes delay particularly prejudicial.