The Hancock Family Memorial Foundation Ltd v Fieldhouse

71 ALR 294; [2005] WASCA 93

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Dismissal for want of prosecution
3. › Principles governing exercise of discretion
4. › Whether Birkett v James principles are mandatory test or guidelines
5. › Whether delay inordinate
6. › Whether defendant acquiesced in delay
7. › Rules of the Supreme Court 1971 (WA), O 33 r 2
1. Practice and Procedure
2. › Dismissal for want of prosecution
3. › Acquiescence by defendant
4. › Effect of defendant's tacit acceptance of delay on exercise of discretion
5. › Whether periods of acquiescence should be excluded from relevant delay
1. Appeal
2. › Appeal from exercise of discretion
3. › Interlocutory order
4. › Leave to appeal
5. › Whether decision attended with sufficient doubt
6. › Whether substantial injustice if unreversed
7. › House v The King principles
8. › Supreme Court Act 1935 (WA), s 60(1)(f)
1. Practice and Procedure
2. › Case management
3. › Relationship between case management principles and dismissal for want of prosecution
4. › Whether case management is an end in itself
5. › Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B

Quick Take

The Birkett v James principles for dismissal for want of prosecution are guidelines, not a mandatory test; the court retains an unfettered discretion to be exercised in the interests of justice. Where a defendant acquiesces in a plaintiff's delay — even tacitly, without formal agreement — the periods of acquiescence should not be counted as inordinate delay attributable to the plaintiff. A tactical decision to delay proceedings in favour of pursuing related claims for the same loss is distinguishable from delay for the purpose of obtaining a defendant's cooperation in unrelated proceedings.