Smith v Commissioners of the Rural and Industries Bank of Western Australia

[2009] WASC 100

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Practice and Procedure
2. › Dismissal for want of prosecution
3. › Inordinate delay of over 22 years
4. › Forensic strategy of pursuing alternative proceedings
5. › Presumptive prejudice
6. › Whether proceedings should be dismissed
1. Practice and Procedure
2. › Election
3. › Election between inconsistent rights
4. › Proceedings against defendant and separate proceedings against former counsel for loss of opportunity to pursue claim against defendant
5. › Whether assertion of loss of opportunity inconsistent with continued prosecution of underlying claim
1. Practice and Procedure
2. › Abuse of process
3. › Fundamental inconsistency between claims in concurrent proceedings
4. › Whether continued prosecution of proceedings constitutes abuse of process where plaintiff asserts in other proceedings loss of opportunity to pursue those very proceedings
1. Practice and Procedure
2. › Intervention
3. › Leave to be heard by non-party
4. › Indirect interest in proceedings
5. › Whether intervention in interests of justice
6. › Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B

Quick Take

Where a plaintiff commences proceedings against former counsel claiming loss of the opportunity to pursue an underlying claim, the assertion of that loss of opportunity constitutes an election of rights inconsistent with the continued prosecution of the underlying claim. Continued prosecution of the underlying proceedings in those circumstances may also constitute an abuse of process. A defendant is under no positive obligation to take steps to force the plaintiff to prosecute with diligence, and the defendant's delay in bringing a dismissal application does not count against it absent an express or implied agreement to forego that right.