The surest guide to the exercise of the discretion to dismiss for want of prosecution under UCPR r 12.7 is careful attention to the Civil Procedure Act 2005 (NSW) ss 56-60, and pre-2005 authority such as Hoser v Hartcher, while still a valuable guide, must not be treated as statute and must be read subject to the statutory regime. Primary judges should exercise their discretions robustly in accordance with the statutory policy of requiring due diligence in prosecution of claims. The absence of demonstrated prejudice to the defendant does not preclude dismissal where the history of the proceedings demonstrates a failure to prosecute with due diligence.
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