Clark v Robards

[2016] NSWCA 187

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Dismissal for want of prosecution
3. › Summary dismissal for want of due despatch
4. › Whether delay satisfactorily explained
5. › Relevance of incarceration and criminal proceedings to delay
6. › Whether appellant given sufficient opportunity to replead
7. › Uniform Civil Procedure Rules 2005 (NSW), r 12.7
1. Practice and Procedure
2. › Pleadings
3. › Striking out
4. › Failure to produce properly pleaded statement of claim
5. › Multiple opportunities to replead
6. › Whether time had arrived when no further opportunity should be extended
7. › Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28
1. Appeal
2. › Appeal from summary dismissal
3. › Whether error in exercise of discretion
4. › Whether apparent anomaly in differential treatment of related proceedings explained by procedural history

Quick Take

Incarceration and involvement in criminal proceedings may partly explain delay in civil proceedings but do not provide a complete answer to an application for dismissal for want of due despatch where the litigant has demonstrated an ability to produce detailed documents but has not directed that effort to producing a compliant pleading. Courts should be wary of dismissing claims against the State brought by incarcerated persons but will do so where the delay is unacceptable and the litigant has been given substantial opportunities to replead.