When exercising the discretion to dismiss proceedings under s 61(3) of the Civil Procedure Act 2005 (NSW) for non-compliance with procedural directions, the court must consider and assess any explanation proffered for default, must consider the likely impact of dismissal on the party's rights, and where dismissal would effectively be final, must consider whether dismissal is a proportionate response to the defaults. Section 61(3) applies only to non-compliance with directions made by court order, not to non-compliance with the UCPR. A self-represented litigant's unchallenged evidence of difficulties obtaining legal assistance is a relevant consideration that must be addressed.
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