matter of the proceeding will likely have been put out of mind. The defendant’s witnesses will have to depend on contemporaneous documents, to the extent the defendant holds any.
Having regard to the remarks of Lord Diplock in Birkett v James, I am satisfied these post-Writ delays have caused prejudice to the defendant which is far ‘more than minimal’ prejudice. It is prejudice of a kind that calls for the dismissal of this action because there is a substantial risk that a fair trial cannot be had so long after the events that gave rise to them. Justice demands that the proceeding be dismissed.
Case Details
Citation[2023] VSC 605
CourtVSC
JurisdictionVictoria
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