Application for leave to appeal dismissal of proceeding for want of prosecution
Whether judge erred in granting application to dismiss proceeding for want of prosecution
Whether judge erred in ordering indemnity costs
Quick Take
1Dismissal for want of prosecution is justified where there has been inordinate and inexcusable delay by the plaintiff causing serious prejudice to the defendant, even where a fair trial may still technically be possible, provided the cumulative prejudice — including inability to prepare the case, increased costs, outdated expert reports, and unavailability of witnesses — renders continued proceedings contrary to the interests of justice.
2Where a plaintiff has been afforded numerous indulgences and survived two prior dismissal applications yet continues to take no meaningful steps to prosecute the proceeding, the court is entitled to conclude that no lesser alternative to dismissal would be effective, and the overarching obligations under the Civil Procedure Act 2010 (Vic) support that conclusion.
3Indemnity costs may be ordered under s 29 of the Civil Procedure Act 2010 (Vic) where a party's conduct constitutes a breach of overarching obligations, including a sustained failure to act promptly and minimise delay, even absent an unreasonable refusal of an offer of compromise.
