Proceedings Dismissed Due To Prejudice Caused To Defendant By DelayFor around 3 years, Aitken Whyte Lawyers represented a Defendant in proceedings in the Queensland Courts. Show
The BackgroundIn early 2017, the Plaintiff in the Court proceedings sued our client for events dating back to 2012. The Court proceedings were commenced within the relevant 6-year limitation period under section 10 of the Limitation of Actions Act 1974 (Qld). We filed a Defence on behalf of the Defendant within the relevant time. The Plaintiff did not file any Reply to the Defence. The DelayNo steps were taken by either party in the Court proceedings for around 3 years. There are rules in the civil procedure process (Uniform Civil Procedure Rules) around taking steps in proceedings which have been delayed. When no party has taken a step for 1 year:
When no party has taken a step for 2 years:
These general statements are more particularly described in cases referring to rule 389 of the Uniform Civil Procedure Rules 1999 (Qld). The Plaintiff’s Application to ProceedThe Plaintiff applied to Court for leave to take a step/leave to proceed, only in 2020. We represented the Defendant at the hearing and opposed the Plaintiff’s Application. The Defendant’s Application to Dismiss the ProceedingsWe also applied on behalf of the Defendant to dismiss the Plaintiff’s proceedings for want of prosecution (failing to prosecute the claim),
under rule 280 of the Uniform Civil Procedure Rules.
What the Court ConsideredIn determining the applications, the Court rightly considered the Queensland Court of Appeal case of Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178. Her Honour Justice Atkinson (with whom McMurdo J and McPherson JA agreed) described the relevant test in Tyler. The test described in Tyler requires consideration by the Court of the following factors:
Recent decisions in Supreme Court and Queensland Court of Appeal matters continue to refer to this case of Tyler despite it being 20 years old. In our view, the final factor concerning prejudice is often a critical factor. If there is clear evidence of the defendant suffering prejudice due to the plaintiff’s delay, the Court should seriously consider dismissing the entire proceedings. In our recent case, the Court considered all the factors from Tyler. In particular, the Court considered point 12; whether the delay had prejudiced the proceedings. The Court considered the Defendant had been prejudiced as relevant documents from 2012 could not be produced by the plaintiff. The OutcomeOur client was successful.
Costs of the entire proceeding were also awarded in favour of our client. Here to HelpProper experience in defending proceedings before the Court is essential. Aitken Whyte Lawyers are focused on results. Our Litigation and Dispute Resolution Team will advise you on the proper course to take if a claim has been filed against you. We can advise you on whether there may be grounds to apply to have the proceedings dismissed. Aitken Whyte Lawyers can assist you with all dismissal proceedings and applications. Call Aitken Whyte Lawyers Sunshine Coast on our 24/7 line 07 5408 0655 or email us for expert and experienced advice to represent you at this important time. For more on Commercial and Civil Litigation visit our Litigation & Disputes page. Service areas include Maroochydore, Mooloolaba, Alexandra Headland, Buddina, Kawana Waters, Buderim, Marcoola, Coolum Beach, Peregian Beach, Sunshine Beach, Noosaville, Noosa, Nambour and Caloundra. Office Location and Contact DetailsSunshine Coast Maroochydore What is meant by want of prosecution?“Dismissed for want of prosecution” or DWOP means your case is dismissed by the judge because nothing has happened in your case for a while or you missed a hearing or trial (of which you had notice).
What does it mean when proceedings are dismissed?Dismissal of proceedings is an order made by the court to dismiss a case or application usually by way of consent orders. Discontinuance, on the other hand, is where the party who brought the case cease to proceed further with the court proceedings.
What happens if my divorce case is dismissed in India?If the case is dismissed, there is no judgment of divorce, and the parties remain married.
What does dism want Pros mean?A “dismissal for want of prosecution” (DWOP) is a remedy for a Court when there is little or no activity on a case. A court wants to keep its calendar as clear as possible by getting rid of any cases that have sat idle for too long. The amount of time involved before a court will DWOP a case varies from court to court.
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