4.33: Dismissal for long delay
15.4: Dismissal for long delay: bridging provision

Case Summary

Barrett appealed a Decision dismissing his Action against the Public Trustee. The Action was dismissed pursuant to former Rule 244.1, because five years had elapsed since the last thing was done to significantly advance the Action.

Barrett had filed a Claim against the Public Trustee alleging that the Public Trustee had failed to protect Barrett’s rights as a minor and failed to notify him of his inheritance from his grandfather. Nothing was done to advance the Action, and the Public Trustee filed a Motion to dismiss the Claim.

Prior to the Action against the Public Trustee, Barrett commenced a Claim against the Estate of his grandfather, relating to alleged mishandling of the Estate (the “Estate Action”). The Estate Action was dismissed for want of prosecution, and that Decision was upheld on Appeal. Barrett argued that his Appeal in the Estate Action was a “thing” that materially advanced the Public Trustee Action.

The Court dismissed Barrett’s Appeal for various reasons, including:

(a)    The Public Trustee Action could have continued while the Estate Action was proceeding;

(b)   The Public Trustee Action and the Estate Action were not inextricably linked - the result in the Estate Action would not have been legally or factually determinative of the Public Trustee Action;

(c)    The Estate Action did not materially advance the Public Trustee Action; and

The Decision in the Estate Action would not have been a legal bar to a Decision in the Public Trustee Action.

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