Bielby, O'Ferrall and Strekaf JJA

4.33: Dismissal for long delay

Case Summary

The Appellant appealed an Order of a Chambers Justice would have dismissed his Application to have the Action dismissed for long delay pursuant to Rule 4.33. The Action related to claims for divorce and division of matrimonial property. The Appellant’s Rule 4.33 Application was brought after the Respondent applied for child support payments retroactive to the parties’ separation in December 2009. The Action had been commenced in February 2010, and the parties reached an agreement in late 2010 - early 2011 which resolved some but not all of the claims in the Action. No formal steps had been taken in the Action since the parties came to that agreement, but the Appellant made child support payments as contemplated in the agreement until July 2017, when he unilaterally reduced the support payments being made.

The Chambers Judge found that the Appellant had participated in the Action and otherwise acquiesced in the delay. The Chambers Judge also noted that there is no limitation period for when an Action for divorce or support must be made, such that even if the current Action were dismissed, there would be nothing prohibiting the Respondent from commencing a new Action for divorce and support payments, such that the dismissal would only result in delay and wasted Costs. The Chambers Judge dismissed the Application.

The Court of Appeal found that the entering into and abiding by the terms of the settlement agreement constituted a step which significantly advanced the Action, as it resolved the child support issue and saved the parties the time and expense of seeking Court intervention on that issue. The Panel noted that Rule 4.33(2) should not be applied in a manner which discouraged parties from attempting to settle aspects of their ongoing disputes for fear that the ongoing claims could be prejudiced. The Court of Appeal also concurred with the Chambers Judge’s assessment that dismissing the Action would be of no ultimate utility in any event as the Respondent is not barred by limitations to re-commence another Action. The Appeal was dismissed.

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