The Appeal concerns whether the Appellants' Action was properly dismissed for long delay under Rule 4.33, focusing on the service of an Affidavit of Records (“AOR”) after the presumptive expiry date for advancing the Action.

The Appellants contended that the service of the AOR significantly advanced the Action forward and was completed within the required timeframe. The Appellants argued that any issues related to the remote commissioning and email service of the AOR were merely technicalities that should not impede the progress of the case. They also argued that the Respondents' decision to amend their delay Application to seek Summary Dismissal indicated their intention to proceed with the Action, engaging Rule 4.33(2)(b). On the other hand, the Respondents maintained that the AOR did not meet the necessary criteria for advancing the Action, citing reasons such as improper timing, content, commissioning, and method of service. They also argued that adding a Summary Dismissal Application onto the delay Application did not invoke the relieving provisions of Rule 4.33(2)(b).

Justice Jones analyzed Rule 4.33 and emphasized the Court's strict stance on delay, with no room for discretion in cases of prolonged delay. Despite having discretion under Rule 11.27, Justice Jones decided against exercising it in this situation to uphold the essence of Rule 4.33 and the foundational Rules.

Justice Jones determined that the service of the AOR did not extend the deadline as stated in section 22(2) of the Interpretation Act. In deciding that issue, Justice Jones considered other means of service noting Rule 11.15, which speaks to service on a person providing an address for service, and 11.27 which allows for service via email. The Court noted that the service could not have been affected by electronic means because the Respondents did not provide an email address, and neither agreed for email service.

The Court agreed with the Applications Judge's assessment that the three-year period specified in Rule 4.33 had passed without a significant advance in the case.

Despite considering the remaining grounds for Appeal, such as whether the AOR constituted a significant advancement of the Action and whether it was properly commissioned, Justice Jones ultimately concluded that the case was rightfully dismissed due to the lengthy delay. The Decision also addressed the appropriateness of email service and the application of Rule 4.33(2)(b) by the Respondents in their request for Summary Dismissal, ultimately determining that these factors did not prevent the dismissal of the Action due to delay.

Justice Jones also took into account the Respondent's Summary Dismissal Application. He observed that both Rule 4.33 and 7.3, when looked at from a broader perspective, share the same ultimate goal of eliminating litigation that has no future. This could be due to its futility or because one party has allowed it to wither away. Justice Jones acknowledged that the foundational Rules, like Rule 1.2, aim to ensure a fair and just resolution of disputes in a timely and cost-effective manner. Therefore, the Respondent's decision to seek Summary Dismissal alongside dismissal for delay aligned with the parties' obligations under these foundational Rules.

In conclusion, Justice Jones noted that it is appropriate to allow Applications for dismissal for delay and Summary Dismissal to coexist, even though it will require additional effort to pursue and respond to each of them.