hall j

1.2: Purpose and intention of these rules
4.31: Application to deal with delay
4.33: Dismissal for long delay
8.7: Confirmation of trial date

Case Summary

The Defendant, Amden Investment Ltd. had applied to a Master to dismiss the Respondent/Plaintiff’s claim for delay. That Application was dismissed, and the Defendant appealed. At the same time, the Defendant applied for an Order for Summary Dismissal. The Plaintiff, Mr. Ivkovic, cross applied for Summary Judgment. Hall J. considered Rule 4.33(2)(b) which provides that where three or more years have passed without a significant advance in the action, the Court must dismiss the action on application unless the applicant has participated in proceedings to the extent that the action should continue. Hall J. considered whether the Application for Summary Judgment constituted a step taken by the Applicant that would warrant the Action continuing. Hall J. determined that the Application for Summary Dismissal and the Cross-Application for Summary Dismissal would be adjourned pending resolution of the Appeal of the Master’s Decision.

The Respondent argued that the filing of a Form 37 significantly advanced the Action, but the Appellant argued that without the completion of a Form 39 confirming the Trial date, the step was incomplete and nothing had been accomplished. Referring to the Respondent’s arguments with respect to Rules 1.2 and 8.7(1) and (3), jurisprudence which established that the Plaintiff has the onus of moving the litigation forward, and the fact that commencing a step which is not completed does not materially advance the Action, Hall J. held that filing the Form 37 did not significantly advance the Action without filing the Form 39. In the result, there was no significant advance of the Action. Hall J. noted that although the Respondent had filed a Summary Judgment Application in 2014, it had not proceeded. Because this step was not complete, the filing of the Summary Judgment Application did not significantly advance the Action.

Justice Hall noted that “Rule 4.33 does not permit excuses” and that the Rule is mandatory. Hall J. also noted that there was no evidence that the Appellant had obstructed or stalled the Action; as such, Hall J. granted the Appeal pursuant to Rule 4.33 and dismissed the Action.

Hall J. noted that the Appellant had also argued that the Action ought to be dismissed under Rule 4.31, but noted that a discussion regarding Rule 4.31 was not necessary, as the Action had been dismissed pursuant to Rule 4.33.

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