4.31: Application to deal with delay
4.33: Dismissal for long delay
8.7: Confirmation of trial date

Case Summary

The Defendants brought an Application to dismiss the Action commenced in 2011 for delay pursuant to both Rules 4.31 and 4.33.

The Defendants filed their Rule 4.33 Application on April 11, 2019. In the three years prior, several steps had occurred including the setting of a Trial date: the Trial Coordinator had cancelled the Trial as neither party had complied with Rule 8.7 by confirming Trial readiness. The Plaintiff had subsequently brought an Application to set a new Trial date. The latter Application did not proceed as the Defendants applied to dismiss the Action for delay before it was heard.

With respect to the 4.33 delay Application, Master Prowse found that commencing a step that is then not completed does not significantly advance the Action. Furthermore, the Master considered that the two methods of setting a matter down for Trial, either through completion of a Form 37 or through Court direction, are essentially interim steps in advance of Trial. The Master found that if the Trial is not held, then the interim step does not constitute a significant advance in the Action. Master Prowse dismissed the Action pursuant to Rule 4.33.

In the alternative, Master Prowse would have also dismissed the Action for inordinate delay pursuant to Rule 4.31. The Action had been underway for almost eight years, which delay Master Prowse found to be inordinate; the Plaintiff had not provided any adequate excuse for the delay; and the Plaintiff had not rebutted the presumption that the delay caused significant prejudice to the Defendants.

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