TERRIGNO v BRISTOWE

The Defendant brought an Application pursuant to Rule 4.33 to dismiss the claim of the Plaintiff as against her for long delay. The Plaintiff brought a Cross-Application to question the Defendant on her Affidavit, which was granted. At the subsequent Hearing to deal with the Rule 4.33 Application, the Plaintiff levied concerns about questions that were refused during the cross-examination and undertaking responses which were not responded to.

The Plaintiff, however, failed to file and serve an Application in accordance with his requested relief in breach of Rule 6.3(3). The Court held that the Plaintiff had ample opportunity to file an Application or Cross-Application and had failed to do so, and thus his concerns were not properly before the Court.

Turning to the long delay Application, the Defendant argued that the last significant advancement in the case occurred in February 2022 when an Application for Costs was heard. The Plaintiff argued that he served a Supplemental Affidavit of Records and Formal Offers in May, 2024, by leaving such documents in her mailbox. Justice Gaston observed that no Affidavit of Service was filed and there was no Substitutional Service Order permitting service to be conducted in this manner. As such, the Plaintiff’s service of the Supplemental Affidavit or Records and the Formal Offer were not served in accordance with Rules 11.20 to 11.22. There was also no agreement regarding service in accordance with Rule 11.3.

Therefore, while service of an Affidavit of Records has been found to constitute a significant advancement, there was no proper service. Gaston J. therefore, granted the Defendant’s Application and dismissed the Claim.