United Industries International Limited v Chameleon Mining N/L [2009] FCA 1064

United Industries International Limited v Chameleon Mining N/L [2009] FCA 1064

The second plaintiff had failed to progress the proceeding and was either unable or unwilling to cooperate in getting the matter ready for hearing within an acceptable period, or at least had occasioned unnecessary delay by non-compliance. There was no reason to believe the situation would change, given his age and the evidence concerning his deteriorating health. That default justified dismissal under O 35A r 3(1)(a). The history of the proceeding also constituted inexcusable and inordinate delay without satisfactory explanation, warranting indemnity costs against the second plaintiff jointly and severally with the first plaintiff.

Jurisdiction
Australia
Judgment Date
18 September 2009
Procedural Posture
Civil Proceeding / Defendants' Notices of Motion to Dismiss the Proceeding for Default Under O 35 a R 3(1)(a) of the Federal Court Rules; Reasons Published After Orders Made on 20 August 2009
Outcome
Proceedings dismissed; second plaintiff ordered jointly and severally with the first plaintiff to pay the respondents' costs on an indemnity basis.
Legal Topics
['dismissal for Default' 'failure to Prosecute' 'security for Costs' 'indemnity Costs' 'service Dispensed With']
['civil Procedure' 'costs'] ['dismissal for Default' 'failure to Prosecute' 'security for Costs' 'indemnity Costs' 'service Dispensed With']

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Procedural Posture

Civil Proceeding / Defendants' Notices of Motion to Dismiss the Proceeding for Default Under O 35 a R 3(1)(a) of the Federal Court Rules; Reasons Published After Orders Made on 20 August 2009

Legal Issues

  1. 1 ['Whether the proceeding should be dismissed as against the second plaintiff under O 35A r 3(1)(a) of the Federal Court Rules for default and failure to progress the proceeding.' "Whether the second plaintiff should be jointly and severally liable with the first plaintiff for the defendants' costs on an indemnity basis." "Whether service of the second and third defendants' notice of motion should be dispensed with and the motion heard instanter."]

Ratio Decidendi

The second plaintiff had failed to progress the proceeding and was either unable or unwilling to cooperate in getting the matter ready for hearing within an acceptable period, or at least had occasioned unnecessary delay by non-compliance. There was no reason to believe the situation would change, given his age and the evidence concerning his deteriorating health. That default justified dismissal under O 35A r 3(1)(a). The history of the proceeding also constituted inexcusable and inordinate delay without satisfactory explanation, warranting indemnity costs against the second plaintiff jointly and severally with the first plaintiff.

Court Disposition

Proceedings dismissed; second plaintiff ordered jointly and severally with the first plaintiff to pay the respondents' costs on an indemnity basis.

Orders

  • ['The second and third respondent have leave to file in Court their notice of motion dated 20 August 2009.' "Service be dispensed with in relation to the second and third respondents' notice of motion." 'The notice of motion referred to in Order 1 be heard instanter together with the notice of motion filed by the...