Pacanowski v Simon Wakerman & Associates [2009] NSWCA 402

Pacanowski v Simon Wakerman & Associates [2009] NSWCA 402

Leave to appeal was refused because the applicants did not demonstrate a sufficiently arguable error in the Judicial Registrar's dismissal of the proceedings for want of prosecution: the parties proceeded by oral submissions without objection despite non-compliance with the Practice Note, there was no denial of procedural fairness in relation to the chronology, presumptive prejudice from prolonged delay was relevant, any numerical error about costs orders was immaterial, and the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules informed the discretion to dismiss.

Jurisdiction
Australia
Judgment Date
10 November 2009
Procedural Posture
Application for Leave to Appeal / Judgment on Application for Leave to Appeal From District Court Orders Dismissing Proceedings for Want of Prosecution
Outcome
Summons for leave to appeal dismissed with costs
Legal Topics
['dismissal for Want of Prosecution' 'leave to Appeal' 'procedural Fairness' 'case Management' 'presumptive Prejudice']
['civil Procedure'] ['dismissal for Want of Prosecution' 'leave to Appeal' 'procedural Fairness' 'case Management' 'presumptive Prejudice']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Judgment on Application for Leave to Appeal From District Court Orders Dismissing Proceedings for Want of Prosecution

Legal Issues

  1. 1 ['Whether discretion to dismiss proceedings for want of prosecution miscarried' 'Whether the applicants were denied procedural fairness by reliance on a chronology handed up at the show cause hearing' 'Whether presumptive prejudice resulting from delay could be taken into account' 'Whether the Judicial Registrar erred in treating provisions of the Civil Procedure Act 2005 as affecting the Hoser v Hartcher principles']

Ratio Decidendi

Leave to appeal was refused because the applicants did not demonstrate a sufficiently arguable error in the Judicial Registrar's dismissal of the proceedings for want of prosecution: the parties proceeded by oral submissions without objection despite non-compliance with the Practice Note, there was no denial of procedural fairness in relation to the chronology, presumptive prejudice from prolonged delay was relevant, any numerical error about costs orders was immaterial, and the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules informed the discretion to dismiss.

Court Disposition

Summons for leave to appeal dismissed with costs

Orders

  • ['Summons for leave to appeal dismissed with costs']