Douglas & Anor v Madden & Ors [2009] NSWSC 47

Douglas & Anor v Madden & Ors [2009] NSWSC 47

Given plaintiffs' persistent non-compliance with numerous court orders to serve evidence and the length of delay, but also their proximity to compliance and final submissions, justice warranted a self-executing order granting a short final opportunity, after which the proceedings would be dismissed with costs if evidence remained outstanding. The history justified indemnity costs for the motion, payable forthwith.

Jurisdiction
Australia
Judgment Date
13 February 2009
Procedural Posture
Civil / Interlocutory Application for Summary Dismissal for Want of Prosecution
Outcome
Conditional final opportunity to plaintiffs; proceedings to be dismissed with costs if evidence not served by deadline; indemnity costs to defendants for motion, payable forthwith.
Legal Topics
['summary Dismissal' 'want of Prosecution' 'compliance With Court Orders' 'costs']
['civil Procedure'] ['summary Dismissal' 'want of Prosecution' 'compliance With Court Orders' 'costs']

Case Brief

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Procedural Posture

Civil / Interlocutory Application for Summary Dismissal for Want of Prosecution

Legal Issues

  1. 1 ['Whether proceedings should be dismissed for want of prosecution due to repeated failure to comply with court orders regarding provision of evidence' 'Whether a final opportunity should be afforded to plaintiffs to serve outstanding evidence' 'How costs should be awarded given delays']

Ratio Decidendi

Given plaintiffs' persistent non-compliance with numerous court orders to serve evidence and the length of delay, but also their proximity to compliance and final submissions, justice warranted a self-executing order granting a short final opportunity, after which the proceedings would be dismissed with costs if evidence remained outstanding. The history justified indemnity costs for the motion, payable forthwith.

Court Disposition

Conditional final opportunity to plaintiffs; proceedings to be dismissed with costs if evidence not served by deadline; indemnity costs to defendants for motion, payable forthwith.

Orders

  • ["If the plaintiffs do not serve the outstanding expert's report and any supporting affidavits by 4 pm on 27 February 2009, the proceedings are dismissed with an order that the plaintiffs pay the defendants' costs, as agreed or assessed." "The plaintiffs pay the defendants' costs associated with the motion and its...