Dunn, T.R. & Ors v. Bohemian Sound Pty Ltd [1985] FCA 202

Dunn, T.R. & Ors v. Bohemian Sound Pty Ltd [1985] FCA 202

Although there had been inordinate and inexcusable delay by the applicants and their solicitors, the respondents did not establish on the evidence that the delay created a substantial risk that the matter could no longer be tried fairly and adequately. The evidence of lost or unavailable witnesses was too meagre and did not show that equivalent evidence was unavailable or that the alleged prejudice was caused by the delay.

Jurisdiction
Australia
Judgment Date
08 May 1985
Procedural Posture
Application by Notice of Motion to Have a Matter Struck Out for Want of Prosecution / Ex Tempore Judgment
Outcome
Application to strike out or dismiss for want of prosecution dismissed.
Legal Topics
['dismissal for Want of Prosecution' 'inordinate and Inexcusable Delay' 'prejudice and Fair Trial' 'trade Practices Act 1974 Remedies' 'fraudulent Misrepresentation']
['civil Procedure' 'trade Practices'] ['dismissal for Want of Prosecution' 'inordinate and Inexcusable Delay' 'prejudice and Fair Trial' 'trade Practices Act 1974 Remedies' 'fraudulent Misrepresentation']

Case Brief

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Procedural Posture

Application by Notice of Motion to Have a Matter Struck Out for Want of Prosecution / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the Court had power to dismiss the proceeding for want of prosecution.' 'Whether there had been inordinate and inexcusable delay by the applicants.' 'Whether there was a substantial risk that a fair and adequate trial of the issues would no longer be possible because of the delay.' 'Whether the availability of possible Supreme Court proceedings should affect the decision to dismiss the Federal Court proceeding.']

Ratio Decidendi

Although there had been inordinate and inexcusable delay by the applicants and their solicitors, the respondents did not establish on the evidence that the delay created a substantial risk that the matter could no longer be tried fairly and adequately. The evidence of lost or unavailable witnesses was too meagre and did not show that equivalent evidence was unavailable or that the alleged prejudice was caused by the delay.

Court Disposition

Application to strike out or dismiss for want of prosecution dismissed.

Orders

  • ['The application be dismissed.' 'Costs of the application be costs in the cause.']