Cassaniti v McEntee & Anor [2004] NSWSC 1063

Cassaniti v McEntee & Anor [2004] NSWSC 1063

Justice is best served by standing the motion to dismiss over, giving the plaintiff one final opportunity to comply, given the circumstances and reasons for delay relating to access to documents, notwithstanding presumptive prejudice to the defendants due to effluxion of time.

Parties
Plaintiff: Sam Peter Cassaniti; First Defendant: Alan McEntee; Second Defendant: Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
15 November 2004
Procedural Posture
Civil / Interlocutory Motion (application to Dismiss for Want of Prosecution); Judgment on Whether to Dismiss or Allow Continuation
Outcome
Motion to dismiss stood over; plaintiff given further opportunity to file affidavit; matter listed for status conference; costs reserved.
Legal Topics
Dismissal for Want of Prosecution, Disclosure of Protected Information, Statutory Duties of Tax Officers, Delay in Litigation, Prejudice Due to Delay
Civil Procedure Administrative Law Dismissal for Want of Prosecution Disclosure of Protected Information Statutory Duties of Tax Officers Delay in Litigation Prejudice Due to Delay

Case Brief

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Parties

Sam Peter Cassaniti

Plaintiff

Alan McEntee

First Defendant

Commonwealth of Australia

Second Defendant

Procedural Posture

Civil / Interlocutory Motion (application to Dismiss for Want of Prosecution); Judgment on Whether to Dismiss or Allow Continuation

Legal Issues

  1. 1 Whether the proceedings should be dismissed for want of prosecution under Part 33 r 6(2) of the Supreme Court Rules 1970 (NSW)
  2. 2 Whether the delay in prosecuting the case is excusable
  3. 3 Whether the delay has caused prejudice to the defendants

Ratio Decidendi

Justice is best served by standing the motion to dismiss over, giving the plaintiff one final opportunity to comply, given the circumstances and reasons for delay relating to access to documents, notwithstanding presumptive prejudice to the defendants due to effluxion of time.

Court Disposition

Motion to dismiss stood over; plaintiff given further opportunity to file affidavit; matter listed for status conference; costs reserved.

Orders

  • The defendants' notice of motion filed 2 June 2004 is stood over until Tuesday, 7 December 2004.
  • The plaintiff is to file and serve his affidavit by 19 November 2004.