Carolan v State of New South Wales and Anor [2013] NSWSC 1593

Carolan v State of New South Wales and Anor [2013] NSWSC 1593

Despite a record of repeated non-compliance and delays by the Plaintiff, the circumstances did not justify the exceptional remedy of dismissing the proceedings for want of prosecution. Progression of litigation was preferred, subject to directions and a gross sum costs order in the Defendants' favour, in line with the statutory obligation for parties to facilitate just, quick and cheap resolution of cases.

Parties
Plaintiff: Sean Carolan; First Defendant: State of New South Wales; Second Defendant: Commissioner of Police for New South Wales
Jurisdiction
Australia
Judgment Date
29 October 2013
Procedural Posture
Interlocutory Application / Ruling on Notice of Motion to Dismiss for Want of Prosecution
Outcome
Notice of Motion to dismiss proceedings for want of prosecution dismissed; leave granted to Plaintiff to further amend pleadings; parties directed to file further evidence; Plaintiff ordered to pay Defendants' costs in a gross sum.
Legal Topics
Want of Prosecution, Delivery of Seized Property, Law Enforcement (powers and Responsibilities) Act 2002, Litigation Conduct, Costs Orders
Civil Procedure Want of Prosecution Delivery of Seized Property Law Enforcement (powers and Responsibilities) Act 2002 Litigation Conduct Costs Orders

Case Brief

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Parties

Sean Carolan

Plaintiff

State of New South Wales

First Defendant

Commissioner of Police for New South Wales

Second Defendant

Procedural Posture

Interlocutory Application / Ruling on Notice of Motion to Dismiss for Want of Prosecution

Legal Issues

  1. 1 Whether proceedings should be dismissed for want of prosecution
  2. 2 Whether Plaintiff should be granted leave to amend pleadings
  3. 3 Appropriate costs order for interlocutory application

Ratio Decidendi

Despite a record of repeated non-compliance and delays by the Plaintiff, the circumstances did not justify the exceptional remedy of dismissing the proceedings for want of prosecution. Progression of litigation was preferred, subject to directions and a gross sum costs order in the Defendants' favour, in line with the statutory obligation for parties to facilitate just, quick and cheap resolution of cases.

Court Disposition

Notice of Motion to dismiss proceedings for want of prosecution dismissed; leave granted to Plaintiff to further amend pleadings; parties directed to file further evidence; Plaintiff ordered to pay Defendants' costs in a gross sum.

Orders

  • The Notice of Motion filed 2 October 2013 seeking dismissal of the proceedings for want of prosecution is dismissed.
  • Pursuant to Rule 14.24 Uniform Civil Procedure Rules 2005, the Plaintiff is granted leave to file a verified Further Amended Statement of Claim within fourteen days.