William Crosby & Co Pty Ltd v The Commonwealth [1963] HCA 6

William Crosby & Co Pty Ltd v The Commonwealth [1963] HCA 6

The plaintiffs had taken no step in the proceeding for about ten years and failed to show good reason for leave under O. 60, r. 12 (2). Given the complexity of the factual issues and the likely loss or unavailability of relevant evidence concerning events in 1944 and 1945, the order granting leave to take a fresh step should be set aside and the plaintiffs' summons dismissed.

Jurisdiction
Australia
Procedural Posture
Appeal From an Order Made at Chambers Under O. 60, R. 12 (2) of the High Court Rules Granting Leave to Take a Fresh Step in an Action / Appeal Allowed
Outcome
Appeal allowed with costs. Order appealed from discharged. Summons seeking leave to take a fresh step dismissed with costs. Summons to dismiss the action for want of prosecution dismissed with no order as to costs.
Legal Topics
['delay in Prosecution of Proceedings' 'leave to Take a Fresh Step' 'want of Prosecution' 'high Court Rules O. 60, R. 12' 'prejudice From Loss of Evidence']
['civil Procedure' 'limitation of Actions' 'federal Jurisdiction'] ['delay in Prosecution of Proceedings' 'leave to Take a Fresh Step' 'want of Prosecution' 'high Court Rules O. 60, R. 12' 'prejudice From Loss of Evidence']

Case Brief

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Procedural Posture

Appeal From an Order Made at Chambers Under O. 60, R. 12 (2) of the High Court Rules Granting Leave to Take a Fresh Step in an Action / Appeal Allowed

Legal Issues

  1. 1 ['Whether leave should be granted under O. 60, r. 12 (2) of the High Court Rules to take a fresh step after six years had elapsed since the last step in the proceeding.' 'Whether the plaintiffs showed good reason for excepting the proceedings from the prohibition imposed by O. 60, r. 12 (2).' 'Whether delay and the loss or disappearance of evidence justified refusing leave to proceed.']

Ratio Decidendi

The plaintiffs had taken no step in the proceeding for about ten years and failed to show good reason for leave under O. 60, r. 12 (2). Given the complexity of the factual issues and the likely loss or unavailability of relevant evidence concerning events in 1944 and 1945, the order granting leave to take a fresh step should be set aside and the plaintiffs' summons dismissed.

Court Disposition

Appeal allowed with costs. Order appealed from discharged. Summons seeking leave to take a fresh step dismissed with costs. Summons to dismiss the action for want of prosecution dismissed with no order as to costs.

Orders

  • ['Appeal allowed with costs.' 'Order appealed from discharged.' 'In lieu thereof order that the summons seeking leave to take a fresh step in the action be dismissed with costs.' 'Certify that the matter was one proper for the attendance of counsel at chambers.' 'Order that the summons to dismiss the action for want...