19 May 2017
Supreme Court of Victoria.
If the plaintiff fails to file and serve a statement of claim within the time limited (after filing writ & indorsement of claim), does the court order that the proceeding be dismissed for want of prosecution on its own motion? Or does the defendant need to make an application for judgment?
Thank you.
Thanks for the question.
The court does not make orders dismissing for want of prosecution on its own motion. The defendant will need to make an application by summons and affidavit in support. The power is discretionary and the defendant will not necessarily get the dismissal simply because the plaintiff has not complied with the rules. For a summary of the principles governing the power to dismiss for want of prosecution, see Bishopsgate Insurance Australia Ltd v Deloitte [1999] 3 VR 863.
You should also bear in mind that a dismissal for want of prosecution is not an adjudication on the merits and the plaintiff will be free to commence a new proceeding on the same claim, unless the limitation period has expired in the meantime. You should therefore carefully consider whether there will be any utility in bringing the application or whether it will only result in further costs and delay because the plaintiff will resist it and will issue a new writ for the same relief.
Regards,
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