Division 3 Dismissal of proceedings etc for lack of progress

12.7   Dismissal of proceedings etc for want of due despatch

(cf SCR Part 5, rule 12, Part 32A, rules 1 and 2; DCR Part 18, rules 3 and 9; LCR Part 17, rule 4)

(1)  If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.

(2)  If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit.

Note. See rule 42.20 as to the effect of dismissal with respect to costs.

12.8   Additional grounds for dismissal of proceedings by Supreme Court or Land and Environment Court

(cf SCR Part 32A, rules 1 and 2)

(1)  This rule applies to proceedings in the Supreme Court or the Land and Environment Court.

(2)  The court may, of its own motion, make an order dismissing the proceedings if it appears from the court’s records that, for over 5 months, no party to the proceedings has taken any step in the proceedings.

(3)  Such an order may not be made:

(a)  if the proceedings, or any part of the proceedings, are listed for a future date, or

(b)  if there are any notices of motion or other applications in the proceedings that are yet to be determined, or

(c)  if a party satisfies the court that such an order should not be made.

(4)  Before such an order is made, notice of the proposed order is to be given to the plaintiff and to each other active party, being a notice that gives each of them a reasonable opportunity to be heard in relation to the proposal.

(5)  Such a notice is to be sent by post, addressed to the person to whom it is directed:

(a)  at the person’s address for service, or

(b)  if the person has no address for service, at the person’s last known address,

      in an envelope marked with the court’s return address.

(6)  A notice, posted as referred to in subrule (5), is taken to have been received by the person to whom it was addressed even if it is returned to the court as having not been delivered to the addressee.

12.9   Additional grounds for dismissal of proceedings by District Court or Local Court

(1)  This rule applies to proceedings in the District Court or the Local Court that have been commenced by statement of claim or in which a statement of claim has been filed.

(2)  The court may, of its own motion, make an order dismissing the proceedings if:

(a)  a defence or cross-claim is not filed, or

(b)  an application for default judgment is not filed, or

(c)  the proceedings are not otherwise disposed of,

      within 9 months after the statement of claim is filed.

(3)  Such an order may be made without notice to the plaintiff or any other party.

(4)  Such an order may not be made if there are any notices of motion or other applications in the proceedings that are yet to be determined.

12.10   Stay of further proceedings to secure costs of proceedings dismissed

(cf SCR Part 40, rule 8 (2); DCR Part 18, rule 8; LCR Part 17, rule 9)

If:

(a)  as a consequence of the dismissal of proceedings, a party is liable to pay the costs of another party in relation to those proceedings, and

(b)  before payment of the costs, the party commences further proceedings against that other party on the same or substantially the same cause of action, or for the same or substantially the same relief, as that on or for which the former proceedings were commenced,

the court may stay the further proceedings until those costs are paid and make such consequential orders as it thinks fit.

Note. See also section 67 of the Civil Procedure Act 2005 as to the terms on which a stay may be granted, and rule 42.20 as to costs payable in relation to proceedings that are dismissed.