The court’s paramount aim is to conduct matters in a way that ensures that they progress as quickly and cost effectively as possible. A court can dismiss either a statement of claim or a cross-claim where the plaintiff or cross-claimant fails to take steps to progress the matter. Similarly, a court can also strike out a defence where the defendant fails to conduct the proceedings with due diligence.  

The different courts each have their own timelines concerning when they can dismiss proceedings.  For example, proceedings in the Supreme Court of New South Wales can be dismissed in circumstances where the parties fail to take any steps to progress the matter in a five month period. The New South Wales District and Local Courts, have the power to dismiss proceedings in circumstances where the parties have not progressed the matter for nine months after the filing of the statement of claim.  

If a party is served with a notice of dismissal and they wish for the proceedings to continue, they must indicate to the court that they want to ‘show cause’.  The matter will be then listed for a ‘show cause’ hearing, at which time the parties must explain to the court why proceedings should not be dismissed or the defence not struck out. A party that is required to show cause should expect to pay the costs associated with that show cause hearing.  

What do I Need to do to ‘Show Cause’?

The defaulting party is required to adduce evidence, in the form of an affidavit, setting out the reasons why the default occurred (i.e. why they failed to progress the matter). A party must file any affidavit evidence they intend to rely on in the court registry and then serve the documents on all parties at least five days before the show cause hearing. 

For example, if a party was in default due to sickness, the affidavit evidence should include copies of any medical certificates. The defaulting party’s affidavit evidence must also satisfy the court that they are ready to progress the matter. Where a solicitor is acting on behalf of a defaulting plaintiff, that lawyer will also need to satisfy the court that they have not commenced the proceedings in contravention of any applicable court rules.

What Happens if the Proceedings are not Dismissed?

If a party is successful at a show cause hearing, the court will make orders that it deems appropriate so that the matter can be progressed swiftly. This will usually include a timetable for the parties to file any additional pleadings and evidence.  

What Can You do if Your Proceedings are Dismissed?

If the court has dismissed your court proceedings for lack of prosecution, all is not lost. Here, a plaintiff isn’t prevented from re-commencing proceedings although, they may be required first to seek leave from the court. Furthermore, the plaintiff will also be required to pay any requisite court filing fee again.

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When commencing court proceedings in New South Wales, it is important to keep in mind that the courts will aim to have matters progress in a timely manner to reach a swift resolution. If you fail to advance your proceedings, the court will likely do it for you. 

Questions? get in touch with our disputes lawyers on 1300 544 755. 

Vanessa Swain

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