FEDERAL COURT OF AUSTRALIA Jenolan Caves Resort Pty Ltd v Culley [1999] FCA 1361 PRACTICE AND PROCEDURE – application for dismissal for want of prosecution – dismissal for delay is a drastic measure justifiable for the grossest of delays only Federal Court Rules O 52 r 38 JENOLAN CAVES RESORT PTY LIMITED v CHRISTINE CULLEY N 486 OF 1999 TAMBERLIN J SYDNEY 23 SEPTEMBER 1999 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 486 OF 1999 BETWEEN: JENOLAN CAVES RESORT PTY LIMITED APPLICANT AND: CHRISTINE CULLEY RESPONDENT JUDGE: TAMBERLIN J DATE OF ORDER: 23 SEPTEMBER 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The respondent's notice of motion is dismissed. 2. The applicant is to pay all the respondent's costs (including the costs of this motion) incurred to date as a consequence of the failure of the applicant to comply with the directions and orders of the Court. 3. The respondent is to file and serve any affidavits in response to the applicant's evidence by 14 October 1999. 4. The applicant is to file and serve any affidavits in reply by 21 October 1999. 5. The matter is listed for directions on 22 October 1999. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 486 OF 1999 BETWEEN: JENOLAN CAVES RESORT PTY LIMITED APPLICANT AND: CHRISTINE CULLEY RESPONDENT JUDGE: TAMBERLIN J DATE: 23 SEPTEMBER 1999 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The matter before me is an application for dismissal for want of prosecution under O 52 r 38(1)(a) of the Federal Court Rules. An order is also sought that the applicant should pay the respondent's costs of the appeal, being the appeal to this Court from a decision of the Chief Industrial Magistrate. The jurisdiction of the Court to dismiss for want of prosecution is set out in O 52 r 38 and the authorities indicate that such dismissal for delay is a drastic measure and is only justified by the grossest of delays. This is because it forecloses the applicants from having their case and arguments ventilated before the Court. 2 At the hearing before me this morning, substantial arguments were presented as to reasons why there would be no prejudice if the motion were to be granted and the application dismissed. These arguments largely turn on the contention that there is no substance in the claims asserted by the applicant. The relevant matters were canvassed in some detail and I think there is substantial force in the submissions presented by counsel for the respondent. However, I am not satisfied that the delay has been of such a gross nature that it warrants the Court refusing to hear the applicant's case. 3 The reasons presented in the affidavit of Martin English dated 23 September 1999, for the applicant, as to why there had been a want of prosecution are not strong, and they do indicate that there has been non-compliances with the orders of the Court. In those circumstances, I think that the Court, although dismissing the motion, should award to the respondent any costs which have been incurred as a consequence of failure to comply with the directions and orders of the Court. 4 In order that the matter might progress I make orders to the effect that the notice of motion is dismissed, however the normal order as to costs which would follow will not be applied. This is an appropriate case where an order for costs in the terms which I have expressed above should apply, namely that the applicant should pay the respondent's costs flowing from non-compliance. As far as the further progression of the matter is concerned, I am informed it is a relatively short matter and I will make directions to ensure that it comes on for an early hearing. 5 I am informed by the applicant that all affidavits are now filed. I direct the respondent to file any affidavits in response by 14 October 1999 and the applicant to file any reply by 21 October. The matter will then be listed before me on 22 October with a view to fixing an early hearing date. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 29 October 1999 Counsel for the Applicant: D Inverarity Solicitor for the Applicant: English Kearns Counsel for the Respondent: M Thangaraj Solicitor for the Respondent: Greg Wilkinson Date of Hearing: 23 September 1999 Date of Judgment: 23 September 1999