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

High Court of Australia Windeyer J. Dixon C.J. McTiernan, Kitto, Taylor and Owen JJ. William Crosby & Co Pty Ltd v The Commonwealth [1963] HCA 6

ORDER Appeal allowed with costs. Order appealed from discharged. In lieu thereof order (a) that summons seeking leave to take a fresh step in the action be dismissed with costs (b) certify that the matter was one proper for the attendance of counsel at chambers. Order that summons to dismiss the action for want of prosecution be dismissed, no order as to the costs of this summons. Windeyer J. delivered the following judgment:—

I follow the reasons that the defendant urges against my making an order on this summons. But my view of O. 60 r. 12 (2) is not that it is designed to stop actions, or to destroy rights of action, or to add a rider to the Statute of Limitations. It appears to me that it is intended rather to enable the Court, when it is desired by a party to awake an action that has been dormant, to insist that the action be brought on and disposed of and not remain in a state of inaction. To this end, the rule, I think, enables the Court to take control of the proceedings by fixing anew the times within which steps which have not been taken are to be taken. It may be that in some cases it may be sufficient to say that a fresh step may be taken, leaving it to the Rules to fix times thereafter. I am inclined to think, however, that the rule does enable the Court to take control of proceedings which the parties have not been pressing on. According to our system of pleading, the adversary is left to police the times prescribed for steps in procedure. I do not think that is always satisfactory and it may be sometimes necessary for the Court to fix times to meet the circumstances existing. A party has a right to apply to have an action dismissed for want of prosecution, or he may take other steps to have the matter brought on and disposed of. He does not, I think, gain any immunities or rights by mere delay or inaction.