Cases that go nowhere occupy the Court’s list and leave defendants under an unresolved claim. The National Court Rules 1983 provide several ways to end them.
Order 4 Rule 36
(1) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may stay or dismiss the proceedings.
(2) This applies, with any necessary modifications, in relation to a cross-claimant as it applies in relation to a plaintiff.
Default in complying with an order or direction — a specific, provable failure. Directions given at a directions hearing or pre-trial conference are the usual source.
Failure to prosecute with due despatch — a general assessment of whether the plaintiff has moved the case along.
Note that the rule offers stay or dismissal. A stay preserves the proceeding — and with it the plaintiff’s position on the limitation period — while dismissal ends it. Sub-rule (2) extends the power to a cross-claimant.
Order 10 Rule 5
Where a plaintiff does not, within six weeks after the pleadings are closed, set the proceedings down for trial, the Court, on motion by any other party, may, on terms, dismiss the proceedings or make such other order as the Court thinks fit.
The trigger is precise: six weeks from the close of pleadings. Unlike Rule 36, no general assessment of despatch is required — the plaintiff either set the matter down or did not.
The same six weeks appears in the Listings Rules from the other direction: a plaintiff may file a notice to set down after lapse of 6 weeks from the close of pleadings. So the six-week mark is when the plaintiff should be acting. See setting down for trial.
Rule 5 is discretionary — “may, on terms, dismiss the proceedings or make such other order” — and a short delay with an explanation usually produces directions and a costs order rather than dismissal.
The Listings Rules 2005
The Court may summarily determine a matter on application by a party, on its own initiative, or upon referral by the Registrar, in the following situations —
a. for want of prosecution since filing the proceedings or since the last activity on the file;
b. for a failure to appear at any of the listing or directions hearing by a party or his lawyer;
c. for non-compliance of any order or directions previously made at any of the listing processes;
d. under any of the grounds in Order 12 Rule 40 and Order 8 Rule 27;
e. on any competency ground relating to non-compliance with the Rules or any other relevant rules of Court.
Rule 7(6) adds that where there has been no activity since filing, or after the last activity no further meaningful activity, the Court will deal with the matter summarily under rule 15.
- The Registrar issues a notice in Schedule “D” giving notice of intention to refer the matter for summary determination on the grounds stated, allowing thirty days to respond and fixing a return date. In appropriate cases the Registrar may publish the notice letter in the media.
- Any response, written or verbal, is placed on the file and the parties are advised to appear.
- On expiry of the 30 days, the Registrar forwards the file to the judge.
- The judge may determine the proceedings summarily on the response and any representations, or give such directions as may seem necessary.
- If the parties are unrepresented, the Registrar shall draft the Court Order, enter it and forward sealed copies.
- The file is closed and forwarded to Archives.
So a dormant file is not dismissed without warning: thirty days’ notice and a return date come first.
Dormant motions too
Rule 16(1) — motions on the Motion List not mentioned due to non-appearance of parties may be struck out for want of prosecution or be adjourned to a fixed time.
Rule 16(2) — where adjourned, the Registrar advises the parties in writing; if the party filing the Motion fails to appear on the adjourned date, the Motion may be struck out or dismissed for want of prosecution.
Rule 17 — the Court may, of its own motion or on application, strike out or dismiss a Motion which is not prosecuted within one month after it is filed, or if it is adjourned twice.
Rule 18(2) — with the exception of winding-up petitions, a Motion will not be adjourned twice except with leave; otherwise it may be struck out for want of prosecution.
Rule 17 is precise and easily overlooked. A motion filed and left unmoved for a month is liable to be struck out — as is one adjourned twice.
What a plaintiff must show
- Explain the delay — period by period, on affidavit from someone with direct knowledge. Unexplained gaps are what dismissals are built on.
- Show the claim has merit. The Court is more reluctant to dismiss a good claim than a doubtful one.
- Address prejudice. Whether a fair trial is still possible — witnesses available, documents preserved, memories serviceable.
- Demonstrate present readiness. Come with a proposed timetable, the outstanding steps completed or nearly so, and a realistic date for setting down. An application resisted with nothing but a promise usually fails.
Both Order 4 Rule 36 and Order 10 Rule 5 permit orders short of dismissal — a stay, or such other order as the Court thinks fit. Offer an unless order with a firm timetable and costs.
If dismissal does follow, note Order 12 Rule 7: an order for dismissal shall not, subject to any terms on which it is made, prevent the plaintiff from bringing fresh proceedings — though the Court may stay the fresh proceedings until the costs of the first are paid, and the limitation period may by then have run.
Sources
- National Court Rules 1983 — O 4 rr 36, Div 5 (Motions Rules rr 16–18); O 8 rr 23, 27; O 10 rr 5, 9A (Listings Rules 2005 rr 6, 7, 15, Sch D); O 12 rr 7, 40
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.