Rule 24.01(1) of the Rules of Civil Procedure outlines the circumstances under which a defendant may move to dismiss an action for delay, provided the defendant is not in default under the Rules or an order of the court.

However, given that the practice of estate litigation is largely centered around applications, when does this same concept apply to applications? The court has confirmed that Rule 24.01 does not apply to applications, so we must turn to case law for an answer to this question.

In Gilmour v Estate of Charles Wayne West (“Gilmour”), the Respondent argued that the application should be dismissed for delay pursuant to either Rule 24.01 or the ‘common law of delay’. Justice Petersen stated that while Rule 24.01 did not apply to applications, the court had the “inherent jurisdiction to control [their] own process[es], which include[d] the discretionary power to dismiss an application for delay”.

The test to dismiss an application for delay requires the moving party to establish:

1. 1) that the delay has been unreasonable in the sense that it is inordinate and inexcusable; and
2. 2) that there is a likelihood of prejudice to the moving party, giving rise to a substantial risk that a fair hearing will not be possible if the application proceeds.

The court must then consider all the relevant factors to determine what is just in the particular case.

In Gilmour, the application had been outstanding for 14 years. Justice Petersen looked to the reasons for the delay and found that both the Applicant and the Respondent had contributed to the delay and that neither party provided an adequate explanation for the prolonged delay. Justice Petersen acknowledged that the delay was in fact prejudicial to both parties given the fact that:

1. two of the original parties to the litigation had since passed and could no longer be cross-examined on their affidavit; and
2. some of the witness’s whereabouts were now unknown.

Even with a finding that it would be challenging for the parties to continue, Justice Petersen did not believe it would be just to grant a motion to dismiss based on delay given the circumstances.

In Rabinowitz v Rutman a motion was brought by the Respondents to dismiss the application for delay, with the Respondents claiming the Applicants had failed to move the litigation forward. The court looked at Justice Dietrich’s decision in Deutsche Postbank AG v Kosmayer, where she cited authorities for the proposition that the plaintiff is responsible for moving the action along.

In this case, Justice Cavanagh agreed that this principle applies to applications as well. His Honour ultimately dismissed the motion on the basis that while generally it was the responsibility of the Applicant to move the application along, the Respondents had brought a motion to dismiss the application on other grounds years earlier but never took steps to arrange for a hearing of their motion. For eleven years this motion sat outstanding, and neither party took steps to move it forward. Due to this, Justice Cavanagh felt that the Applicants were not principally responsible for an inordinate and inexcusable delay, and it would not be just to dismiss the application for delay.

These cases show us that while it is possible to dismiss an application for delay, there is a high bar to meet to be successful.

Thanks for reading!

Darien Murray