By Stuart Eustice, Partner and Gregor Campbell, Associate
The Court of Appeal recently refused the grant of leave sought from a County Court which first instance decision dismissed the plaintiff’s proceedings for want of prosecution.
The applicant (plaintiff at first instance) commenced proceedings in November 2020 alleging that the respondent, Gannawarra Shire Council failed to remove tree roots after having removed trees adjacent to the applicant’s property in 2017, the roots then causing property damage.
Over more than five years, the proceeding was the subject of repeated case management interventions with the applicant failing on numerous occasions to comply with court orders requiring discovery, particulars of loss, financial documents, expert evidence and participation in mediation. Three firms of solicitors ceased acting for the applicant, trial dates were vacated, and lengthy periods of inactivity occurred.
The respondent twice unsuccessfully sought dismissal of the proceeding before ultimately succeeding on its third application in March 2026.
The County Court dismissed the proceeding after finding a sustained pattern of “delay and non-compliance” by the applicant. The Court identified repeated failures by the applicant to comply with procedural orders and noted that court timetables had been amended on numerous occasions.
The County Court found that the delay caused material prejudice to the respondent, including:
Although a fair trial might still have been possible, the County Court concluded that the interests of justice no longer justified the proceeding to continue. In particular, the County Court highlighted the ‘numerous indulgences’ the Court and the respondent had provided to the applicant on the basis that its director had health or other difficulties, and on the basis that it had not had solicitors acting for periods of the proceeding.
The judge also ordered standard costs up to 30 April 2025 and indemnity costs thereafter, finding that the applicant’s conduct after that date (being the date when the applicant’s third set of solicitors went on the record) breached its obligations under the Civil Procedure Act 2010 (Vic).
The applicant advanced eight grounds of appeal, broadly alleging errors concerning:
The Court of Appeal rejected each of the applicant’s grounds of appeal.
It held that the delay was plainly inordinate and largely unexplained. While the applicant relied on health issues, changes of solicitors and financial hardship, those matters did not adequately explain years of non-compliance and inactivity. The Court of Appeal emphasised the applicant had been given numerous extensions and indulgences and had already faced and avoided two earlier dismissal applications.
The Court of Appeal further accepted the respondent had suffered substantial prejudice. In particular, the claim remained inadequately particularised, expert evidence had become stale, costs had significantly increased and potential witnesses had become difficult to locate or their memories affected.
The Court oof Appeal holding that a dismissal was consistent with the overarching purpose of the Civil Procedure Act, which requires the just, efficient, timely and cost-effective resolution of disputes. Having regard to the history of repeated delay and non-compliance, no further case-management order was likely to be effective.
The indemnity costs order was also upheld. The Court found that after new solicitors were appointed on 30 April 2025, no meaningful steps were taken to progress the proceeding, despite the applicant being aware of the risk of dismissal given the two prior applications.
Dismissal for want of prosecution remains a remedy of last resort and are often difficult to obtain in the first instance, but they can be justified where prolonged and unexplained delay causes substantial prejudice. Repeated non-compliance with case management orders is also significant factor in assessing whether dismissal is appropriate. In the case instant it took 3 applications over a 6year period for the Court to conclude justice no longer justified the continuance of the proceeding.
Parties’ and practitioners should remain at all times aware of their overarching obligations under the Civil Procedure Act 2010 (Vic), including obligations to minimise delay and facilitate efficient resolution of proceedings. Persistent inactivity after repeated judicial indulgence may justify both dismissal of a proceeding and an award of indemnity costs.
If you would like further information or have any queries regarding other matters, please do not hesitate to contact:
