Arcadia Holdings Pty Ltd v Brown

Arcadia Holdings Pty Ltd and All States Auto Imports Pty Ltd (plaintiffs) brought an action against Robert Brown, John Button, Dennis McLennan, Maxwell Huntington, Steven Allen, and the Commonwealth of Australia (defendants). The defendants applied to strike out the plaintiffs' action for want of prosecution. The application turned on the plaintiffs' failure to take any significant steps in the action over the later 12 months. However, this period of delay had to be seen against the background of the conduct of the proceedings as a whole. The court considered five paramount matters: (1) the length of the delay, (2) the explanation for the delay, (3) the hardship to the plaintiff if the action was dismissed and the cause of action left statute-barred, (4) the prejudice to the defendant if the action was allowed to proceed notwithstanding the delay, and (5) the conduct of the defendant in the litigation. The court found that the delay was unjustifiable and unexplained, and the plaintiffs could have put their pleading to rights more expeditiously. However, the consequences for the plaintiffs if the action was dismissed would be significant. Although the defendants would undoubtedly suffer a general prejudice, they had not suffered any particular prejudice. The court determined that this application ought to be dismissed and the action allowed to proceed, but warned that any further delay would be intolerable. The parties would be heard with respect to costs.