National Parks and Wildlife Service v Pierson

The National Parks and Wildlife Service (the Claimant) sought to restore proceedings that had been struck out by the District Court for non-compliance with court directions. The Claimant made an initial application to restore the proceedings, which was dismissed because the default had not been rectified. Subsequently, the Claimant made a second application to restore the proceedings after the default had been cured. The matter came before the Supreme Court of New South Wales, Court of Appeal, concerning whether this second application constituted an abuse of process.

The Court of Appeal was required to determine whether a second application to restore struck-out proceedings, made after an initial application was dismissed due to unrectified default, is an abuse of process, particularly when the default is cured between the two applications. The Court also considered the principles governing applications to restore proceedings or lift stays, and how these principles apply when a party seeks to revive litigation after it has been dismissed.

The Court held that, as a general rule, an application to restore struck-out proceedings should only be made once the plaintiff's default has been cured. If an initial application is dismissed because the default remains uncured, a subsequent application made before the default is rectified will typically be dismissed as an abuse of process due to the absence of a relevant change in circumstances. However, a second application made after the default has been cured cannot be considered an abuse of process, as there will have been a material change in circumstances justifying the renewed application. The Court noted that exceptions to this general rule would be rare.

The applications for leave to appeal were refused, and the Claimant was ordered to pay the Opponent’s costs of the applications.