Pacanowski & Anor v Wakerman & Ors

Pacanowski and another (the applicants) sought leave to appeal against a decision of the primary judge to dismiss their proceedings against Wakerman and others (the respondents) for want of prosecution. The applicants contended that the primary judge had erred in the exercise of discretion by dismissing the proceedings and that the dismissal amounted to a denial of procedural fairness, particularly given the presumptive prejudice arising from the delay.

The central legal issue before the Court of Appeal was whether the primary judge had correctly exercised their discretion in dismissing the applicants' proceedings for want of prosecution. This involved considering whether the delay in prosecuting the proceedings had caused presumptive prejudice to the respondents, and if so, whether that prejudice, in conjunction with other factors, justified the dismissal. The Court also had to determine if the dismissal constituted a denial of procedural fairness to the applicants.

The Court of Appeal found that the primary judge had not erred in the exercise of discretion. Their Honours held that the delay in prosecuting the proceedings was significant and had indeed given rise to a presumption of prejudice to the respondents. The applicants had failed to provide a satisfactory explanation for the delay or to demonstrate that the proceedings could still be prosecuted fairly. Consequently, the Court concluded that the dismissal of the proceedings was a proper exercise of the primary judge's discretion and did not occasion a denial of procedural fairness.

The summons for leave to appeal was accordingly dismissed with costs.