Dismissal for want of prosecution & potential prejudice issues

Robert Carl Klewer v Sydney Children’s Hospital Specialty Network [2017] NSWSC 88 considered an application to dismiss proceedings in circumstances where a person willing to act as tutor for the plaintiff could not be found.

Following a detailed summary of the history,  the court made an order such that the proceedings were dismissed. A possible later recommencement of the proceedings was referred to. As to potential prejudice should that occur:

…the decision of the High Court of Australia in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27.  That case is authority for the proposition that even where the Limitation Act does not apply, there comes a time when a plaintiff’s cause of action is so stale by the great effluxion of time that a defendant cannot receive a fair trial, the interests of justice will require a court to dismiss or permanently stay the proceedings.

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