9 It was apparent at that time (13 June 2008), that an order of dismissal of the proceedings was being sought but, on that occasion, her Honour stayed the Court's hand in that respect, clearly giving the Plaintiff an opportunity (and, one would have thought, a final opportunity) to take a step in the proceeding in accordance with the order of the Court. He has not done so.
10 The affidavit of Ms Burke affirmed 30 January 2009 goes on to recite that the Plaintiff brought proceedings in the Court of Appeal which were dismissed by that Court on 24 September 2008: Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Others [2008] NSWCA 227.
11 On 3 October 2008, the matter was listed for a directions hearing and Registrar Bradford made yet another order that the Plaintiff file and serve an Amended Statement of Claim reflecting the orders of Simpson J and Harrison AsJ by 7 November 2008, and that he respond to the request for particulars by 21 November 2008. The Plaintiff has not complied with those orders.
12 The present application seeks dismissal of the proceedings under r.12.7 UCPR. Section 56 Civil Procedure Act 2005 places a statutory obligation on litigants to take steps to facilitate the just, quick and cheap resolution of the real issues in proceedings. That obligation binds the Plaintiff. The history which I have recited reveals that, for a lengthy period of time, the Plaintiff has simply failed, indeed refused, to comply with orders of the Court. He has been placed on notice that the Defendant would seek dismissal of the proceedings because of his failure to comply with orders of the Court. He has been extended opportunities on a number of occasions, with timetables being reset to permit further opportunities to comply with the orders of the Court.
13 Proceedings in this Court involve a wide range of litigants who are entitled to have the resources of the Court applied appropriately and fairly to determine their cases. There is not an endless supply of judicial resources available for litigation to proceed, in an open-ended fashion, despite the fact that a litigant does not comply with orders of the Court.
14 The present proceedings have been on foot for more than five years. The provisions of ss.56-61 Civil Procedure Act 2005 require the Court to have regard, amongst other things, to the timely disposal of proceedings and all other proceedings in the Court, at a cost affordable to the respective parties, to the efficient use of available judicial and administrative resources and the efficient disposal of the business of the Court. The Court must have regard to the dictates of justice, but all of these matters are related to the function of the Court, and the obligation of litigants, to progress litigation.
15 In my view, the evidence before the Court clearly demonstrates a foundation for the order claimed in the Notice of Motion. The proceedings have been on foot for years, and orders of the Court have simply not been complied with for the last year. Courts should not stand by and permit endless opportunities to a litigant, where reasonable and fair opportunities have been provided in the past on a number of occasions. The time has come, in my view, for orders to be made in accordance with the Notice of Motion. I understand that this step is an exceptional one and it is a power not to be lightly exercised (Hoser v Hartcher [1999] NSWSC 527 at [19]-[30]; Fairey v Fairey (No. 2 ) [2000] NSWCA 173 at [52]). However, the circumstances of this case, in my view, provide a clear foundation for the exercise of the power.
16 I make the following orders: