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[2026] NSWSC 817
Supreme Court of NSW
2026-06-05
Muston J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Shillingsworth v State of New South Wales [2026] NSWSC 817
Hearing dates: 5 June 2026
Date of orders: 5 June 2026
Decision date: 05 June 2026
Jurisdiction: Common Law
Before: Muston J
Decision: (1) Pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005, the proceedings are dismissed for want of due dispatch.
(2) The plaintiff is to pay the defendant's costs of the proceedings.
Catchwords: CIVIL PROCEDURE — application for dismissal of proceedings for want of dispatch — no issue of principle
Legislation Cited: Limitation Act 1969 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) r 12.7
Cases Cited: Ghosh v Ninemsn Pty Ltd & Ors (2015) 90 NSWLR 595; [2015] NSWCCA 334
Category: Procedural rulings
Parties: Bradley Dennis Shillingsworth (Plaintiff)
State of New South Wales (Defendant)
Representation: Counsel:
No appearance (Plaintiff)
N Bentley (Defendant) (solicitor-advocate)
Solicitors:
Self-represented (Plaintiff)
Wotton Kearney (Defendant)
File Number(s): 2023/00313135
The defendant has made an application pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) seeking orders that the proceeding be dismissed for want of due dispatch.
The circumstances in which the application has arisen can be described briefly. The proceedings were commenced by the plaintiff on 3 October 2023. The parties attended a mediation on 12 June 2024, which was unsuccessful. Thereafter, on 20 May 2025, the parties appeared before Garling J and the matter was fixed for hearing on 23 February 2026 with an estimate of 7 days.
On 31 October 2025, the matter was listed before Coleman J and case management orders were made in preparation for that hearing. On 12 December 2025, the matter again came before Coleman J, on which occasion the hearing date of 23 February 2026 was confirmed.
As at 19 January 2026, the plaintiff was in default of the case management orders which had been made by Coleman J. On that occasion, his then solicitors contacted the plaintiff's de facto partner and advised that they needed to discuss the matter with him urgently. The plaintiff’s de facto partner indicated that he would be available to speak to them during a teleconference on 20 January 2026; albeit he did not have his own telephone.
On 20 January 2026, the plaintiff’s then-solicitors made attempts to contact the plaintiff via his de facto partner. The details of those attempts need not be rehearsed, save to note that they did not result in a conference between the plaintiff and his then-solicitors. The plaintiff’s then-solicitors were told by his de facto partner that he wished to obtain alternative legal representation. There has been no communication between the plaintiff and his then-solicitors since that time.
On or around 29 January 2026, the plaintiff's now-former solicitors filed a Notice of Intention of Ceasing to Act. On 13 February 2026, Coleman J vacated the hearing date so as to enable the plaintiff to have an opportunity to engage further legal representation. On that occasion, his Honour directed that the plaintiff's former solicitors notify him that the matter had been listed for directions on 27 March 2026. They did so on 18 February 2026. In that communication, the plaintiff’s former solicitors also made clear that they had ceased acting for him and that he was required to appear personally on 27 March 2026 if he did not, at that time, have legal representation. A Notice of Ceasing to Act was filed on the same day.
On 27 March 2026, the matter again came before Coleman J. There was no appearance by the plaintiff. The defendant asked for the proceedings to be dismissed for want of due dispatch. His Honour was not inclined to make those orders, indicating instead that the plaintiff should be given further time to appear, and that the defendant should take steps to contact the plaintiff and advise him of the defendant's intention to have the matter dismissed for want of due dispatch. Since that time, various attempts have been made to contact the plaintiff by email and by way of personal service.
Despite these attempts, there has been no further direct communication between the solicitors for the defendant and the plaintiff.
On 26 May 2026, a process server attended the address given for the plaintiff in the Notice of Ceasing to Act, filed by his former solicitors. The process server attempted to serve on the plaintiff correspondence in relation to the matter. A report was received from the process server which indicated that he had spoken to the plaintiff's ex-partner who had, in turn, advised that the plaintiff no longer resided with her, that he had left that address over two months earlier, and that she was currently unaware of his whereabouts. The report went on to note that the plaintiff's former partner had indicated that the plaintiff is apparently heavily dependent on drugs and alcohol.
Attempts have since been made by the solicitors for the defendant to identify an alternate address for the plaintiff. A search was conducted of the Australian Electoral Commission records; the address maintained within those records for the plaintiff was the same as that listed in the plaintiff's former solicitor's Notice of Ceasing to Act. The defendant is presently unaware of the location or contact details of the plaintiff beyond those which are contained in the Notice of Ceasing to Act.
When the matter came before me today, it was called three times and there was no appearance by or on behalf of the plaintiff.
Rule 12.7 of the UCPR expressly provides that, if a plaintiff does not prosecute the proceeding with due dispatch, the Court may order that the proceeding be dismissed or make such other orders as the Court thinks fit.
The discretion to dismiss proceedings — and the principles that are to be applied in the exercise of that discretion — was discussed by the Court of Appeal in Ghosh v Ninemsn Pty Ltd & Ors (2015) 90 NSWLR 595; [2015] NSWCCA 334 at [40]-[43]:
“40 The discretion to dismiss proceedings that UCPR r 12.7 confers if a plaintiff does not proceed with ‘due despatch’ is broad and should not be confined by rigid formulae (Stollznow v Calvert [1980] 2 NSWLR 749 at 751 and Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [51] in relation to the comparable power under earlier rules to dismiss for want of prosecution). As Walsh JA said in Witten v Lombard Australia Ltd [1968] 2 NSWR 529; 88 WN (Pt 1) (NSW) 405:
‘Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory. It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised’ (at 412).
41 As the primary judge properly found, relevant delay in this context is not confined to that which is caused by a lack of activity, it extends to a delay arising out of a ‘want of constructive activity’ (see [30] above).
42 Importantly, the Civil Procedure Act now also adds the overriding purpose of that Act and the rules of court in facilitating ‘the just, quick and cheap resolution of the real issues in the proceedings’ to the matters to be considered (s 56). As well, s 57 includes the ‘efficient use of available judicial and administrative resources’ amongst the objects to which regard is to be had in managing court proceedings, s 59 requires delay to be eliminated so far as possible and s 60 requires the court to take into account the object of ‘resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute’.
43 These considerations are of fundamental importance in determining an application for the dismissal of proceedings for want of due despatch, as they are to all other aspects of the conduct of civil litigation in this State. The primary judge had appropriate regard to these provisions in arriving at her decision to dismiss the proceedings.”
I adopt that helpful summary.
In the circumstances described above, I am satisfied that the plaintiff has failed to prosecute the proceedings with due dispatch.
In determining whether it is appropriate to dismiss the proceedings under r 12.7, I have had particular regard to the fact the plaintiff's claim has no limitation period by reason of s 6A of the Limitation Act 1969 (NSW).
In those circumstances, I consider it appropriate to dismiss the proceedings and I make the following orders:
Pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed for want of due dispatch.
The plaintiff is to pay the defendant's costs of the proceedings.
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Shillingsworth
State of New South Wales