On 24 November 2005, the applicant instituted urgent proceedings for the granting of a provisional order under a certificate of urgency. A provisional order was granted on 13 December 2005. However, the applicant took no action in pursuance of the provisional order until 6 February 2014, nine years later, when the applicant set the matter down for confirmation of the provisional order. The respondent was in default and the application was unopposed.
The application for confirmation of the provisional order was dismissed.
A provisional order can become stale and valueless due to unreasonable delay in prosecuting confirmation proceedings. While there is no specific rule of court prescribing the period beyond which a provisional order becomes stale, it is within the court's discretion whether to allow proceedings to continue in the face of delay. Litigants must prosecute their cases with due expedition within a reasonable time. Where there is inordinate delay (such as nine years) without explanation in pursuing confirmation of a provisional order, the court may properly exercise its discretion to dismiss the application on the basis that the provisional order has become stale.
The court drew an analogy between provisional orders and summons, noting that just as a litigant who serves summons but takes no action until the summons are stale faces consequences, the same principle applies to provisional orders. The court referenced the "trenchant and pertinent remarks" of FLEMMING DJP in Molala concerning delay in prosecution generally, indicating approval of strict approaches to managing court delays and ensuring efficient case management.
This case reinforces the principle that litigants must prosecute their cases with due expedition and cannot allow matters to lie dormant for unreasonable periods without consequence. It establishes that while there is no fixed rule for when a provisional order becomes stale, courts will exercise their discretion to dismiss applications where there has been inordinate and unexplained delay, even where the application is unopposed. The case serves as a warning that provisional orders, like summons, have practical time limits and must be pursued diligently.