The consequences of inaction in litigation in Queensland Courts

Litigation in the Queensland Court system, as governed by the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), is largely driven by, and conducted at the pace of, the parties themselves.  However, there remain consequences where the parties fail to take any steps in the matter for extended periods of time.

Particularly, there are consequences where no step is taken in the proceedings for:

  • one (1) year; and
  • two (2) years.

Failure to take a step for one (1) year

Under rule 389(2) of the UCPR, where there has not been a step in one (1) year, a party wishing to progress the matter must first provide every other party with one (1) months’ notice of their intentions.

Failure to take a step for two (2) years

Under rule 389(3) of the UCPR, where there has not been a step for a period of two (2) years, a party wishing to advance the matter step must first obtain an order of the Court.  In these circumstances, it is apt to describe the matter as having gone “stale”.

What is a step?

In order for a step to have been made in litigation, the act that is purported to constitute a step must actually carry the matter forward.[1]

It has been previously decided by the Court that:

  • filing a notice to admit facts;[2]
  • filing an application for assessment of a bill of costs;[3] and
  • one party writing to the other and enclosing copies of consent order applications;[4]

constitutes a step for the purpose of rule 389 the UCPR; and

  • making an offer to settle that is not in accordance with the UCPR;[5]
  • filing a notice of discontinuance;[6] and
  • providing notice pursuant to rule 389(2) of the UCPR;

does not constitute a step for the purposes rule 389 of the UCPR.

Factors to be considered for the granting of order to take further step

The outcome of an application to progress a stale matter will be determined on the circumstances of each individual case.[7]  However, previously decided cases still provide an indication of what may be influential in obtaining an order to proceed.

Atkinson J in Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 expressed that the following factors are relevant in a Court’s exercise of its discretion to grant or refuse an application for an order to proceed:

  • how long ago the events alleged in the statement of claim occurred and what delay, if any, there was before the litigation was commenced;
  • how long ago the litigation was commenced or further causes of action were added;
  • the plaintiff’s prospects of success;
  • any past disobedience of Court orders;
  • any prior delays in the litigation;
  • who the delay is attributable to;
  • whether the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecuniosity;
  • whether the striking out of the plaintiff’s claim would end the litigation between the parties;
  • how far the litigation has progressed;
  • whether the delay was caused by the plaintiff’s solicitors;
  • whether there is a satisfactory explanation for the delay; and
  • whether the delay has resulted in prejudice to the defendant resulting in an inability to ensure a fair trial. [8]

Opposing an application for an order to take further step

It is common that a plaintiff’s (or applicant’s) application for an order to progress a stale matter is met with an application to have the matter dismissed for want of prosecution by the defendant (or respondent) pursuant to rule 280 of the UCPR.  The things that a Court will consider when hearing an application for dismissal for want of prosecution mirror those extracted above.

Defending an application for dismissal under rule 280 of the UCPR will only serve to increase the costs of litigation and for this reason plaintiffs should avoid letting matters go stale.

Learning points

The important takeaway of this article is that if you are involved in litigation as a plaintiff, or even as a defendant with a cross-claim, you should be wary of letting the matter go stale.  If you intend to progress the matter after a delay of two (2) or more years or, you will first need to seek an order from the Court.  This will only increase the costs of litigation and is likely to be met with an application to have the matter dismissed.

Cases

Concord Park Pty Lt v Allied Organik Ltd [2003] QDC 420.
Hunt v Smith [2001] QDC 4.
Lowndes v Delaney [2008] QDC 93.
Parsons v Mitchell [2013] QDC 57.
Robinson v Laws [2007] QSC 152.
Shammah Pty Ltd v Jewel [2005] QDC 315.
Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178

Legislation

Uniform Civil Procedure Rules 1999 (Qld)

Further information

If you are concerned about increasing delays in any civil litigation in which you are involved, either as a plaintiff or applicant, or a defendant or respondent, please call us for an obligation free and confidential discussion.

Matthew Robinson LL.B.,GDLP.,MQLS
Senior Associate
T: (07) 3221 0013 | 1300 386 529
E: mrobinson@dundaslawyers.com.au

Disclaimer
This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

Dundas Lawyers
Street Address Suite 12, Level 9, 320 Adelaide Street Brisbane QLD 4001

Tel: 07 3221 0013

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