What if neither party to proceedings takes a step?

It is common for legal proceedings to go for extended periods without any steps being taken by either party.  Each Court has its own rules limiting the actions that parties may take after extended periods of inaction.  In the Queensland Courts, these rules are contained in the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).

Continuing a proceeding after a one (1) year delay

Pursuant to rule 389(1) of the UCPR:

“If no step has been taken in a proceeding for 1 year from the time the last step was taken, a party who wants to proceed must, before taking any step in the proceeding, give a month’s notice to every other party of the party’s intention to proceed.”

The relevant “step” is the last step taken by either party, not the last step by the party wishing to continue the proceedings.

Continuing a proceeding after a two (2) year delay

Under rule 389(2) of the UCPR:

“If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.”

Atkinson J in Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 at [2], set out a number of factors that the Court may take into account when determining whether the interests of justice require a case to be dismissed.  These include:

  • how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
  • how long ago the litigation commenced or causes of action were added (and whether or not these causes of action are now statute-barred);
  • what prospects the plaintiff has of success in the action;
  • whether or not there has been disobedience of Court orders or directions;
  • whether or not the litigation has been characterised by periods of delay;
  • whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
  • whether or not 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 litigation between the parties would be concluded by the striking out of the plaintiff’s claim;
  • how far the litigation has progressed;
  • whether or not the delay has been caused by the plaintiff’s lawyers being tardy. Such tardiness will not necessarily be sheeted home to the client, but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
  • whether there is a satisfactory explanation for the delay; and
  • whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial (and whether or not that prejudice had been self-inflicted).

The Court will not take these factors as rigid rules, but will likely consider them in the context of all of the relevant circumstances of the particular case, including the consideration that members of the community are entitled to live their lives without the continuing threat of litigation and its consequences hanging over them.

The Court may also grant conditional leave to proceed.

Inordinate and inexcusable delay

The UCPR does not set down an exact period after which proceedings cannot be continued, the primary consideration is always whether the delay would give rise to a substantial risk of prejudice.  In Taylor v State of Queensland [2009] QSC 318 Lyons J granted leave to continue proceedings which had been commenced in 1997, as the proceedings had been characterised by long periods of delay and the particular circumstances of the case did not indicate that the matter could not be fairly tried.

Effect of failure to comply with rule 389

If either party attempts to continue delayed proceedings without giving notice or applying for leave, that step is rendered a nullity by virtue of rule 371 of the UCPR.

Takeaways

Given that the overriding purpose of the UCPR set out in rule 5 is to “facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense”, time is clearly of the essence.  Nonetheless, delays can occur in proceedings for a variety of valid reasons, and as such, mechanisms exist to allow proceedings to be continued even after a substantial period of inaction.

Further references

Cases

Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178

Taylor v State of Queensland [2009] QSC 318

Legislation

Uniform Civil Procedure Rules 1999 (Qld)

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Further information

If you need assistance with civil or intellectual property litigation, please telephone me for an obligation free and confidential discussion.

Brisbane Lawyers

Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
Telephone: (07) 3221 0013 | Mobile: 0419 726 535
e: mburrows@dundaslawyers.com.au

 

Disclaimer

This article is not legal advice. It is general comment only.  You are instructed not to rely on the commentary unless you have consulted one of our Lawyers to ascertain how the law applies to your particular circumstances.

 

Dundas Lawyers
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Tel: 07 3221 0013

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