A fundamental tenet of Queensland’s civil procedure rules is the “just and expeditious resolution” of disputes before the Courts.[1] It therefore should come as no surprise that Queensland Courts have never tolerated dilatory conduct in prosecuting civil proceedings.
The recent District Court decision in Usher v Palmer,[2] a dispute between warring neighbours, serves as a reminder that:
- plaintiffs must be diligent to ensure that their proceedings do not go stale. There is a relatively high threshold for what will be considered a step in the proceeding. Even if you are waiting on the Court for the next step, the onus is on you, as a party, to press the proceeding forward; and,
- defendants should be cautious of the risk of their actions being considered steps in the proceeding. Consider the bigger picture and strategic advantage in action or inaction at any given time in litigation.
Whether you are plaintiff or defendant, the risk of proceedings going stale is a factor both sides to any dispute must keep in mind.
Background
In December 2018, the plaintiff (Usher) sued the defendant (Palmer) in the Supreme Court for defamation seeking damages of $800,000.00. The claim arose from a New Year’s Eve argument between neighbours in an affluent waterfront area on the Sunshine Coast. Usher alleged that during the argument (about a speeding jet ski damaging a boat) Palmer (an ex-police officer) accused Usher of being a paedophile in front of his children and other neighbours.
The defendant filed an application that the claim be dismissed for want of prosecution under section 22 of the Civil Proceedings Act 2011 (Qld). Section 22 provides that, if two years have passed since the last step was taken in a District Court or Magistrates Court proceeding, the Court may dismiss the proceeding.[3]
The plaintiff cross-applied for orders dismissing the defendant’s application and seeking leave to continue with the proceeding under rule 389(2) of the Uniform Civil Procedure Rules 1999 (Qld). Rule 389(2) provides that if no step has been taken in a proceeding for two years since the last step, a new step may not be taken without the Court’s leave.[4]
When was the last step in the proceeding taken?
The plaintiff argued that the defendant’s application to a costs assessor for default assessment was the last step (on a date less than one year prior). The Court rejected this argument, noting that the mere making of an application to the costs assessor, in circumstances where the application was not granted and the assessment was ongoing, meant that the application has not carried that aspect of the proceeding towards conclusion.
The Court decided that the Request for Trial Date (filed over two years prior) was the last step, even though other procedural steps had taken place after that date (including a case conference with the Resolution Registrar, remittance of the proceeding to the District Court, and notice that the defendant changed solicitors).
Fundamental to this decision was the fact that this was the last procedural step that progressed the pleading towards conclusion. Notably, if the costs assessment had been completed it would likely have constituted a step in the proceeding.
Should claim be dismissed?
Having decided that the last step was over two years ago, the Court’s discretion to dismiss the claim arose.
The Court noted that although the Request for Trial Date did not result in trial dates being allocated, the plaintiff was “not entitled to sit on his hands and ignore the obvious fact that something was amiss”.
The plaintiff’s lack of action and failure to make enquiries to ensure the proceeding was listed was at the core of the Court’s conclusion that the plaintiff ought not be granted leave to take a further step. The defendant’s application for dismissal of the proceeding was granted.
[1]Uniform Civil Procedure Rules 1999 (Qld) rule 5.
[2]Usher v Palmer [2023] QDC 003.
[3] The Supreme Court has inherent jurisdiction to dismiss proceedings for want of prosecution.
[4] Pursuant to rule 389(1), if no step has been taken in a proceeding for one year since the last step, a party who wants to proceed must give a month’s notice to every other party of the party’s intention to proceed.
This article was written by GRT Lawyers, Elizabeth Dowrie (Associate).
Glenn Vassallo (Managing Director), Scott Standen (Director) and Ashley Hill (Director) can assist you with any queries in relation to your corporate legal requirements.
