DISTRICT COURT OF QUEENSLAND

1. [1]
   Before the Court are two applications. The first in time is an application by the defendant for orders that the claim be struck out for want of prosecution pursuant to rule 280 UCPR. This application was filed on 25 June 2003 and served on the plaintiff soon after. The plaintiff’s application for leave to proceed pursuant to r 389 (2) UCPR was not filed until 8 August 2003.

2. [2]
   The plaintiff’s claim for declarations and appointment of trustee for the purpose of sale of a property at Petrie Creek Road was filed on 11 August 1997. The defendant’s defence was filed on 24 June 1998, together with a counterclaim for unpaid rent. In passing, I observe that this pleading contains a number of confusing typographical errors in which it appears the words “Plaintiff” and “Defendant” have been erroneously interchanged. It is common ground that since April 1999, the plaintiff has taken no steps to prosecute his claim. Their respective claims arise out of a de facto relationship which the plaintiff asserts was between 1985 and 1991 and the defendant asserts was between 1985 and 1986.

3. [3]
   The principles governing both applications are the same: Tyler v Custom Credit Corporation Limited [2000] QCA 178. The approach mandated by Atkinson J (with whom McMurdo P and McPherson JA concurred) in Tyler is to consider the relevant matters arising in relation to the exercise of discretion by reference to the issues set out in her Honour’s judgment. This was the approach I took in Smiley v Watson & Anor [2001] QDC 55 which was not criticised on appeal: Smiley v Watson & Anor [2001] QCA 269. Adopting the approach taken by Atkinson J in Tyler, I deal with the relevant issues in these applications.

4. [4]
   (1)How long ago the events alleged in the (plaint) occurred and what delay there was before the proceedings commenced 

The relationship ended either in 1986 or 1991 and proceedings were not commenced until 1997.

5. [5]
   (2)  Prospects of success: 

Mr Quayle advances a persuasive argument as to prospects in 4(c) of his written outline. I agree with him that there is at least strong prima facie evidence of a common intention to create a trust, in that (despite not being named as a registered proprietor of the land) the plaintiff nevertheless gave a joint mortgage with the defendant at the time of the purchase of the property in early 1987. The plaintiff also changed her name to “Fielding” on the 23 December 1986. Mr Gardiner did not address this issue in his oral submissions.

6. [6]
   (3) Whether or not the litigation has been characterised by delay:

As noted, both parties have been guilty of substantial delay.

7. [7]
   (4) Whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim.

 The equitable principles which underpin the plaintiff’s claim do not impose any time limits, therefore, theoretically, the plaintiff could re-institute the claim, although there might be issues of abuse of process that arise.

8. [8]
   (5) How far the litigation has progressed.

I agree with Mr Quayle that the proceedings were quite advanced when they stalled in 1999. At that stage, a request for trial date had been delivered. The issues are narrow and, although some repleading will be necessary on both sides, the matter could sensibly be ready for trial or mediation within a matter of months.

9. [9]
   (6) Was the delay caused by the plaintiff’s lawyers.

As I understand the facts, the plaintiff has continued to reside in a downstairs flat area of the property since 1991. She consulted Windsor Craig Solicitors in Nambour in August 1997, and Mr Connelly of that firm represented her until October 1998 when Mr Windsor took over the file. She says that Mr Windsor told her that she should be able to reside at the property for the rest of her life, as long as there were “no dramas” with the defendant. She has no legal training. She has not been involved in litigation before. She did not chase up Mr Windsor because she “thought it just took a long time and because I was living in the property there was no motivation to do so.” In December 2000, she says the defendant accused her of being a squatter and involved a T.V. show, “A Current Affair”, which caused her to be angry. She then contacted Mr Windsor and says she was “told nothing”. Her present solicitors obtained the file from Windsor Craig in June 2003 (at or about the time she became aware of the defendant’s application), and they have acted since. In the light of this, I do not think it is as clear cut as Mr Quayle suggests when he submits the delay “was squarely the fault of her lawyers”, although they certainly appear to have been guilty of delay.

10. [10]
    (7) Whether there is a satisfactory explanation for the delay:

Given the general philosophy of UCPR contained in rule 5, it is difficult to categorise the plaintiff’s explanation as “satisfactory”, however it is a frank and honest explanation.

11. [11]
    (8) Whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.

 There is no prejudice alleged by the defendant. It is a simple case, and the only evidence of real substance will be from the plaintiff and the defendant.

12. [12]
    This is clearly a case in which the discretion contained in rule 389 (2) should be exercised in favour of the plaintiff. As against that, her application for leave to proceed was very late in the day, which is relevant to costs. The defendant’s application is dismissed, and the plaintiff’s application for leave to take a step in the action is granted. I will hear submissions as to costs, and I invite the parties to agree to directions to enable the claim to be advanced appropriately.