DISTRICT COURT OF QUEENSLAND

1. [1]
   The defendant applies for an order that the plaintiff’s claim be struck out for want of prosecution. The defendant submits this court has the power to strike out the proceeding pursuant to UCPR r 5(4) and r 280(1)(b), and s 85 Supreme Court of Queensland Act 1991 (Qld), as the plaintiff’s breached the implied undertaking within UCPR r (5)(3) and failed to take steps required by the rules.

2. [2]
   Those rules provide so far as is relevant:

5 Philosophy—overriding obligations of parties and court

(1)The purpose of these rules is to facilitate the just andexpeditious resolution of the real issues in civil proceedings ata minimum of expense.

(2)Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.

(3)In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.

(4)The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.

Example—

The court may dismiss a proceeding or impose a sanction as to costs, if, in breach of the implied undertaking, a plaintiff fails to proceed as required by these rules or an order of the court.

280 Default by plaintiff or applicant

(1)If—

(a)the plaintiff or applicant is required to take a step required by these rules or comply with an order of the court within a stated time; and

(b)the plaintiff or applicant does not do what is required within the time stated for doing the act; a defendant or respondent in the proceeding may apply to the court for an order dismissing the proceeding for want of prosecution.

3. [3]
   Section 85 of the Supreme Court of Queensland Act 1991 (Qld) provides so far as is relevant:

85 Dismissal of proceedings for want of prosecution

(1)This section applies to the District Court and Magistrates Courts.

(2)If 2 years have passed since the last step was taken in a proceeding, the court may dismiss the proceeding.

4. [4]
   The defendant’s counsel also referred to and relied upon what he submitted to be the court’s “inherent jurisdiction”. As a creature of statute the jurisdiction of the District Court of Queensland is limited to that bestowed by statute and thus it does not have an inherent jurisdiction similar to the Supreme Court’s. In Basha v Basha [2010] QCA 123 a plaintiff applied for leave to appeal against an order of a District Court judge dismissing that plaintiff’s claim for want for prosecution.  Despite a concession by that plaintiff’s counsel that the primary judge possessed jurisdiction to strike out the proceeding pursuant to the “inherent jurisdiction” Fraser JA^[1] observed that:

“Reference to the “inherent jurisdiction” should be understood as a reference to the implied power of an inferior court to strike out a proceeding to prevent an abuse of that court’s process or to s 69(1) of the District Court of Queensland Act 1967 (Qld), which confers on the District Court the powers and authorities of the Supreme Court for the purposes of exercising its civil jurisdiction, enabling it “in like manner and to like extent” to make any order a Supreme Court Judge might in a similar proceeding.”

5. [5]
   I respectfully adopt his Honour’s explanation.

The last step in the proceeding

6. [6]
   The plaintiff filed and served a fourth amended statement of claim on 6 December 2007. More than 18 months later on 18 June 2009 the plaintiff’s supplementary list of documents^[2] was served on the defendant.  The defendant submits this is the last relevant step, albeit an irregular one as the plaintiff failed to give a month’s notice of her intention to proceed under UCPR 389 (1).  There were no steps submitted to have been taken in the proceeding between 6 December 2007 and 18 June 2009 and no arguable step arises in that period from the activities in the chronology included below.

Did the defendant waive the plaintiff’s step’s irregularity?

7. [7]
   It follows that pursuant to UCPR r 389 (1) the plaintiff was required, before serving the supplementary list of documents, to give a month’s notice to the defendant of her intention to proceed. The plaintiff did not give that notice. Counsel for the defendant submitted that the service of the supplementary list of documents on 18 June 2009 was of no effect and could not constitute a step in the proceeding. He referred to an authority which he submitted was against his proposition though he did not analyse it or explain why it was an obstacle for the defendant. That case is Kanyilmaz v Nominal Defendant (Qld) [2000] QSC 180; BC 200004661.  There, Muir J, as his Honour then was, had before him a dispute as to whether delivery on 2 October 1997 of a supplementary affidavit of documents was invalid. No step having been taken for more than three years, the plaintiff had omitted to first obtain the leave of the court to proceed as was required by O 90 r 9 of the former Supreme Court Rules. Order 93 r 17 and r 18 provided, so far as is relevant:

“Non-compliance with rules

17(1)  Where,…at any stage in the course of…any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein…

Application to set aside for irregularity, when allowed

18 An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document…shall not be allowed unless it is made within a reasonable time, nor if the party applying has taken any fresh step after knowledge of the irregularity.”

8. [8]
   In Perez v Transfield (Qld) Pty Ltd (1979) Qd R 444 it was held that although the taking of a step out of time was an irregularity, it did not lead to the invalidity of the step, and the irregularity could be waived unless the other party moved to have the step set aside.  It was noted by Lucas J^[3] that the result was not in accordance with the intention of O 90 r 9 which concerned the need to give notice or make an application when no proceeding had been taken for more than one year or three years. 

9. [9]
   That reasoning was followed in Kanyilmaz. While that case was decided after the UCPR were in force the steps considered in that case occurred before the UCPR and the issue of whether there was a waiver was determined by reference to the Supreme Court Rules.  The circumstances are different before me because this proceeding has been conducted following the Uniform Civil Procedure Rules coming into force.

10. [10]
    Under O 93 r 18 the obligation to bring an application to set aside any proceedings for irregularity was an obligation to do so “within a reasonable time” or before “the party applying has taken any fresh step after knowledge of the irregularity”. In Kanyilmaz the irregular proceeding^[4] occurred on 2 October 1997 and the application to declare that the irregular proceeding was a step in the proceeding was brought on 12 January 2000. 

11. [11]
    The UCPR do not contain the equivalent of O 93 r 18 of the former Supreme Court Rules.  That is to say, nothing within the UCPR expressly requires a defendant to make an application “within a reasonable time” to set aside a step taken by a plaintiff for irregularity.  In Kalnyilmaz the plaintiff’s service of a supplementary list of documents on 18 June 2009 without first giving a notice under UCPR r 389 (1) was an irregularity and did not render the step a nullity.^[5] 

12. [12]
    Counsel for the plaintiff before me impliedly relied on his opponent’s suggestion that Kanyilmaz was authority, albeit incorrect on defendant’s counsel’s submission, for a proposition that unless a party applies to set aside an irregular proceeding within a reasonable time the party will waive the irregularity.

13. [13]
    I reject the defendant’s counsel’s submission that Kanyilmaz was incorrectly decided. However, the circumstances in Kanyilmaz are distinguishable and I do not regard Kanyilmaz as being an authority against the defendant or for the plaintiff. The issue in Kanyilmaz was whether a step irregularly taken in 1997 could be the subject of complaint in January 2000. His Honour made a decision based upon an irregular step in 1997 and the lack of an application to set it aside from 1997 for 2 years and 2 months. The UCPR commenced on 1 July 1999, 21 months after the defendant’s failure to apply to set aside the irregular step. Order 93 rule 18 governed matters during that 21 months and prohibited an application to set aside the irregular step unless it was made “within a reasonable time”. O 93 r18 with its unintended consequence^[6] is not repeated in the UCPR. No rule in the UCPR expressly requires a party to apply within a reasonable time to set aside a step for irregularity. Perez is similarly distinguishable.

14. [14]
    In the absence of such a rule, it may be that a party can waive an irregularity. The plaintiff did not raise that argument and it was not the subject of submissions. There was no submission that the defendant by conduct or by inaction waived the irregularity. There was no submission that the passage of time constitutes a waiver. I do not regard the irregularity as having been waived.

15. [15]
    The plaintiff’s counsel submitted that the last “formal step taken in the proceeding was the seeking of disclosed documents on 11 December 2009.” There was no analysis of authority to support the submission. The request made for documents not disclosed and not shown to be directly relevant is not performance of an obligation in the UCPR and did not progress the proceeding towards a conclusion. I find that it was not a step in the proceeding within the meaning of those words in r 389.

16. [16]
    Apart from the submission by the defendant’s counsel that the service of the supplementary list of documents on 18 June 2009 was of no effect, he attacked it on another basis that it was “self serving”. In litigation it is appropriate to be self serving. The submission was supported by the observation that most documents added by the supplementary list should have been disclosed years before. I infer that counsel was submitting that it was delivered to manufacture a step in the proceeding which was not to advance the proceeding towards a conclusion or to perform a duty under the rules. A comparison of the plaintiff’s list of documents delivered in 2003^[7] and her list of documents served on 18 June 2009^[8] reveals that the supplementary list of documents added the following documents which had not appeared in the earlier list of documents:

1. Report from Dr McMenamin dated 19.08.99.
2. Letter of instruction to Dr Reddan dated 22.01.04.
3. Report from Dr Gill Reddan 08.04.04.
4. Report from Processor C Quadrio 18.08.04.
5. Report from Processor C Quadrio 22.12.04.
6. Medicare Australia Notice of Past Benefits 22.02.08.
7. Medibank Private Statement of Benefits paid 01.01.99 to 06.03.03.
8. Extracts of the 1996, 1997, 1998, 1999, 2000 and 2001 Income Tax      Returns dated those years.
9. Estimate of Income Tax Assessment FYE 2001 dated 10.05.02.
10. Diary entries 03.07.95 to 04.01.99 (made by plaintiff).
11. Document entitled “Case Against John McArthur” dated October 2000.
12. Letter of Cathy Uzsoki dated 16.11.00.
13. Document entitled “Confidential Report – Case Against John McArthur” undated.
14. Document entitled “Summary of Key Dates” dated 24.03.01.
15. Statement of Cathy Uzsoki 03.09.05.
16. Statement of Cathy Uzsoki 03.03.09.

17. [17]
    Most of those documents, if they were proper subjects for disclosure, should have been disclosed years earlier than the last regular step in December 2007. Two documents were created after December 2007. A statement by the plaintiff dated 03.03.09 and the Medicare Australia Notice of Past Benefits dated 22.02.08 are unlikely to be proper for disclosure unless they related to damages. The propriety of their disclosure was not the subject of submissions. If they were relevant to damages as seems likely, by UCPR r 221 it was proper to disclose them only if the defendant asked for disclosure of them. Without evidence of whether the defendant asked for documents related to damages or any submission about them I am not satisfied that the supplementary list was delivered to manufacture a step in the proceeding.

18. [18]
    While I am satisfied that service of the supplementary list of documents was irregular, I am not satisfied that the supplementary list of documents was not a step in the proceeding. I see that its quality as a step in performance of a duty under the rules or as a step in bringing the proceeding closer to a conclusion was minimal.

19. [19]
    The last step in the proceedings which was a regular step was taken on 6 December 2007. A step taken on 18 June 2009 was irregular for failure to first give a notice of intention to proceed. There was no argument about whether the provision of documents by the plaintiff’s solicitors to the defendant’s solicitors on 25 November 2009 was a step. If the documents were such that there was an obligation to disclose them, then provision of the documents is arguably a step albeit an irregular one.^[9] There was no argument about this possibility. There was no exploration of whether the documents were proper subjects for disclosure. In any event, even if the provision of documents was an irregular step, it does not impeach the defendant’s argument that a notice of intention to proceed was required. The provision of documents was not preceded by a notice of intention to proceed and there was no argument raised for the plaintiff that the defendant has waived a liberty to complain about its irregularity.

Other proceedings

20. [20]
    Maurice Blackburn Cashman solicitors were instructed in 2001 by the plaintiff; by other plaintiffs: Brown, C. Pickering, M. Pickering and Turnbull; and another individual to pursue claims for damages against the defendant for psychological injury allegedly sustained as a result of the defendant’s conduct whilst carrying on the business of massage therapist.^[10]

21. [21]
    Proceedings by Purvis (another plaintiff) were discontinued. Proceedings by the plaintiff Brown came to an end on 21 June 2007 as a result of an order by McGill DCJ. The defendant said that they were “struck out”. It appears likely that it was dismissed on the defendant’s summary judgment application in reliance on a limitation defence.^[11] Proceedings by the plaintiff Turnbull and each of the Pickerings were dismissed for want of prosecution by order of McGill DCJ on 19 March 2010. 

22. [22]
    On 16 November 2000 a company, Justice Through Integrity Pty Ltd, was registered with 20 shareholders. Six of them were the six plaintiffs who instructed Maurice Blackburn Cashman solicitors. In or about March 2001 each shareholder commenced an action in the Supreme Court of Queensland against the defendant and his wife seeking a declaration that they had engaged in misleading or deceptive conduct in breach of s 38(1) of the Fair Trading Act 1989 (Qld) and seeking an injunction to restrain them from publishing allegedly misleading and deceptive representations.  In about September 2001, the plaintiff – Brown, and two other shareholders of JTI filed complaints with the Anti-Discrimination Commission about the conduct of the defendant as a massage therapist.  The complaints were dismissed as being out of time.  In all, seven District Court personal injuries claims were brought against the defendant by shareholders of JTI.

23. [23]
    The defendant has incurred legal fees in defending the seven District Court personal injuries claims, the criminal proceedings, the Supreme Court application, the anti-discrimination action and otherwise in dealing with the various plaintiffs and the company. Those fees are approximately $600,000 to date.

24. [24]
    The defendant’s counsel accepted that the defendant’s application was not an application to establish that the plaintiff’s proceeding was being brought for a collateral purpose.

25. [25]
    Counsel for the plaintiff submitted that the other proceedings had a limited relevance. He submitted that it was reasonable for the plaintiff to be interested in the outcome of the other similar proceedings and to delay the progress of her proceeding to await the outcome of the application in Pickering v McArthur (No. 2) [2010] QDC 90 to dismiss the three proceedings by C and M Pickering and by Turnbull for want of prosecution and to await the outcome of the appeal in Pickering & Anor v McArthur [2010] QCA 341.  I accept that it was reasonable for the plaintiff to have regard to the other proceedings and the rulings made in them.

26. [26]
    I note the observations in Pickering & Anor v McArthur [2010] QCA 341 at [16] and [17].  I respectfully adopted the observations of McGill SC DCJ set out therein as applicable to this proceeding between the plaintiff Uzsoki and the defendant:

“That this particular plaintiff may have been involved in other proceedings against the defendant may in theory be of some relevance in relation to the progress of this matter, since sometimes when there are multiple legal proceedings on foot one is advanced at the expense of others.  But no argument was advanced on either side that that was a relevant consideration here.  That the defendant feels that the proceedings are motivated by a desire to persecute and harass him is not I think a relevant consideration.  In so far as the defendant complains of stress, concern and hardship associated with the continuation of these proceedings, that is understandable and a relevant consideration in relation to applications of this nature, but otherwise what has happened in relation to other proceedings brought by these plaintiffs and other people against him, or other matters which he seeks to characterise as harassment, are generally irrelevant to anything I have to decide.”

27. [27]
    The defendant continues to feel constantly anxious, unable to plan, frustrated at having to put money aside to fund litigation and he finds it increasingly difficult to deal with the plaintiff’s claims. He lives in Canada.  He has no insurance to cover the cost of the litigation.  He funds his defence from his and his wife’s income.

Chronology of events

      UCPR r 280

28. [28]
    When considering whether to dismiss an action for want of prosecution or whether to give leave to proceed under r 389, it has been held,^[15] and both counsel accepted before me, that the court’s discretion is not fettered by rigid rules though the factors which a court will take into account include those in the following list:

3. (1)
   How long ago the events alleged in the statement of claim occurred and what delay there was before the litigation commenced;

3. (2)
   How long ago the litigation was commenced or causes of action were added;

3. (3)
   What prospects the plaintiff has of success in the action;

3. (4)
   Whether or not there has been disobedience of court orders or directions;

3. (5)
   Whether or not the litigation has been characterised by periods of delay;

3. (6)
   Whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;

3. (7)
   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;

3. (8)
   Whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim;

3. (9)
   How far the litigation has progressed;

3. (10)
   Whether or not the delay has been caused by the plaintiff’s lawyers being dilatory. Such dilatoriness 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 advisors;

3. (11)
   Whether there is a satisfactory explanation for the delay; and

3. (12)
   Whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.

How long ago did the events alleged in the Statement of Claim occur?

29. [29]
    The events occurred between 16 and 12 years ago.

How long ago was the litigation commenced?

30. [30]
    Litigation commenced on 9 April 2001 with a claim for damages for personal injuries and other loss and damage as a result of the negligence of the defendant. There were other claims since abandoned.

What are the plaintiff’s prospects of success?

31. [31]
    It is the fourth Amended Statement of Claim which contains the current alleged cause of action. In a very similar form, the further further Amended Statement of Claim was considered in the Court of Appeal.^[16]  The current pleading alleges that the defendant carried on business as a massage therapist, that he held himself out as a counsellor, that in the course of giving the plaintiff massages between mid 1995 and about 1999 he counselled her as to her relationships and personal life and in that context advised her that she needed a relationship with a man; that he engaged in inappropriate sexual behaviour during the course of the massages by telling the plaintiff that he loved her like a sister and by massaging her in positions where her genitalia were exposed; that he knew or ought to have known that the plaintiff would rely on him to exercise due care and skill in providing the counselling; that the plaintiff’s reliance on him to exercise due care and skill in counselling was reasonable in the circumstances; that the defendant could reasonably foresee that a failure to exercise due care and skill in providing the counselling would result in injury to the plaintiff; and that he owed a duty to the plaintiff to take reasonable care to counsel her in accordance with the standard and responsibility of a trained and competent counsellor; that as a consequence of accepting the counselling the plaintiff experienced shame, guilt, discomfort and distress and that as a result of the counselling and the inappropriate behaviour^[17] she suffered chronic dysthymic disorder and an adjustment reaction with depression.

32. [32]
    Defendant’s counsel did not submit that the pleading did not disclose a cause of action.

33. [33]
    The plaintiff’s counsel effectively submitted that the pleaded claim was not so clearly untenable that it could not possibly succeed. He did not submit that it had good prospects. He did not make any submission about the strength of the tenable case. He read two affidavits of the plaintiff sworn 15 and 18 April 2011. Neither affidavit touches upon matters relevant to the strength or weakness of the plaintiff’s case. The plaintiff did depose that she relied upon the material previously filed in the action. I have reviewed the file as the plaintiff by her affidavit has relied upon it. It does not contain any affidavit from her which touches upon the strength or weakness of her tenable cause of action.

34. [34]
    The allegations are denied in the defence. The defendant relied on an affidavit sworn 13 April 2011 in which he denies the allegations made by the plaintiff “in their claim” which I take to mean that he denies the allegations in the fourth Amended Statement of Claim. My review of the file revealed that he had previously deposed that there was no sexual or intimate relationship or improper conduct and that he never told the plaintiff that she needed a relationship with a man.^[18]

35. [35]
    There are factual issues raised in the fourth amended statement of claim which will depend on oral evidence from the plaintiff. They will include: whether the defendant held himself out as a counsellor, whether he counselled the plaintiff as to various matters including her relationships, whether in that context he advised her that she needed a relationship with a man, whether in the course of massages the plaintiff’s genitalia were exposed to the defendant, whether he knew or ought to have known that the plaintiff would rely on his exercise of due care and skill in providing counselling, whether it was reasonable for the plaintiff to rely on him, and whether she reasonably expected him to exercise due care in the provision of counselling. In seeking to establish negligence the plaintiff gives particulars of other matters which will also depend upon her recollection and oral testimony. She alleges a failure to take reasonable care in the provision of counselling particularising that the defendant failed to enquire adequately or at all as to the nature and quality of her relationship with her former partner before or during the provision of counselling. Another particular was engaging in the inappropriate behaviour^[19] where it was either designed to or had the effect of rendering the plaintiff unable to extricate herself from the defendant’s influence or not accept the counselling.

36. [36]
    Any records kept by the defendant are lost or destroyed. The plaintiff must satisfy her onus primarily by persuading the court that her recollections are honest and despite the passage of years, are reliable.

37. [37]
    The plaintiff has difficulties because she bears the onus of proof that matters happened as she alleged. If she is found to be honest she must also be found to be reliable about these old conversations and body positions and lines of sight between the defendant and her genitalia.

38. [38]
    In an appeal in the proceedings brought by the Pickerings against the defendant, Chesterman JA observed relevantly to reliability of recollections (and fairness):

[7] Of particular importance is the fact that the determination of negligence alleged against the respondent depends (ignoring all other difficulties) upon what was said between the appellants and respondent on many occasions, some as long as 15 years ago. It is not possible to have a fair trial in such circumstances. It is beyond the reasonable capacity of human memory to recall with accuracy, unaffected by self interest, the terms of such old conversations.

39. [39]
    If the plaintiff is found honest and reliable in her recollections, that is not her last hurdle. She has further difficulty in proving that the defendant owed her the duties alleged, and in proving that her injuries are caused by the defendant’s breach of duty. Prima facie, the case appears a difficult one to win. Sometimes appearance is deceptive and evidence can make an apparently difficult case more promising. No material was put before me to show the strength of her case or how she will overcome its difficulties. The strength of the plaintiff’s case is an issue in this application and yet it has been left by her for conjecture. The absence of material from her about the strength of her case is relevant.^[20]

Whether or not there has been disobedience of court orders or directions

40. [40]
    No disobedience is alleged.

Delay, blame, lawyers, impecuniosity and explanations

41. [41]
    The plaintiff’s counsel attributes no blame for delay to the plaintiff’s solicitors and does not submit the plaintiff is impecunious. He submits there has not been a long delay, there has been significant time spent on appeals and any delay was caused by the plaintiff’s awaiting the outcome of applications in concurrent proceedings brought by the other plaintiffs against the defendant. The time spent on appeals in this proceeding appears to be about 3 weeks from 26.10.07. He attributes no blame to the defendant. The plaintiff herself deposed that the defendant sought a stay pending his criminal proceedings. She did not depose that it was agreed to. This was not raised as an excuse by her counsel. I make no finding about whether a stay or any indulgence was requested or agreed on 23.3.07. The criminal proceedings were discontinued on 26 June 2007. Any delay attributable to the defendant from this would be 3 months in 2007 and nearly four years ago. In considering whether the defendant should share blame for delay during the course of the proceeding, it is relevant that he was fighting on many fronts beyond this proceeding.

42. [42]
    Defendant’s counsel submitted the blame for delay is the plaintiff’s for breach of an implied undertaking in r 5 to proceed in an expeditious way. He also relied on a breach of the plaintiff’s duty at r 214 (2) of disclosure by delivery of a list of documents within 28 days of the close of pleadings or upon delivery of an amended pleading. The date of delivery of the plaintiff’s supplementary list of documents was years late and the delay unexplained. He relied too on the failure to provide a notice as required by r 389 (1) before delivery of the supplementary list of documents.

43. [43]
    The significance of those matters was to demonstrate that the defendant relied not just on a breach of an alleged implied undertaking in r 5 but also upon the breach of other procedural rules. He did this mindful of discussion in Basha where Fraser JA observed:

[21] One question agitated in the course of argument was whether or not r 5(4) empowers the courts to impose sanctions where a party has complied with all applicable procedural rules in the progress of the proceeding. In Ridolfi v Rigato Farms Pty Ltd de Jersey CJ with whose reasons McPherson JA and Williams J agreed, observed that r 5(3), “confirms each party’s obligation to proceed expeditiously, or risk sanctions (r 5(4)) which may include dismissal”. Similarly, in Quinlan v Rothwell de Jersey CJ observed that r 5 had gone to the length of “expressly confirming that breach of a party’s ‘implied undertaking’ ‘to proceed in an expeditious way’ may attract sanctions including, as per the proffered example, dismissal of the proceeding.” However, whether or not the power of dismissal in r 5(4) exists in the absence of any breach of the rules or a court order is academic. The evidence established that the appellant contravened many procedural rules in the course of the dilatory prosecution of his claim.

44. [44]
    Counsel for the plaintiff submitted that the defendant is not entitled to complain of the breach of procedural rules on this application unless the defendant can show he first complied with r 444. It was unclear whether he was submitting that the defendant should have written a r 444 letter before bringing this application or before complaining of the plaintiff’s alleged breach of r 5, or r 214 (2) or r 389 (1). UCPR r 443 and r 444, so far as appears relevant, provide:

443 Application of pt 8

This part applies to the following applications—

…

(c) an application under chapter 10, part 2…

444 Applicant’s letter to respondent

(1)Before making an application mentioned in rule 443, the applicant must write to the respondent specifying the following matters—

(a)the applicant’s complaint;

(b)a brief statement of the relevant facts;

(c)the relief sought by the applicant;

(d)why the applicant should have the relief;

(e)a time (at least 3 business days after the date of the letter) within which the respondent must reply to the letter (the nominated time)

(f)that the letter is written under this part.

45. [45]
    Rule 445 would require the plaintiff, had she received such a letter from the defendant written pursuant to r 444, to write specifying what she proposed to do in response to the defendant’s complaint and if applicable, why the defendant should not have the relief to be sought.

46. [46]
    Counsel for the plaintiff was unable to identify any particular rule under chapter 10, part 2 pursuant to which the current application is being or should have been brought by the defendant. Defendant’s counsel does not submit that the application to strike out for want of prosecution is an application under chapter 10, part 2. Rules 5 and 280 are not in chapter 10. It is arguable that the order sought is an order under r 371 (2) (e) being an order dealing generally with the proceeding where there has been a failure to comply with the rules. That rule is in chapter 10, part 2. The application is not brought pursuant to r 371 (2) (e).

47. [47]
    There would be no point in writing a r 444 letter to allow the plaintiff to rectify the breach of r 214 (2). It was rectified as far as could be by the plaintiff by delivery of the supplementary list of documents.

48. [48]
    If there is any merit to this argument by plaintiff’s counsel which I have missed I note that UCPR r 448 gives the court discretion to hear an application that does not comply with Pt 8 of Ch 11.  Good reason for hearing a non-compliant application arises where an issue between the parties will not be resolved other than by an application to the court even where the correspondence does not specifically comply with r 444 and r 445.^[21]  The application to strike out the proceeding for want of prosecution is opposed. I am satisfied that a letter asking the plaintiff’s consent to such a result would not have achieved any useful purpose. If the application can be categorised as one under chapter 10, part 2, I am prepared to determine it despite the defendant’s alleged non-compliance with r 443.

49. [49]
    There is no satisfactory explanation for the plaintiff’s delay and especially since 6 December 2007. Interest in the dismissal for want of prosecution of the Pickerings’ proceedings and the outcome of their appeals was not a reasonable excuse to delay prosecution of this proceeding. It should have encouraged expeditious prosecution of this proceeding. The lack of explanation favours the defendant.

50. [50]
    The litigation between the parties will conclude if the statement of claim is struck out. That favours the plaintiff.

51. [51]
    The plaintiff’s counsel says the matter can be ready in three months. It seems likely that one could have reasonably said that for the plaintiff in December 2007 as well. It seems that updated statements of loss and damage are required from each party and each side would wish to obtain a further psychiatric report.

 Whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.

52. [52]
    The unfairness of conducting a trial so dependent upon recollections rendered unreliable by long delay is one prejudice relied upon by the defendant. The other is the emotional toll upon the defendant. The unfairness of the trial so dependent on unreliable recollections is the more significant in this case. I am unsure whether this proceeding alone can be blamed for the toll upon the defendant. It was observed by Keane JA as his Honour then was in Page v The Central Queensland University [2006] QCA 478 at [24]:

     While it is true to say that the court will be reluctant to deny a litigant with an arguable case the opportunity for a fair trial of his or her claim, it must be emphasised that the opportunity in question is the opportunity for a fair trial. The court is not in the business of preserving the opportunity to conduct solemn farces in which parties and witnesses are invited to attempt to reconstruct recollections which have long since disappeared. Such a trial would not be fair for either party.

Conclusion

53. [53]
    The problematic case, the absence of material as to its strength, the absence of explanation for the plaintiff’s delays, the long period during which so little was done by the plaintiff to progress the proceeding, the unfairness of a trial based so heavily on the plaintiff’s memory of events rendered unreliable through the passage of time since the mid 1990s, the plaintiff’s irregular steps, the plaintiff’s breach of the implied undertaking in rule 5 and that no blame for delay is attributed to the defendant, are together sufficient to satisfy me that the defendant’s application should succeed. I will hear the parties on costs.