DISTRICT COURT OF QUEENSLAND

The issues

2. [2]
   This is an application pursuant to r 389(2) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).  The plaintiff is seeking leave to proceed after an alleged delay of more than two years without a step being taken in the proceeding.

3. [3]
   Alternatively, counsel for the applicant has submitted that upon analysis of the steps that have been taken, the court will be satisfied that there has not been a period of two years during which no step has been taken in the proceeding. Counsel submits that if the court takes that view then a declaration to that effect should be made.

4. [4]
   Counsel for the applicant has conceded however that even if the court takes the view that no period of two years elapsed without a step being taken in the proceeding, there has nevertheless been a failure on the part of the applicant to give one month’s notice to the defendants, as required by r 371(2) of the UCPR after a period of 12 months had passed without a step being taken.

5. [5]
   The application is contested. Counsel for the respondents has submitted that the court should find that during the history of this matter a period of greater than two years elapsed without the applicant taking a step in the proceeding and that in the exercise of the court’s discretion, leave to proceed pursuant to r 389(2) of the UCPR should be refused.  Alternatively, counsel for the respondents has submitted that even if the court finds that no period of two years elapsed during which the plaintiff failed to take a step in the proceeding, the court would nevertheless be satisfied that the applicant has failed to take a step in the proceeding for a period in excess of twelve months and has failed to provide a month’s notice to the defendants indicating the applicant’s intention to proceed as required by the provisions of r 389(1) UCPR.

6. [6]
   The questions for determination therefore are:

1. (i)
   Has a period of two years passed between steps in the proceeding?

2. (ii)
   If so, should the court order that the applicant be permitted to take a new step?

3. (iii)
   If not, has more than one year passed between steps in the proceeding?

4. (iv)
   If so, given that the requisite notice pursuant to r 389(1) UCPR had not been provided to the respondents, should the applicant’s most recent steps be disallowed because of that failure?

Summary of factual allegations

7. [7]
   The applicant claims that on 14 July 2004, whilst on the respondents’ premises, (the Australia Fair Shopping Centre), she slipped on a quantity of loose dry sand that was on the floor and fell suffering personal injury as a consequence.

8. [8]
   She alleges that the fall and the personal injuries were occasioned as a consequence of the negligence of the respondents.

Relevant legislation

9. [9]
   Rule 389 of UCPR states:

10. [10]
    The first point that falls for determination is whether no step was taken in the proceeding for two years from the time the last step was taken.

11. [11]
    Counsel for the applicant has helpfully included a chronology in her outline of submissions of relevant dates and events. There is no contest as to the accuracy of that chronology:

12. [12]
    At the time of filing this application, lawyers for the applicant had taken the view that no step had been taken in the proceeding for a period of two years after the step taken on 16 May 2008. The applicant now submits however that examination of the history of this matter reveals that not to be the case. In that regard the applicant relies upon the steps taken on 21 May 2008, 2 September 2008, 8 October 2008, 21 October 2008, 24 October 2008, 2 December 2008, 8 January 2009, 12 January 2009, 5 June 2009, 11 June 2009, 24 June 2009, 19 May 2010, 12 July 2011 and 6 December 2011.

13. [13]
    In Lowndes v Delaney & Anor^[1]Judge Brabazon QC very helpfully summarised a number of decided cases about what actions constitute a step in a proceeding.  In that regard his Honour said at paragraph 10:

14. [14]
    I accept that providing copies of discovered documents is a “step in the proceeding”. Accordingly, the plaintiff has taken a step in the proceeding on each of the occasions that she provided disclosure to the respondents. Whilst the chronology does not particularise the nature of the disclosure on every occasion sufficient particularity has been provided for enough of the dates to allow such a conclusion.

15. [15]
    During oral submissions, counsel for the respondents submitted that even if the court formed the view that further steps had been taken within 2 years of 16 May 2008, there was still a period of two years during which no step was taken commencing on 24 June 2009, with the next step in the proceeding not occurring until 12 July 2011. I note however, that even though not apparent on the face of the chronology, the applicant disclosed a copy of her 2008 taxation records to the respondent on 19 May 2010. Consistent with my findings thus far, that disclosure constitutes a step in the proceeding.

16. [16]
    It follows therefore that I am satisfied that there has not been a period of two years in this proceeding from the time of one step to the next. Rule 389(2) UCPR therefore has no application to this matter.

17. [17]
    I accept however that there has been a period in excess of one year during which no step was taken after which the applicant failed to give a month’s notice to the respondents of her intention to proceed. That period commenced on 19 May 2010. The next step consisted of a disclosure of taxation records for the years 2009 and 2010 on 12 July 2011 and therefore should not have taken place without one month’s notice being given to the respondents. That disclosure was in effect seven weeks out of time. No explanation has been given for that omission or delay.

18. [18]
    I note however that the respondents did not take issue with this omission at the time and have only raised it as a relevant consideration in the course of this application.

19. [19]
    The failure to give a notice of intention to proceed once a year had passed after 19 May 2010 was an irregularity.  Rule 371(1) UCPR provides that a failure to comply with the rules is an irregularity and does not render a proceeding, a document, step taken or order made in a proceeding, a nullity.  Sub-rule (2) states:

20. [20]
    The respondents submit that this irregularity should result in the court declaring that the steps taken after 24 June 2010 be set aside.

The effect of irregularity

21. [21]
    Judge Brabazon QC said in Lowndes v Delaney & Anor:^[2]

“… non compliance with a rule of court does not make the offending step void.  Rather, it is to be regarded as irregular, to be dealt with as the court in its discretion sees fit.”

22. [22]
    In Perez v Transfield (Qld) Proprietary Limited (1979) Qd R 444, the irregularity involved the setting down of an action for trial after more than the permitted delay (then three years) had passed.  No application to set aside that step was made within a reasonable time.  It was held that given that no application had been made to set aside the entry for trial, it stood as a valid step in the proceeding.  With reference to that case Judge Brabazon QC said:^[3]

“Since Perez a consequence is that the irregular proceeding is valid and effective, unless the court orders otherwise.”

23. [23]
    I note that the case of Perez took place prior to the introduction of the UCPR.  Rule 389 does not require a party complaining about non compliance to apply for an order setting aside the irregular process within a reasonable time.  Nevertheless as Judge Brabazon QC said:^[4]

“…delay in applying to set aside a step is always likely to be relevant in the exercise of the court’s discretion whether or not to invalidate the irregular procedure.  See Bates & Ors v Queensland Newspapers P/L & Anor [2001] QSC 083 at paras [9] and [10] (Chesterman J).”

24. [24]
    In this matter the irregularity involved the failure to provide the requisite notice, but the next step that was taken was only seven weeks outside the twelve month time period. It is hardly surprising in that circumstance that the respondent did not take issue with the failure of the applicant to provide a r 389(1) notice. In my view it was an irregularity of little importance and I infer from the fact that the respondents did not bring an application at that time or, at the very least, raise the issue with the applicant, that they held a similar view.

The respondents’ position

25. [25]
    The respondents’ principle submission related to the action the court should take if a conclusion was reached that a period of two years had passed in the proceeding without a step being taken. They submitted that if that were the case the plaintiff’s application for leave to proceed ought to be dismissed.

26. [26]
    In the alternative, the respondents submit that the court should order that any steps taken after 24 June 2010 be set aside due to irregularity.

27. [27]
    In support, the respondents submit that given that this proceeding relates to an incident which is alleged to have occurred in July 2004 they will be prejudiced if the matter proceeds to trial for various reasons which have been articulated in submissions. I do not need to go into those reasons for the purposes of this decision as the only issue with which I am now concerned is the applicant’s failure to give a r 389(1) notice.  It cannot be said that such a failure in the circumstances has caused prejudice to the respondents.  Furthermore, as indicated above, the fact that the respondents did not take issue in July 2011 with the applicant’s failure to provide a r 389(1) notice before taking the next step in the proceeding is a relevant consideration.

28. [28]
    As I have already indicated, in my view, this irregularity is rather minor in nature and should not result in the orders sought by the respondents.

Orders

29. [29]
     

1. It is declared that there has not been a period of two years during which there has been no step taken in this proceeding.

2. It is declared that any steps taken after 24 June 2010 are effectual.

Costs

[30]  In my view the applicant should pay the respondents’ costs of and incidental to this application notwithstanding the applicant’s success in the application.  The application was brought on the basis that a period of two years had passed between steps which was factually incorrect.  Unless there are submissions to the contrary I order that the applicant pay the respondent’s costs of and incidental to this application to be assessed on a standard basis.