Puryer v Favretto[2020] QDC 274

DISTRICT COURT OF QUEENSLAND

Summary

1. [1]
   This is an application by the defendant, Janette Favretto, seeking the following relief

   2. (a) The dismissal of the proceedings by Mr Puryer for want of prosecution;
   3. (b)
      Alternatively, striking out the amended statement of claim and judgment on the claim; or
   4. (c)
      Alternatively, striking out certain paragraphs of the statement of claim and the placing of what is left of the case on the commercial list to proceed to trial expeditiously.  
2. [2]
   I think it is fair to say that the second order was not really pressed in the sense that it was absorbed either by considerations that might inform making the order for dismissal for want of prosecution, or in the alternative for striking out parts of the statement of claim.  Certainly, that is how it seems to me it should be determined, regardless of whether or not that was the position ultimately adopted by Mr Somers for that defendant.
3. [3]
   The first thing I want to make an observation about relates to the approach to the dismissal for want of prosecution.  There is no doubt that this court can dismiss proceedings for failure in the broad sense to pursue the proceedings with sufficient diligence.  Whether that power is exercised in reliance on r. 5(4) Uniform Civil Procedure Rules 1999 (Qld) (UCPR), which allows this court to impose appropriate sanctions if a party does not comply with the rules, including complying with the implied undertaking in r. 5(3) to proceed in an expeditious way (as was contemplated by Justice de Jersey in Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455 at [22]) or exercising the court’s inherent power to dismiss an action for want of prosecution as contemplated in Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 and other places.  It is true, of course, that this court does not have inherent jurisdiction. But in the exercise of its civil jurisdiction, this court has the same powers as the Supreme Court under s. 69 of the District Court Act 1967 (Qld).  
4. [4]
   On either approach, the relevant considerations are analogous to those which apply when a party seeks leave to proceed under r. 389(2).  And they are generally those identified in the well-known judgment of Justice Atkinson in Custom Credit.  At this stage, I simply identify those considerations:

1. [2]When the Court is considering whether or not to dismiss an action for want of prosecution or whether to give leave to proceed under Uniform Civil Procedure Rules ("UCPR") r 389, there are a number of factors that the Court will take into account in determining whether the interests of justice require a case to be dismissed. These include: 

1. how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced; 
2. how long ago the litigation was commenced or causes of action were added; 
3. what prospects the plaintiff has of success in the action; 
4. whether or not there has been disobedience of Court orders or directions; 
5. whether or not the litigation has been characterised by periods of delay; 
6. whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
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;
8. whether the litigation between the parties would be concluded by the striking out of the plaintiff's claim;
9. how far the litigation has progressed;
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 advisers;
11. whether there is a satisfactory explanation for the delay; and
12. whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.

The court's discretion is, however, not fettered by rigid rules but should take into account all of the relevant circumstances of the particular case including the consideration that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them.

5. [5]
   For the reasons which follow, I intend to dismiss the proceedings for want of prosecution, making it unnecessary for me to determine the strike-out application or the other relief sought.  

History of the matter

6. [6]
   The above heading refers to the history of the matter, not just of the proceedings, and that is because the history of the underlying dispute is relevant as well as the history of the proceedings about it.  There is considerable material before the court on the underlying issues in the case, and although some of it is contested, many of the key facts are not.  I will endeavour to stick to uncontested parts of the evidence.  

7. [7]
   The genesis of these proceedings was a relationship which existed between the plaintiff, Mr Puryer, and the defendant, Ms Favretto, and her partner, a Mr Haig.  Mr Puryer, for a number of years prior to 1994, did legal and tax agent work for Ms Favretto and her partner.  He had also acted for her in conveyances.  
8. [8]
   In about 1992, Ms Favretto was diagnosed with a major depressive disorder and was hospitalised.  In around 1994, putting it as neutrally as I can, the subject of how she came to be depressed arose between her and Mr Puryer, probably because he was dealing with her tax agent work, and a discussion occurred in which the issue of her commencing proceedings arose.  That was contemplated, it seems, because she told him that her problems were related to her work environment.
9. [9]
   He swears in an affidavit at CD 25 at paragraph 6 that Ms Favretto instructed him that she suffered anxiety and health conditions as a result of dysfunctional working conditions and pressures at work, resulting in her taking sick leave from employment in 1992, and she was unable to work again as a consequence.  I note at that time, Mr Puryer had apparently been doing tax agent work and conveyancing-type work for the previous decade for Ms Favretto and her partner.
10. [10]
    According to Mr Puryer, starting on the 17th of May 1994, he carried out legal work for Ms Favretto in respect of this potential personal injuries claim.  Ms Favretto swears that Mr Puryer told her she had a strong common law claim and he would look into her claim, and that the issue of costs or fees was never discussed.  Mr Puryer says that that is inaccurate.  He says that he did not say and could not have said she had strong common law claim without knowing all the facts.  He says in his affidavit, CD 25 at paragraph 14: 

The issue of costs was made clear, but I would set out our fee arrangements in writing.

11. [11]
    That was his recollection six years ago as to what was said (CD 25 was sworn in October 2014).  It is hard to imagine his recollection will have improved since then.  
12. [12]
    His memorandum of fees was first produced on the 26th of February 2003, just a little under nine years since his first instructions (as I said, he commenced doing work in respect of the matter in May 1994, and continued to do so consistently, according to the memorandum produced in February 2003, until the last work was done on the 11th of October 2002).
13. [13]
    Although Mr Puryer’s 2014 affidavit does not refer to it, there was in fact, in December 1995, a document which responded to the description of a document which would make clear the issue of costs in writing (as he said he foreshadowed).  I note that by that time, he had been acting for over 18 months.  The letter is a fairly standardlooking solicitor’s retainer agreement, and it does not appear to be in dispute, despite Ms Favretto’s recollection that she signed it and returned it.
14. [14]
    The letter relevantly provided:

Although it is impractical to state exactly how long it is likely to take for this matter to be concluded, we can estimate, given our experience in matters of this nature, that we would not have expected it to conclude within 12 months but it should, based on such experience, conclude within 2 years. 

However, as above, it is extremely difficult to estimate these time limits with any accuracy because the steps that are likely to be required may change as the matter progresses which will depend on a number of variables such as the nature of the reaction of the opposing party, unanticipated Court delays, difficulties you may experience in providing anticipated disbursements as dealt with below, delays in providing and receiving reports from required experts etc. etc. etc. In other words, the number of variables are almost infinite but, as above, we will do our best to keep within the quoted time limits (albeit estimates). 

We also find it impractical to quote a lump sum fee in advance of such matters because, in our experience, it is impossible to tell with any degree of certainty what work is going to be involved. Our costs are calculated on the basis of the item charge Conveyancing Scale as determined from time to time by the Queensland Law Society Inc., a copy of which is enclosed for your information.

Further, we will provide you with up to date advices as to the progress of this matter where relevant to you and, where delays have occurred, we will do our best to explain such delays to you. In this context you should be aware that some delays are beyond our control such as where we are waiting on expert reports or backlogs in Court timetables but, nevertheless, we will do our best to resolve such delays where possible.

15. [15]
    It can be noted that this retainer agreement provides for costs to be calculated on the basis of the conveyancing scale as determined from time to time by the Queensland Law Society.  There is a conveyancing scale attached to it.  It provides specific amounts for formal, ordinary and special correspondence, whatever that means, an amount for formal attendances and telephone calls up to five minutes, other attendances in the amount of $157 per hour, and items for drawing, engrossing and perusing of $6, $2 and $2, a provision for copying by all methods per folio of $1, and a facsimile transmission fee. It is probably a reflection of my ignorance of the way costs used to be dealt with, but this was a litigation matter not a conveyancing matter. However, it looks like the conveyancing scale, despite its name, was used or able to be used for litigation.  Anyway, it is the one that was attached.  
16. [16]
    The matter continued until October 2002.  It is difficult to work out why it took so long.  Even more surprising is that October 2002 was not the time when the proceedings were finally determined at a trial or an appeal.  Rather, what happened in October 2002 on Ms Favretto’s account was that Mr Puryer telephoned Ms Favretto and told her he had obtained a barrister’s advice that her prospects of success were not good, and he advised her not to take the action any further.  She said she followed that advice, and she did not remember receiving a copy of the barrister’s advice at that time.^[1]
17. [17]
    In paragraph 18 of his affidavit at CD 25, Mr Puryer seems to cavil with that evidence, but when you read paragraph 18, it does not seem that he cavils with the proposition that paragraph 13 of the affidavit contains to the extent I have articulated it.  She also says in paragraph 14, she remembers being disappointed that the case had taken him eight years and then to be told she needed to discontinue:

There are long periods of time when I did not hear from Mr Puryer.

18. [18]
    And she goes on to say:

At the time of advising me to discontinue, Mr Puryer never again discussed his costs and never said that if I agreed to discontinue, I would have to pay his costs.

19. [19]
    I refer again to paragraph 18 at CD 25 where Mr Puryer asserts that the correspondence in his affidavit makes those comments incorrect, and he refers to some correspondence sent in February and May 2001 and, strangely, June 2014.
20. [20]
    It is in dispute whether anything was said about that, that is, about any liability to pay costs, or whether Ms Favretto ought to have known, when she discontinued the case, that she would have to pay costs.  In the context of her counterclaim, as she eventually develops it, that that could be a relevant consideration.  It is one of the many matters in respect of which one might think there is little prospect at all of any recollection existing of the detail of these events, 18 years after they occurred.
21. [21]
    Also what seems to be uncontentious, apart from the advice to discontinue, is that the proceedings were discontinued in October 2002.  In the context of this application, it is worth noting at this point that by October 2002, it had already been eight years since the initial events of instruction, and that those matters are in dispute on the pleadings in this proceeding.  
22. [22]
    The other matter to mention that happened prior to the discontinuance in October 2002 was the sending of a further retainer letter.  This was sent on the 29th of August 2000 (the August 2000 letter).  It opens relevantly with this statement:

We confirm we will continue to accept instructions to act for you in relation to your personal injuries claim.

23. [23]
    Later in the letter, Mr Puryer states this (at paragraph 7):

7. Although it is impractical to state exactly how long it is likely to take for this matter to be concluded, we can estimate, given our experience in matters of this nature, that we would not have expected it to conclude within 12 months, but it should, based on past experience, conclude within three years.  However, these time measurements are extremely difficult to make in this case, because the constant lack of response and cooperation from you.

24. [24]
    Next, paragraph 8:

8. In this context, we know you have a lot of difficulties.  But: 

1. (a)
   this is the reason you are suing these particular defendants;  
2. (b)
   the sooner this matter is over, the quicker you will receive whatever compensation we can get for you, provided you win this case;  
3. (c)
   we spend a lot of time and energy getting responsive information from you.  This time would be better spent fighting the defendants for you;  and
4. (d)
   the court rules impose timetables and other requirements which cannot be ignored and do not take into account your illness.

[my emphasis]

25. [25]
    It then goes on to speak about the imposition of GST.  It says at paragraph 13 that:

The firm has reviewed our pricing structure in accordance with certain advice from the ACCC and have determined a 10 per cent increase in costs will apply from the 1st of July 2000.  As a result, a new rate of charges will apply.

26. [26]
    The next paragraph under the heading Cost and Outlays provides as follows: 

14. We also find it impracticable to quote a lump sum fee in advance in such matters because, in our experience, it is impossible to tell with any degree of certainty what work is going to be involved. Our costs are calculated as from the commencement of our instructions on the basis of the scale set forth below this paragraph 9 [sic] and which scale is similar to and based on the item charge Conveyancing Scale as determined from time to time by the Queensland Law Society Inc. The scale of costs set forth below will apply as from the time that you first engaged us. We reserve the right to render and recover progress accounts from time to time. Should you wish us to render accounts more frequently, please let us know. These accounts are payable within 30 days of delivery. We also reserve the right to modify this scale from time to time. Any substitute scale will take effect thirty (3) days from the date of notification by mail. 

Our new rates are as follows:

Correspondence 

Formal letter       $13.20 Ordinary letter       $19.80

 Special letter              $49.50

or such fee as is reasonable having regard to the length of the letter, the questions involved and other appropriate items and charges in this scale. Generally speaking a special letter will be charged on the basis of the time involved in preparing that letter. Accordingly, if a letter takes

15 minutes to draft or dictate, then it will be charged at $63.25 (ie. 15/60 x 253.00)

The above item charges do not include any amount for care, consideration, skill and responsibility and a charge should be included for such matters in appropriate circumstances. Generally speaking, we do not charge for research. Accordingly, a charge of twenty percent (20%) of the professional costs reflects the charge for care and consideration. 

15. We should also draw to your attention that our rates of charge are different to that contained in the scale of costs which might otherwise apply to a matter of this nature. For your information, we enclose a copy of the relevant Supreme Court scale which would apply (apart from this agreement) to the civil claims. We should point out that whether or not the matter will be in the Supreme Court will depend on the percentage of your permanent disability. At this stage it is too early to accurately determine this. 

27. [27]
    I note that the text of paragraph 14 refers to the costs being calculated from the commencement of the instructions on the basis of the scale set forth below this in paragraph 9.  That is plainly a typographical error and is intending to refer to paragraph 14.  What that seems to communicate, and what Mr Puryer actually did subsequently, was that the fee increases were going to apply nunc pro tunc, as it were, back to the commencement of the matter in May 1994.  At that stage, compared to over six years before, the rates are different.  I note that the solicitor rate is $253 an hour, or $4.21 per minute, as compared to the rate in the 1995 table of $157.  Surely not.  Assuming the 2000 figures to be GST inclusive, that would make the solicitor rate $225 as opposed to the previous rate, if this was indeed part of any retainer agreement, of $157, which is about a 30 per cent increase or more, nunc pro tunc (i.e. the new rates applying as if they applied from the beginning of the retainer in 1994).

28. [28]
    It is not clear what communications there were between October 2002 and February 2003, some four or five months later, although I note that Mr Puryer was suspended from practice from 22 October 2002 and transferred his practice and the majority of his files to another solicitor.  At least on the material before me, it appears that Ms Favretto did not hear from Mr Puryer about any fees owing until February 2003.  And of course, if that is a matter in dispute, that is another matter which turns on recollection of events long past.  
29. [29]
    The memorandum of fees, if I can call it that, was provided, it seems, on the 26th of February 2003 (the 2003 Memorandum).  The document appears in Ms Favretto’s affidavit, I think, from page 217.  It has 707 items.  Mr Somers (for Ms Favretto) gave some examples of the way figures were calculated to indicate they were calculated on the basis of the figures contained the August 2000 letter, and the specific examples he gave demonstrated that to be so.  I did not understand Mr Puryer to dispute that.  
30. [30]
    The bill itself has some oddities.  It charges bulk photocopying at $1 a page, or more than $1 a page.  The fee agreement contains an amount of $1.40 next to this description:  

Copying by all methods per page.

31. [31]
    It is said, to jump ahead, in the counterclaim that that rate, or actually a lesser rate of $1 per page, was gross over-charging.  I must say it seems so to me.  If you look at item 523 in the bill, a brief for Mr Sayers of 1131 pages has been billed for copying at $1583.  That was for work done 20 years ago.  In the end, despite my recollection that the charging of $1 a page or anything like it for photocopying was long gone by the year 2000, and I know from my own experience that barristers did not charge a cent for it in the year 2000, I just do not have the evidence to conclude that it was gross overcharging.  It just sounds like a reasonable argument to me at this stage.
32. [32]
    There is also an item, 367, of $20,625, a very large item, for “perusing box of items” in July 2000, 7500 folios.  Once again, I do not really have the evidence to conclude that that is overcharging; it just seems an extraordinarily large amount in a personal injuries claim of this kind.  
33. [33]
    Ultimately, the fee came to $48,000-odd with $10,000-odd in care and consideration to come to some $58,000.  I do not think it is in dispute that Ms Favretto received the 2003 memorandum.  It is marked with the comment that:

The solicitors reserve the right to withdraw the account and submit a bill of costs in taxable form for a different amount.

34. [34]
    It does not look like that reserved right was ever made use of, even to today.  Ms Favretto says that after receiving the 2003 memorandum (which she does not seem to dispute she received, although she said she did not remember reading or receiving it) she received no communications from Mr Puryer until August 2008, a period of five and a half years.   
35. [35]
    Just before I leave that, I make this observation:  it is entirely possible that what Mr Puryer says or recites in his letters about being difficult to get instructions from Ms Favretto has some truth to it.  On his evidence, she had mental health issues and lived a very disordered life in a hoarding-style house.  However, it is difficult to see how the blame for delaying in prosecuting civil proceedings for eight years such that they only reached (after 8 years) the stage of barrister’s advice on prospects and pleadings, can be laid entirely at the door of a client, especially one in respect of whom the proceedings are for personal injuries for mental health difficulties.  Whatever about that, those proceedings were conducted at a glacial pace.

36. [36]
    There is also the oddity that it appears that no bill was rendered during that eight years, or even one prepared until some months after the end of the case.  Even if Ms Favretto had a general idea that fees were being incurred, there does not appear to be any evidence she was told how much.  Be that as it may, she swears that for five years from February 2003 to August 2008, she received no communications from Mr Puryer.

37. [37]
    He swears at paragraph 25 of CD 25 that on each of January 2005 and October 2006, he wrote to her and sought to have her address the outstanding fees.  He swore he telephoned her many times, in excess of 20 times, between February 2003 and August 2008, but her phone was not answered.  He swore that during the time of the retainer, Ms Favretto had developed a code for acceptable callers so she could screen calls without actually taking the call:

I assume that the applicant did, at times, choose not to answer my calls.

38. [38]
    Even accepting Mr Puryer’s evidence as to attempts to chase Ms Favretto, the overwhelming inference was that Ms Favretto could not or would not pay his bill.  Mr Puryer could have taken steps at any time in that five and a half year period to sue to recover his costs, and he did not.  
39. [39]
    The next stage of this long, drawn out process was Mr Puryer’s steps to obtain judgment.  He commenced proceedings in this court on 6 October 2008.  Having been a Judge in this court for over three years in a role where it has been my job to clean up some ancient files, this is, I think, the oldest file that I have seen.  The statement of claim, as I said, was filed on 6 October 2008.  Its content is important.  The claim articulates the relief sought as this: 

The plaintiff claims against the defendants [sic] the sum of $58,083.71, being moneys owing for work and labour performed and alternatively, pursuant to a breach of contract and alternatively, for a quantum meruit together with interest, fees and charges.

40. [40]
    The statement of claim itself was brief:

    1. The Plaintiff was at all material times a solicitor practising under the name of Puryer & Co. 
    2. On our about 17^th May, 1994 the Defendant retained the Plaintiff to act as her Solicitor and agent on her behalf.
    3. Between 17^th May, 1994 and 11^th October 2002 the Plaintiff performed may services and undertook much work on her behalf

Particulars of Services and work as set forth in paragraph 9 below 

4. On or about 26^th February 2003 and again on or about 21^st August, 2008, the Plaintiff served or caused to be served upon the Defendant an itemised memorandum of costs and outlays dated 26^th February 2003 from the Plaintiff to the Defendant, showing a total of $58,083.71.
5. Each of the services and attendances described in the itemised memorandum of fees was provided by the Plaintiff to the Defendant in accordance with the retainer. 
6. Therefore, the balance claimed is $58,083.71. This amount is owing and is payable for services, attendances, and advice requested by the Defendant during the period of 17^th May, 1994 until 11^th October 2002 and provided by the Plaintiff, the particulars of which have previously been provided to the Defendant. 
7. Further or in the alternative, the Plaintiff claims the sum of $58,083.71 for breach of contract or retainer as a result of the Defendant’s refusal or neglect to pay the said sum of $58,083.71. 
8. The plaintiff claims the balance of $58,083.71. 
9. Further, or in the alternative, the Plaintiff says that, for and at the request of the Defendant, contained in and to be inferred from the said retainer he did much work in acting as agent and solicitor for and on behalf of the said Defendant, and he claims the balance of $58,083.71 as a reasonable remuneration for such work.    

41. [41]
    It can be seen that this statement of claim pleads that on or about the 17th of May 1994, and expressly pleads, and that from that point until October 2002, the plaintiff performed many services for Ms Favretto.  It pleads the memorandum of fees, and alleges that each of the attendances and items in the memorandum of fees were provided:

… in accordance with the retainer.

42. [42]
    There is no retainer that could be referred to but the retainer alleged in the pleading of 17 May 1994.  It goes on to plead the failure to pay the sum claimed as a breach of contract or breach of retainer, although what the difference is in this pleading, I do not know.  It seems to plead also a quantum meruit claim for the same amount as reasonable remuneration for the work, and it particularised the work and the costs as that set out in the memorandum.  As I have said, it seems to be clear, and it does not seem to be disputed, that the 2003 memorandum was calculated on the basis of the rates in the August 2000 written retainer.  It is to be noted that neither the terms of the 1995 retainer nor the fact of the August 2000 retainer are pleaded, although the retainer that was pleaded on 17 May 1994 must refer, on the evidence before me, to the oral retainer described, though in slightly different terms, by both parties. 
43. [43]
    One of the challenges with this case, if the subsequent specific pleading of the 1995 and 2000 retainer agreements are statute barred, is that whether and to what extent any agreement as to costs that can be extracted from the retainer pleaded in the original statement of claim.  Mr Puryer, when put on the spot in submissions, submitted that it could be inferred Ms Favretto was aware that she would have to pay costs, which is probably reasonable to infer, and have to pay them win or lose because of their previous dealings with each other.  
44. [44]
    There are some difficulties about that as a proposition, given that this was the first time she had done any litigation with Mr Puryer and, to his knowledge, any litigation at all.  Another difficulty is the uncontested evidence of the mental health problems she was having at the time.  A further difficulty is that that proposition is reliant on the course of dealings between them for the decade before 1994, which might mean that issues of fact which are disputed arise in this regard going back almost to when Australia won the Americas Cup for the first time and I was still at school.  This demonstrates, perhaps inappropriately light-heartedly, just how long ago we are talking about here. 
45. [45]
    In any event, that is the case as originally pleaded.  It is to be noted that Mr Puryer submitted, and I think rightly, that if you retained a solicitor without a written retainer to do litigation, the solicitor was entitled to fees calculated in accordance with the relevant scale, subject to the oversight of the court.  If that was true, it does not appear that that is the way the memorandum of fees was determined.  It was determined on the amount specified in the August 2000 retainer letter which was higher than the scale and was imposed in respect of a large number of the charges up to six years after the work was done.

46. [46]
    Jumping ahead to just about the last point made in this long argument, Mr Hartwell, a costs assessor, is now close to producing an expert report on the quantum of legal costs calculated on the basis of, inter alia, the Supreme Court scale, presumably the scale applying from time to time when the work was done.  That will comprise an amount which is calculated on a basis which has never been pleaded in this case since 2008, and to the extent it is to be a figure which might inform a quantum meruit claim, it would be directly inconsistent with the figure that has been claimed in this case since 2008, or at least the basis for it.
47. [47]
    Anyway, that was the original pleading.  It was served and default judgment was obtained in December 2008.  Ms Favretto swears that, at least back in 2013 which I observe is more than seven years ago even now, she remembered receiving the claim and statement of claim and said she started to panic.  She went to see a solicitor, Mr Black of Turner Freeman, who as I understand, is a personal injuries lawyer.  Mr Black sent an email to an email address associated with Mr Puryer, telling Mr Puryer that Mr Black had received instructions from Ms Favretto, that he had a copy of the proceedings, he asked him not to take any steps without providing reasonable notice, noted that he tried to call Mr Puryer on the phone number on the pleading, and that he had been unable to get in contact with him.
48. [48]
    Mr Black’s letter raised a number of matters including whether there was a client agreement and, in relation to an adverse costs order against Ms Favretto, he wanted to know how that had come about.  He expressed concern, not surprisingly, that the case ran for eight years without a result, and that the action by Mr Puryer appeared to be statute-barred.  Mr Black does not say where he got the email address to which he sent his email from, but it is on the 2003 memorandum, on the covering letter and on the letter sent to Ms Favretto on the 21st of August enclosing another copy of the memorandum of fees.  
49. [49]
    Ms Favretto was served, according to Mr Puryer’s affidavit – CD 5 – on the 7th of November 2008.  She went to see Mr Black on the 6th of January 2009:  given the time of year, not a particularly long delay.  I assume, as I just said, that Mr Black obtained the email address from the letterhead of the letter sent to Ms Favretto at the end of August the year before.  And Mr Black rang the number and it had been disconnected.  He sent the email to an address on a letter that had been provided to his client just a few months before from someone who was a solicitor at the time.  
50. [50]
    Mr Puryer says he did not receive that email.  His affidavit in paragraph 32 of CD 25 says:

Since entering judgment on the 19th of December 2008, I have never, prior to the communication from … Bennett & Philp in 2013 … received any communication, written or oral, from a legal representative on behalf of the applicants.  I certainly never received or saw an email from Mr Greg Black or Turner Freeman or any other practitioner.

51. [51]
    Mr Puryer goes on to say that his postal address appears prominently.  He takes the view that it is Mr Black’s fault that he did not get in contact with him.  I think that an extravagant position to take.  By this stage, this proceeding had at least entered this millennium.  And by January 2009, the idea that a fellow practitioner was not acting properly in emailing an email address contained on a solicitor’s letterhead provided just a few months before, is a proposition I do not find very credible.  I am willing to accept that a letter did not come to his attention.
52. [52]
    In any event, the pleading was served on 7 November and default judgment was requested on the 15th of December, not much outside, if at all, the 28-day period.  Maybe it is somewhere in the evidence, but it does not appear Mr Puryer contacted Ms Favretto before he entered default judgment; although, perhaps her lack of cooperation for the preceding five years made that an understandable omission.
53. [53]
    What does not appear to be in dispute is that, although default judgment was obtained in December 2008, no step was taken on it until an enforcement warrant was served on the plaintiff on or about the 13th of June 2013.  As I said, that is four and a-half years later.  
54. [54]
    Ms Favretto swears that she was shocked to receive it and that she did not know judgment had been entered.  I understand that not to be in dispute, or at least she did not know it had been entered.  It would probably be odd to dispute the proposition she was shocked to receive it after all the time which had passed, but anyway.  There, therefore, had been a delay of eight years from the commencement of the matter until a bill was finally produced, a delay of five and a-half years between a bill being produced and proceedings being commenced, and a delay of four and a-half years between default judgment being entered and action being taken on the judgment. 

Responsibility for delay

55. [55]
    It is probably convenient to deal with the characterisation of the responsibility for the delay in these periods and the explanations given.  Ms Favretto’s representatives ascribe all of the delay in those three periods to Mr Puryer.  
56. [56]
    The first period is eight years before a bill was produced, and indeed, eight years to get to the stage of dropping the personal injuries case because of advices to prospects.  Being fair to Mr Puryer, as I said, there is probably not much doubt that Ms Favretto was not a particularly active or responsive client.  But, of course, experienced solicitors know what to do with clients like that.  You can insist on receiving instructions and, if you do not, you can terminate your retainer.  
57. [57]
    In any event, I am not satisfied that the whole eight years can be explained by her reluctance and lack of cooperation as a client though.  It is an extraordinary period of delay.  My reaction was the same as Mr Black’s; to achieve so little at such great expense.  What is clear is that eight years had passed before a bill was issued.  If bills had been issued on a regular basis, nearly all of them would already have been statute barred when the proceedings were commenced – if they were billed monthly or even quarterly.  The effect of not producing bills until 2003 had the effect of extending inordinately, I might say, the limitation period.  Well, not extending the limitation, but of causing the limitation period not to accrue, in some respects, until over eight years after the work was done.
58. [58]
    As to the second period of delay – that is, the delay in commencing the proceedings – Mr Puryer relies on a series of legal disputes which affected him between 2001 and 2008.  They comprise family law proceedings which ran from 2001 to 2007, and judicial review proceedings that ran from 2006 to October 2008.  He swears that these proceedings were draining and occupied much of his time in the period.  He relies on those events as explaining the delay in commencing the proceedings.  I do not accept that they are adequate explanations or that they truly explain the delay.
59. [59]
    As Mr Somers pointed out, despite the family law proceedings, Mr Puryer managed to produce the very long and detailed memorandum of fees.  All that was required to get the proceedings underway was to do the short pleading, which is set out above, and cause it to be served.  I reject as incredible, the suggestion that having been able to go to the trouble of producing the detailed memorandum of fees, the two sets of proceedings were the reason that he did not commence the proceedings, except to this extent:  he just did not make it a priority to do it.

60. [60]
    Mr Puryer also suggested that the delay between the issue of the bill and the commencement of the proceedings was Ms Favretto’s fault because she did not take the bill to taxation.  He made that submission twice.  I reject it as a circumstance that makes the five and a-half year of delay as her fault.  I explained the evidence demonstrated that she was avoiding his calls.  Mr Puryer was a solicitor.  If a debtor is avoiding you, you sue them.  The idea that somehow it was her job to apply for taxation was ridiculous.  That delay was his choice and nothing else.
61. [61]
    The delay between getting the judgment and acting on the judgment was also sought to be explained in a way that made it excusable.  He relied, first of all, on being distracted by professional disciplinary proceedings from October 2009 until November 2012, and various rental tenancy disputes he had from May 2008 until October 2018.  Once again, I reject the proposition that those kinds of proceedings, though difficult, would have, in fact, prevented him from pursuing the judgment if he had chosen to.  In my view, it was not a complex matter to get an enforcement warrant, if he wanted to do so.  It was again just not something he chose to prioritise.
62. [62]
    Mr Puryer also submitted that he had a judgment, and he had no obligation to do anything with it if he did not want to.  That is true, but then it is his choice, and the delay lies at his door.  He also submitted that he that he thought, with the passage of time, Ms Favretto would find it easier to pay the judgment (and since this is not in the material, it would appear to have been something raised for the first time from the bar table). As I said, that was not in the evidence.  I can’t recall if Mr Somers objected to that particular assertion coming for the first time from the bar table, but, in any event, he addressed on it, correctly, in my view, in this way: all it demonstrated is that Mr Puryer decided that it would suit the prospects of his recovery to just hold off; a matter of judgment for him, made in his own interests.  If, in fact, it is truly the explanation, it is certainly not an excuse for the delay or one that makes it something that could be laid at Ms Favretto’s door.  I note, also, that there is no suggestion that these reasons were ever raised or discussed with the other side; they were kept to himself. 
63. [63]
    He also particularly relied, from the bar table (it was not in evidence), of the five and a half year on the longstanding relationship he had with Ms Favretto, and that his preference was that the payment be made voluntarily.  It is very difficult to accept the reliability of that from the bar table, in light of what he swore many years ago, that he knew she was avoiding him by not answering his calls.  I do not accept that that was, in fact, a factor that was operating in his mind.  But if it was, again, it was a choice he made and not something that he ever raised with her.
64. [64]
    Finally, we are at June 2013, when the enforcement warrant was served.  Following that, Mr Somers’ instructing solicitors, Bennett & Philp, became involved in the matter.  For a period of 18 months, the case was absorbed with whether the default judgment would be set aside or not.  That period, which is the fourth period of delay, is 18 months, from June 2013 to its final resolution in December 2014.  At that time, the default judgment was set aside by consent.  The delay in this period does not seem to me to be attributed just to Mr Puryer, nor, indeed, just to Ms Favretto.  The process that led to the consent setting aside of the default judgment was a slow one.  There was a quick action from Bennett & Philp to obtain a stay until further order in June 2013, and then a fairly slow process that ultimately resulted in the December 2014 consent order, setting aside the default judgment.

65. [65]
    While it is true, I think, that Bennett & Philp, or at least their client, did not act promptly to bring that to a conclusion, equally, it was up to Mr Puryer, if he had wanted to, to have the stay discharged and get on with it.  Any stay of that kind is given, at least on an implied undertaking, to promptly proceed to the setting aside of the proceedings that are to be challenged and are the subject of the stay.  I do not accept the proposition that Mr Puryer can say that delay in that period was entirely not his responsibility, especially as there was a delay of about a year between the stay, the application set aside and the default judgment really getting going.
66. [66]
    Once the default judgment was set aside, the defendant brought an application to strike out parts of the statement of claim.  There was a four-month delay between the setting aside and that application being brought over, including the Christmas period, but that is de minimis in the context of this case.  
67. [67]
    Between April 2015 and September 2015, litigation went on about the adequacy of the pleading.  It is not difficult to imagine that a practitioner would take the view that the original statement of claim was defective.  That view was taken and, in April 2015, an application to strikeout was foreshadowed.  That did not appear to go to a hearing, but rather, the plaintiff appears to have accepted the strength of some of the submissions made.  And whether he did, or he did not, on the 6th of May 2015, he filed an amended statement of claim.  This is 21 years after the retainer began and a little under 13 years since it finished.  It is also about 12 years after the bill was delivered.
68. [68]
    Even allowing for a reasonable time for the bill to be paid, and if not paid, to become due at, say, three months or even six months, or even 12 months, the introduction of new causes of action related to sustaining the claim for $58,000 were long barred by the time the May 2015 statement of claim was filed.  That is relevant because the May 2015 amended statement of claim, for the first time, alleged (a) the written retainer on 7 December 1995, which I have already covered, and (b) the written retainer dated 29 August 2000, which I have already covered.
69. [69]
    A further strikeout application was brought by the defendant in June 2015, reasonably promptly.  Oddly, the primary focus of that strikeout did not appear to be to seek summary dismissal on the basis of limitation periods having expired.  The matter came before Judge McGill for hearing on the 17th of June 2015.  His Honour, to be fair, was not very impressed with the points pressed for strikeout of the May 2015 pleading.  It might be that limitations points were raised.  It is hard to tell.  But his Honour said this anyway:

HIS HONOUR: But I think that there is no deficiency in the pleading which is such that I would strike it out without leave to amend. It does seem to me though that it is very likely that you are going to run into problems with the Limitation Act. That is not a problem for our pleading because that is a matter for the defendant to plead, but, yes, I’m a little puzzled about this. It does rather look to me as though the whole thing is a bit late.  

RESPONDENT: It may well – it – that issue, I think, the - - - HIS HONOUR: Yes.

RESPONDENT: - - - defendant’s – seems to be well aware of, your Honour. 

HIS HONOUR: Yes, anyway, I mean - - - 

RESPONDENT: There has been this - - - 

HIS HONOUR: That – that’s a matter for the defendant to plead, but it just does – I must say, my initial reaction is that – I mean maybe the effect of that section I just referred to from the Queensland Law Society Act was that there was no cause of action till you delivered the bill. And if that’s the case, then maybe time doesn’t run until the bill’s delivered.^[2]

70. [70]
    The effect of that is his Honour seemed to me to be commenting, first, that it was very likely there were going to be limitation problems; but secondly, it is a matter for the defendant to plead.  And his Honour did not want to chance his arm, I infer, because he was not quite sure when the time began to run, and so on.  In any event, his Honour granted leave to file an amended statement of claim within 21 days.
71. [71]
    Given the delays up to that point, it is interesting to note that 21 days was the 8th of July, and the amended pleading was filed two months after that date, on the 2nd of September 2015. But, again, it is de minimis in this case.  The further amended statement of claim adds particulars to the 1995 retainer and 2000 retainer allegations.  It then took eight months for the defendant to file an amended defence and counterclaim, and although the plaintiff did not appear to be pursuing the defendants about it, it may well be that he was.  That period of eight months cannot be laid at his door. 
72. [72]
    Which brings us to the further amended defence and counterclaim which was filed on the 5th of May 2016.
73. [73]
    The next step was for the filing of a reply and answer.  However, nothing happened for one year from the filing of the amended defence and counterclaim, until May 2017, when the plaintiff requested particulars of the amended defence.  I do not recall a specific explanation being advanced for that particular period of delay, although there was still the tenancy dispute distractions that had been referred to by Mr Puryer.  The request for particulars is not a particularly complex document and adopts the approach just asking for the usual particulars of a number of the allegations in the pleading.  Looking at the document and the amended defence and counterclaim, it is hard to see why it would have taken more than an hour or two to prepare the request.  I do not accept that the residential tenancy disputes are, in fact, explanations for that delay, and if it is, I do not accept it is an excuse for it.
74. [74]
    The defendants did not let any grass grow under their feet, and they provided the particulars within 14 days, which got us to May 2017.  There was some action around May 2017 on other fronts:  the provision of a list of documents, a request for the   defendants to agree to a joint report, and a request for the plaintiffs to agree to witness statements.  The defendant’s solicitors responded promptly on the joint report, saying that they were not interested in participating in that.  They did not respond on the witness statement’s point, as far as Mr Somers was able to identify in the material that has been listed, in any event.  But it should not have taken Mr Puryer very long to realise that that silence indicated a rejection.

75. [75]
    In any event, there was then another two years until the reply and answer was provided.  Mr Puryer submitted that that period could be explained by his need for certain documents, which he could not find.  In the end, doing the best I could, that just did not seem credible, for a reason which Mr Somers tried to explain to me, but I just could not pick up at the time.  But Mr Puryer said that he must have had the missing documents that were found in a locked filing cabinet by the 10th of May 2017, because that is when he provided his list of documents.^[3]  Then, he had the documents for two years before the reply and answer was produced, which made his assertion to me, that he needed those documents to produce the reply and answer, wrong.

76. [76]
    Despite the matters put up by Mr Puryer, there is no credible explanation or excuse for that two-year delay to produce a reply and answer.  That particular delay, by itself, in the context of this case, in my respectful view, amounted to a very serious breach of the obligation of the implied undertaking to proceed in an expeditious way, quite apart from everything else that marks this case.
77. [77]
    I put to Mr Puryer, in the course of argument, that the timing of the service of the reply and answer was done to avoid the passing of the two-year period under r. 389(2).  I directed his attention to the fact that Mr Favretto’s solicitors had filed and served their further and better particulars on the 25th of May 2017, which would have been a step in the proceedings, and that the reply and answer came in on the 21st of May 2019, coincidentally, four days before the expiry of the two-year period.  Mr Puryer then referred back to the finding of the cabinet and why that was necessary to do the reply and so on.  And as I have said, just on the story as told to me from the bar table, that cannot be the explanation.  In my respectful view, this reply and answer was filed to avoid the expiry of the two-year period, and that, and only that, is the reason why he finally got on with the relatively simple task, I should say, looking at that pleading, of causing pleadings to close, which reinforces my conclusion about that particular delay alone, being one that involved a serious breach of the implied undertaking. That brings us to May 2019.  
78. [78]
    Sadly, the delivery of the reply and answer and the near-death experience of just avoiding the two-year period under r. 389 (2) didn’t cause Mr Puryer promptly to pursue the proceedings after that.  He took no further step until he delivered a notice to admit facts and documents.  He was served with a response from the defendant putting many of those matters in issue.  Mr Puryer submits that there was some sort of abuse of process in doing so.  I would take a lot of persuading that that was so, and there was no real attempt to persuade me it was so.  The consequence of not complying with a notice to admit except in circumstances where it is self-evidently an abuse of process are cost consequences at the trial.
79. [79]
    For those reasons, with a couple of exceptions in which there is joint responsibility for the delay and one period where the defendant probably should have got on it with their amended defence in a few months, the responsibility for this delay lies at Mr Puryer’s feet.  
80. [80]
    The other matter to note about this delay is that it is, in total, extreme.  

Other factors

82. [81] Mr Somers submitted that the other considerations identified by Justice Atkinson are also engaged by the extreme delay:

1. (a)
   It is relevant to the matter in paragraph [2] item 1 from her Honours list of factors.  I have already said enough about how long ago these events occurred; they started when Mr Keating was still the prime minister.  As to the delay before litigation, that was a delay of many years.  I have already explained why there is no valid explanation or excuse for that delay.  The litigation was then commenced in 2008, which is now, itself, 12 years ago.

2. (b)
   As to item 3, dealing with prospects the plaintiff has of success in the action, even having done the work I have done today, it is difficult to see that the plaintiff has no prospects of success in the action or very poor prospects, but there are two very large question marks over the prospects. The first is that – as I explained in the course of my chronology – the amounts charged and the context in which they were charged gives me real cause for concern as to whether they would ultimately be able to be proved as recoverable.  

The limitations defences 

82. [82]
    This item in her Honour’s list actually raises another important area, which I have not dealt with yet.
83. [83]
    There are three important areas of real trouble for Mr Puryer in succeeding in this litigation.  The first is the limitation of actions issues raised by Mr Somers.  I have already explained, in the course of my reasons to date, that the 1995 retainer agreement and the 2000 retainer agreement were added into the pleading many years after the limitation period would have expired for causes of action based on those to recover the amounts in the bill delivered in 2003.  As Judge McGill observed, there did seem to be a problem, Houston.
84. [84]
    Mr Somers, I say, respectfully, did what a lot of advocates do not do when they are trying to persuade you of a limitations point, and engaged in the detail.  He deals with this issue in paragraphs 36 to 47 of his outline.  To try and summarise his points, he submits that the 1995 and 2000 retainers were quite different causes of action, because the pleading that was filed within time pleaded an unspecified retainer in 1994, without a basis pleaded for recovering costs.  That was obviously, on the face of the pleading, not a written retainer.  Certainly, there was no suggestion in the pleading that it was.
85. [85]
    The 1995 document creates a contract, which provides an entitlement to payment on a certain basis.  That basis was not raised in the pleading, because as I have explained, it was obvious that the figures in the pleading were not calculated on that basis.  The 2000 retainer, again, was a separate contract.  Although the amounts claimed in the memorandum incorporated by reference into the pleading were calculated by reference to it, no facts were pleaded that would give anyone a reason to suspect, from that pleading, that any such contractual basis to recover existed.  
86. [86]
    Mr Somers tried to make me decide that I could dismiss those parts of the proceedings on a General Steel^[4] basis.  It seems to me that it might not be quite that obvious that these causes of action could not be added to the pleading under r. 376(4), although, it would be a hard argument.  But I do not have to come to that conclusion.
87. [87]
    What I can conclude is that there is a very strong argument indeed, that claims on the 1995 and 2000 retainer contracts are statute barred;  a very strong argument indeed.  The difficulty that that creates is that one is then left with a pleading, if those causes of action are statute barred, which advances a claim on what the evidence shows would have been an oral retainer, and in respect of which, the only facts that could sustain the amount claimed is a claim on the scale, in circumstances where the pleading does not claim on the scale.  

88. [88]
    So thus, the second problem is, it is extraordinarily difficult to see how the amount claimed would be able to be sustained.

The counterclaim points 

89. [89]
    The third difficulty that affects the prospects of success is the defence and counterclaim itself.  There are matters raised, particularly in the counterclaim, which seem to have significant weight.  There are basically allegations that a claim for fees in respect of this retainer will not be possible to enforce the claim against the defendant even if made out, given the way that it arose, the disadvantageous position the defendant was in, and the advice that was given, (and which Mr Puryer disputes was given), about the prospects of success.
90. [90]
    I cannot say, given the denial of some of the key elements of Ms Favretto’s story in that regard, that there is poor prospects of success on the claim because of the counterclaim.  But it certainly gives rise, even on, frankly, Mr Puryer’s evidence only, to real questions about whether a claim for some or all of these fees could ultimately be made good against a person in the position that Ms Favretto was in at the time all this occurred.  
91. [91]
    For all those reasons, I think that the claim is not a strong one at best and is very weak to the extent it relies on the 1995 and 2000 retainers.

Further considerations from Custom Credit

92. [92]
    Now, going back to her Honour’s list.  Paragraph 2(4) refers to disobedience to court orders or directions.  Mr Puryer, rightly points out, that he has not been in default of court orders.  He is not in default of a court order at the moment anyway, although he was in default for a couple of months in respect of the order that he file a further pleading.  
93. [93]
    However, as I have said, given the character of the delay, on a number of occasions he has been in breach with the implied undertaking in r. 5(3).
94. [94]
    Her Honour then points to whether there has been litigation characterised by periods of delay:  as to this the case here is yes, a number of periods, and each long.  
95. [95]
    Her Honour then turns attention to whether the delay is attributable to the plaintiff, the defendant, or both.  It should be remembered that just because delay is not attributable to a particular party does not mean that party is immune from dismissal for want of prosecution, and there were aspects of the delay in Ure v Robertson [2016] QSC 210 referred to in the trial division judgment referred to by Mr Somers where that was so.  However, for the reasons that I have exhaustively reviewed, almost all of the delay is not attributable to the defendant, and almost all of it is attributable, in my view, to the plaintiff.  And worse, I find a lot of the explanations advanced for the delay by Mr Puryer to incredible and wrong.
96. [96]
    Impecuniosity of the plaintiff is the matter in sub (7) of the Custom Credit list. I note that Mr Puryer is acting for himself.  There does not seem to be any issue on that front.  The difficulty that he advanced was his inability to conduct all of his other litigation and prioritise this litigation.  And I have already dealt with why I find that an unacceptable explanation, much less an excuse.  
97. [97]
    As to the next point, point 8, the litigation between the parties would be concluded if I strike out the claim.  Mr Somers’s counterclaim does not seek any relief, except contingent relief, which would be required only if Mr Puryer succeeded in his claim.  The prayer for relief in the counterclaim demonstrates it is entirely derivative of the claim of the plaintiff.  And, in any event, as Ure also demonstrates, if a party seeking to dismiss for want of prosecution abandons any positive relief it seeks, then, that does not stand in the way of making the order.  But that is unnecessary in this case.
98. [98]
    As to how far the litigation has progressed (her Honour’s point 9), the pleadings have, in the scheme of this case, only just closed.  Mr Puryer appoints to the fact that he has got a report from Mr Hartwell that could be delivered, which assesses the costs on the grounds of the scale from time-to-time and the various retainers alleged.  The difficulty with taking this into account as a significant factor favouring not dismissing for want of prosecution, given all the other factors, is that the report is still not available, and Mr Hartwell offered to hurry through and have it available for today, and that offer was not taken up by Mr Puryer it seems.
99. [99]
    Mr Puryer also said to me that Mr Hartwell’s report that would take away the quantum issue between the parties.  I cannot possibly accept that submission.  Who knows how Mr Hartwell will have done in his approach the matter (I do not mean to make any criticism of him)?  Who knows whether the defendants will accept it?  Just because they were not interested in a joint expert does not mean they will not and do not intend to challenge whatever Mr Hartwell does.  
100. [100]
     As to point 10 of the list, it is not a case where it is lawyers being dilatory; Mr Puryer is acting for himself.  
101. [101]
     As to paragraph 11, as I have said, there is no satisfactory explanation, much less a proper excuse for the delay.
102. [102]
     And finally, I come to sub (12) in her Honour’s list:

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

103. [103]
     I am satisfied that that condition is amply met in this case.  From time to time in my account of matters, I have identified specific factual matters that have come up just today that will turn on recollections about events long, long past. 
104. [104]
     Mr Somers directed me to cases including, I think, Justice Bond in Cassimatis v Commonwealth Bank of Australia [2016] QSC 281, where his Honour identifies that it is no longer the law that one has to demonstrate something that you have forgotten to be able to prove that you might have forgotten something.   But in any event, Mr Puryer’s optimism that once Mr Hartnell’s report lands, there would be very little factually in dispute or very little difficulty in recalling matters relevant to it I simply reject.  That is particularly so given the issues that arise in the counterclaim.
105. [105]
     Her Honour goes on to observe that the Court’s discretion is not fettered by rigid rules and you have got to take account of all the relevant circumstances.  And one of those is the open offer which Mr Puryer made, and I have not failed to take that into account.  The offer had a concrete section and an ambiguous section.  The concrete section is that he would consent to the strikeout of the amended statement of claim and the further amended statement of claim to the extent they refer to the 19995 and 2000 retainers, and that he would then revert to the original statement of claim.  Mr Somers’ client rejected that offer.  Mr Somers rejected it because he directed me to the inadequacy of the original claim, which does not plead any basis to claim the amount in the memorandum incorporated into it by reference and which we know was calculated on a basis that Mr Puryer would no longer be allowed to advance in the trial.
106. [106]
     Mr Puryer also flagged, although it was not a condition of his offer, that he would seek leave to amend.  Ultimately, my view was that the problem with this offer is that it was very difficult indeed to work out how what he wanted to concede would be worked through in the pleadings and the evidence in an unambiguous way at the ultimate trial, especially bearing in mind the defects of the original statement of claim.  I do not find the offer a persuasive consideration telling against dismissal.
107. [107]
     There is another matter that her Honour points in Custom Credit to that was mentioned in Aon^[5] and mentioned in Armstrong^[6], and that is the consideration that ordinary members of the community are entitled to get on with their lives and plan their affairs without have the continuing threat of litigation and its consequences hanging over them. Ms Favretto’s original litigation hung over her head for eight years.  The dispute about the fees has been hanging over her head for the next 17.  And the responsibility for almost all of that delay lies at Mr Puryer’s door.
108. [108]
     Her Honour also identified matters also identified in Aon and Armstrong and other cases, that delay has a tendency to bring the legal system into disrepute and to decrease the chance of a fair and just result.  

Conclusion

109. [109]
     In my respectful view, the delay in this case is so extreme that, frankly, it should have been clear to Mr Puryer that these proceedings should have been abandoned long ago.  Maybe the fact that that has not been able to be seen by Mr Puryer, now that I have got to the end of an analysis of the history of it, is because Mr Puryer is acting for himself.  In any event, the time has long passed when Ms Favretto should not have to think even another day about this case, and the proceedings are dismissed. 
110. [110]
     I further order the plaintiff pay the defendant’s costs of the application and the proceedings on a standard basis.