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[2022] QSC 214
This case involved an application to declare an irregular step taken to be effectual, pursuant to r 371(2)(d) UCPR. The irregularity arose because there was non-compliance with r 389(1) UCPR in that one month’s notice was required to be given before taking of a step after service of the relevant notice. At issue was whether the applicant required leave to proceed under r 389(2) UCPR, because no effectual step had been taken for 2 years. Justice Crowley considered that the applicant was able to apply under r 371(2)(d), and exercised the discretion to declare the irregular step effectual.
Crowley J
26 September 2022 (ex tempore)
Background
This judgment arises out of proceedings in which the plaintiff seeks damages from the defendant architectural firm, which designed a sporting facility for the plaintiff. [1]–[4]. Apart from the events in issue in this application, the last formal step in the proceeding had been taken on 30 July 2020, when the plaintiff provided the defendant with copies of certain documents. [6]. From that time until 13 June 2022, the plaintiff did not take any “step in the proceeding” (for the purposes of r 389 UCPR). [7].
On 13 June 2022, the plaintiff sent a letter to the defendant giving notice under r 389(1) UCPR that it intended to take a step in the proceeding. [8]. That rule provides that if no step has been taken for 1 year, before taking any step, a party who wants to proceed must “give a month’s notice”. [10]. Contrary to that requirement, on the same date the plaintiff also enclosed a copy of an expert report. [8]. This constituted a step in the proceeding before the expiry of the one month notice period required by r 389(1). [12].
On 19 August 2022, the plaintiff served a further list of documents on the defendant. That same day, the defendant wrote to the plaintiff stating that it considered the proceeding to be stayed pursuant to r 389(2) and that it considered the steps taken on 13 June 2022 and 19 August 2022 to be irregular (“the irregular steps”). [9]. Rule 389(2) provides that if no step has been taken in a proceeding for 2 years, a new step may not be taken without the order of the court. [10]. Rule 371 provides that a failure to comply with the rules (here, the failure to give the 1 month notice before taking any other step), is an irregularity. [11].
The application to declare the irregular steps effectual
The plaintiff sought an order under r 371(2)(d), which provides that if there has been a failure to comply with the UCPR, the court may “declare a document or step taken to be effectual”. [11].
Why the application was successful
Justice Crowley observed that the key issue was the interaction between rr 371 and 389 of the UCPR. [1]. In his Honour’s view, the plaintiff was correct that if a declaration were to be made that the service of the expert report was effectual under r 371(2)(d), then the irregularity would be rectified and it would have constituted a step in the proceeding. In that event, a regular step would have been taken within 2 years since the last step, and so leave to proceed under r 389(2) would not be required. [27]. His Honour noted that this conclusion was supported by Bond J in Ure v Robinson [2017] 2 Qd R 566, where his Honour had said that:
“The proper construction of r 389(2) is that the ‘last step’ contemplated must be the last effectual step, namely a step which was effectual because it was regular when taken, or a step which, although irregular when taken, has since been declared to be effectual under the rules.” (Emphasis added). [20].
Having concluded that the plaintiff was not required to seek leave to proceed under r 389(2) before its application under r 371(2)(d) could be considered, his Honour then addressed whether the court should exercise the discretion provided by that rule. [36]–[37]. In this regard, his Honour noted that there did not appear to be any cases that attempt to “identify the matters that may be relevant to the exercise of discretion under r 371(2)(d)”. [18]. In the circumstances of this case, however, his Honour appeared to place particular weight on a number of considerations, including that:
(1) the purpose of r 371(1) is that an irregularity is not a nullity;
(2) the irregularity in this case was a “mistake or … oversight”, rather than deliberate;
(3) the step in this matter could have been regularly taken by waiting for one month before serving the report. In effect, the irregularity here was due to “serving the report too early, not too late”;
(4) the application for an order under r 371(2)(d) had been promptly sought;
(5) no prejudice on the part of the defendant had been identified, beyond delay in finalising the litigation; and
(6) the delay in the proceeding did not amount to “unreasonable delay”. [37].
Having regard to those matters (amongst others), his Honour considered it appropriate to declare under r 371(2)(d) that the irregular steps were effectual. [38].
W Isdale