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[2025] QSC 182
The proceedings had commenced in 2021 and moved forward slowly and intermittently. The plaintiffs filed an amended statement of claim in 2024, an action which was challenged by the defendants on the basis that leave was required under r 389 UCPR before a further step in the proceeding could be taken. The plaintiffs contended that leave was not required because a mediation which had occurred in 2023 was a step in the proceeding. Her Honour determined, having regard to relevant authority, that a mediation could be a step in a proceeding for the purposes of r 389, and that on the facts of this case the mediation had been such a step, meaning that leave was not required.
Muir J
8 August 2025
The proceedings had been commenced in 2021, and in February 2024 the plaintiffs filed an amended statement of claim. [1]–[2]. The defendants applied for an order declaring the filing ineffectual, on the basis that the plaintiffs were required to seek leave under r 389 Uniform Civil Procedure Rules 1999 (“UCPR”), significant time having passed since the last step in the proceedings, and leave had not been sought. [3].
The plaintiff argued that an unsuccessful mediation in February 2023 was a step in the proceedings, and that, therefore, leave under r 389 was not required. [4]–[5]. The question which arises for noting is whether the mediation was a step in the proceedings.
Whether the mediation was a step in the proceedings
Her Honour considered the effect of competing authorities, and in particular the reasoning of Porter J in Coad v Dimmick (2013) 22 Tas R 351 (“Coad”), and Peter Lyons J in Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2013] 2 Qd R 202 (“Artahs”). [35]–[41]. Those authorities emphasise that determining whether a mediation is a step in the proceedings will turn on whether the mediation can be characterised as carrying the action forward and whether it is done with that intention. [38].
However, her Honour acknowledged that unlike in Tasmania, where Coad was decided, the UCPR does not provide for a mandatory settlement process, a factor which was relevant to the analysis in that case. [43]. But, on the authority of Artahs, whether a mediation in a given case is a step in the proceeding will turn on the facts. [43], [47].
In this case, considering the correspondence between the parties about the mediation, including that the parties by their mediation agreement intended that it be treated as if it arose by court order, her Honour concluded that the mediation was a sincere attempt to bring the proceedings towards a conclusion, and that it gave the parties “a better understanding of their strengths and weaknesses”. [49]–[50]. For those reasons, the mediation was a step in the proceedings within the meaning of r 389(2) UCPR. [51].
Disposition
Her Honour concluded that, while leave was not required under r 389, it was required pursuant to r 376. Leave was granted and the amended statement of claim ordered effective from 27 February 2025.
B Wilson of Counsel