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This matter concerned an appeal from a dismissal of a claim for want of prosecution. It raises issues of the interrelationship between rr 371 and 389 of the Uniform Civil Procedure Rules 1999. The Court held that, on the proper construction of r 389(2), the “last step” contemplated is the last effectual step – being the last regular step, or irregular step which has since been declared effectual under the rules. The decision in Perez v Transfield (Qld) Pty Ltd is no longer applicable.
Gotterson and Morrison JJA, and Bond J
28 February 2017
The facts of this matter can be stated briefly. On 16 September 2016, the primary judge dismissed for want of prosecution a claim brought by the appellant against the respondent, and a counterclaim brought by the respondent against the appellant. .
On appeal, the appellant argued that the primary judge had misconstrued rr 371 and 389 of the Uniform Civil Procedure Rules 1999 (“UCPR”) and erred in not following the approach taken to the equivalent provisions in the former Rules of the Supreme Court in Perez v Transfield (Qld) Pty Ltd  Qd R 444 (“Perez”). . In addition, it was argued that the primary judge erred in not attributing significance to the fact that the prosecution of the claim was ‘stalled and frustrated’ by the respondent. .
In considering the first issue, Bond J (with whom Gotterson and Morrison JJA agreed) began by outlining the relevant rules of the UCPR and contrasting them with the previous rules. . The relevant provisions are outlined below.
Rule 371 deals with the effect of a failure to comply with the rules and provides in subsection (1) that:
“A failure to comply with these rules is an irregularity and does not render a proceeding, a document, step taken or order made in a proceeding, a nullity.”
In addition, by r 371(2) of the UCPR, the Court is given various powers, including to the ability to set aside a proceeding and to declare a document or step taken to be effectual or ineffectual if there has been a failure to comply with the rules.
Rule 389 of the UCPR addresses the continuation of a proceeding after delay. Specifically, r 389(2) provides:
“If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.”
Bond J observed that there were two key changes in the UCPR from the old rules which could “immediately be observed”. . First, r 371 does not reproduce a provision in the old rules which stated that:
“An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein 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.”
Second, r 371 introduced a new express power (which did not exist in the former rules) to declare a step effectual or ineffectual. .
The appellant’s argument centred around steps taken in the proceeding on 20 March 2015. It was common ground that by that date no step had been taken in the proceeding for more than two years. . The effect was that, pursuant to r 389, no step could be taken without an order of the court. Notwithstanding this requirement, on 20 March 2015, the solicitors for the appellant provided a list of documents to the respondent. . However, the “failure to comply with r 389(2) was an irregularity and did not render the step a nullity”. .
The appellant sought to argue that “because the irregular step was not a nullity, once it had been taken, it became the ‘last step’ for the purpose of the operation of r 389(2) going forward”. . While she recognised that this would be subject to the ability of the respondent to bring an application to declare that step ineffectual, the appellant argued that the rule in Perez would apply “such that if an opponent failed to bring an application under r 371 to declare ineffectual the hypothesised last step within a reasonable time, the opponent would lose its rights to rely on r 389(2)”. . In sum, the appellant submitted that because an application had not been brought to declare the step ineffectual within a reasonable time, it was taken to be the last step in the proceeding for the purposes of r 389(2). The appellant argued that the primary judge erred in concluding that an order under r 389(2) was required when two years had not elapsed since the making of the last step. .
In rejecting the appellant’s construction of the section, Bond J noted that the “evident intention of r 389 is that a stay should be imposed on proceedings in certain circumstances and to require any person who seeks to lift the stay to approach the Court to seek an order”. . His Honour considered that the construction of r 389 contended for by the appellant would defeat that intention:
“By the simple expedient of ignoring the requirements of r 389 and taking a step after the expiry of the two year period without approaching the court, a noncompliant litigant would avoid the need ever to comply with r 389(2). If the irregular step taken in breach of r 389(2) is a step for the purposes of r 389(2), once the irregular step was taken it could no longer be said of that proceeding that no step had been taken for two years since the last step. The two year time period would have started running again by virtue of the irregular step.”
The proper construction of r 389(2), according to his Honour, was 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”. .
His Honour also agreed with the conclusion of the primary judge that the decision in Perez “no longer represented the law”. . His Honour noted that the result in that case was driven by the provision in the former rules (outlined above) which required an application to be made within a reasonable time. . “[T]he fact that the UCPR did not reproduce any equivalent of [the section] rendered Perez inapplicable”. .
For these reasons, Bond J concluded that the primary judge had not erred in concluding that the proceeding had been stayed and that Perez no longer represented the law. –. His Honour also rejected the appellant’s contention that the primary judged “erred in not finding, and not attributing significance to, the fact that the delay in the prosecution of the claim was stalled and frustrated by the respondent”. . The primary judge had not mistaken the facts and there was “no merit in this complaint”. .
The appeal was dismissed with costs.