Chapter 1 – Preliminary
 Short title go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
 Commencement go to top
The meaning of this rule does not appear to have been considered in any published decision of a Queensland court.
 Application go to top
A proceeding under the Criminal Proceeds Confiscation Act 2002 (Qld) which is not a prosecution for an offence against it, is a civil proceeding, including for the purpose of r 3:,  (Holmes J).
The effect of s 130(3)(a) of the Electoral Act 1992 (Qld) is that a person who wishes to dispute an election must file with the Supreme Court registry an application to the Supreme Court exercising its jurisdiction as the Court of Disputed Returns. Such an application is, therefore, an originating process commencing a civil proceeding in the Supreme Court for the purposes of r 3:,  (Court of Appeal, per Fraser JA).
 Dictionary go to top
The term "Claim" is not used in the UCPR to refer to a demand, a cause of action, a bundle of rights against a particular person, a paragraph or element in a prayer for relief or any other abstraction. The term “Claim” has a specific meaning under the UCPR as defined by schedule 4 to the UCPR. That is, it is a document under Ch 2 Pt 3 starting a proceeding:,  (Fryberg J.)
 Philosophy—overriding obligations of parties and court go to top
The primary consideration when applying the UCPR is the objective in r 5: Palermo v National Australia Bank Ltd  QCA 321 at .
Rule 5 gives express recognition to the importance of expeditious resolution of issues in proceedings. The combination of rr 5, 280 and 371 re-affirm the Supreme Court’s longstanding powers of dismissal. Although the Supreme Court’s inherent power remains, the enactment of r 5 suggests that the Court will now be less tolerant of delay and that the expedition of proceedings should be encouraged to a greater extent than was formerly the case:,  (Court of Appeal, Thomas JA, de Jersey CJ and Mackenzie J agreeing).
The operation of r 5(1) means that the UCPR are premised on the need for an early, comprehensive definition of the case being advanced and the equally early responsive definition of the position of the defence:,  (Court of Appeal, de Jersey CJ, Williams JA agreeing).
The application of r 5, which provides for sanctions arising from a failure to act expeditiously, including dismissal, confirms that parties do not have an inalienable right to a hearing on all issues on the merits:,  (Court of Appeal, de Jersey CJ, McPherson JA and Williams JA agreeing).
The power to make an order must be exercised for the purposes for which that power is conferred. The purpose of the rules, as set out in r 5, generally are “to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense”, the rules are to be applied “with the objective of avoiding undue delay, expense and technicality and facilitating” that purpose, and each party “impliedly undertakes to the court and to the other parties to proceed in an expeditious way”:,  (Court of Appeal, Fraser JA, Morrison JA and North J agreeing).
The proper interpretation of r 5 appears to be that, when faced with an established practice which can lead to “undue delay, expense and technicality”, the Court should attempt to avoid the result of that practice:,  (Court of Appeal, Pincus JA, McMurdo P and Thomas JA agreeing).
The requirement of expedition found in r 5(1) does not deprive the court of discretion in relation to the speed at which a proceeding is conducted, because of the particular circumstances of the case:,  (Mullins J).
The rules of court are intended to assist in the just resolution of disputes, and not to confine the process unduly. On the other hand procedural certainty is an aspect of that process, and the Court should not give its imprimatur to “blithe” conduct of litigation without regard to what are quite basic and well known requirements. The very broad powers given to the Court by the Uniform Civil Procedure Rules should be used judiciously to achieve the result which is fair and just in all the circumstances:,  (Court of Appeal, Wilson J, McPherson JA and Thomas JA agreeing).
The charter of procedure contained in the UCPR cannot be approached on the basis that if important provisions are ignored, even if inadvertently, the court may be expected to act indulgently and rectify the omission. Fulfilling procedural requirements will often contribute significantly to securing an ultimate result which may be considered just:,  (Court of Appeal, de Jersey CJ, McPherson JA and Williams J agreeing).
The court has jurisdiction under r 5(4) to dismiss a proceeding for failure to comply with the undertaking to the court under r 5 to proceed in an expeditious way. This jurisdiction may be exercised by the court in the case of a clear or deliberate breach of this undertaking, such as the deliberate failure of a party to promptly serve proceedings once they have been issued:, ,  (McGill DCJ).
The rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that the parties have the opportunity of full preparation of their case before the trial commences:,  (Court of Appeal, Thomas JA, de Jersey CJ and Mackenzie J agreeing).
Rules 5(3) and (4) should not be applied in a punitive way:,  (Holmes J), citing
Rule 5, in setting out the objects of the rules, guides the exercise of the Court’s discretion in managing proceedings before it:,  (per de Jersey CJ); ,  (Pincus JA).
Rule 5(4) does not authorise dismissal of a proceeding in the absence of some identified breach of the rules or an order of the Court:,  (Holmes JA).
Implied undertaking to proceed in an expeditious way
A plaintiff who succeeds in obtaining a restraining order is under an obligation to press on with the proceeding as rapidly as it can, so that if it fails to establish liability, the disadvantage which the order imposes upon the defendant will be lessened so far as possible:, ,  (Helman J), citing
A self-represented litigant, like any other litigant, impliedly undertakes to the Court and to the other parties to proceed in any expeditious way. The just resolution of the real issues in civil proceedings may, where appropriate, require a judge to give proper assistance to self-represented litigants to ensure that the proceedings are conducted fairly and to avoid “undue delay, expense and technicality”:,  (Applegarth J), cited with approval by Chesterman JA in , .
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175;  HCA 27 (Aon)
Whilst there has been some modification to the previously held view that an order for costs occasioned by, for example, late amendment resulting in an adjournment, would overcome injustice to the opponent, that has mostly been expressed in relation to the strain that litigation imposes on litigants, and in particular, litigants who are individuals:,  (Court of Appeal, Morrison JA, Holmes JA and Boddice J agreeing), citing
In Aon the High Court considered a rule applicable to proceedings, which was the equivalent of r 5 in the UCPR. The competing considerations referred to by the High Court in that decision (at  – ), apply equally to an assessment of the effect of r 5, in circumstances where a case changes late in the pre-trial process, or at trial:,  (Court of Appeal, Morrison JA, Holmes JA and Boddice J agreeing). In Aon, the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) said (at  – ):
The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reaches relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court’s discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.
The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in JL Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court’s attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.
Because of the operation of r 5 of the UCPR, the principles in Aon are of general application to an application to amend pleadings. Accordingly, those principles apply to amendments prior to the filing of a request for trial date or the allocation of trial dates by the supervising judge, whether or not r 378 UCPR is invoked:, ,  (Court of Appeal, Flanagan J, McMurdo P and Morrison JA agreeing).
The meaning of “just resolution” in r 5(1) was explained by the High Court in Aon at , in respect of the ACT equivalent of that rule in the UCPR:,  (Court of Appeal, Muir JA), cited with approval in ,  (Muir JA, White JA and Philippides J agreeing). In Aon, the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) said (at ):
Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a “just resolution” is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimize costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
 Names of all parties to be used go to top
It is desirable for parties to apply this rule to abbreviate lengthy headings where possible: Coleman v Orr  QSC 215 (Mullins J) at .
 Extending and shortening time go to top
Rule 7(1) of the UCPR is a remedial provision in aid of the purpose expressed in r 5 of facilitating the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. The rule confers on the Court a broad power to relieve against injustice:,  (Court of Appeal, Muir JA, Cullinane J and Douglas J agreeing), citing
While r 7(1) is a remedial power, the power is to be exercised with caution and, in the case of self executing orders, with due regard to the public policy centred in the finality of litigation and the principle that orders are made to be observed:, , (Wilson J), citing
In order to obtain the benefit of an extension of time for compliance, for the purpose of r 7, it is not necessary that the application to extend be made within the initial time for compliance with the order:, ,  (P Lyons J), citing
Inof a rule cognate to r 7 of the UCPR, Wilson J (Brennan, Deane, Dawson JJ agreeing) said at 283-284:
The plain meaning of these words is very wide. The court may extend “any time” fixed by “any … order” and may do so as well after as before the time expires and even though the application to extend is not made until after the time has expired. As Baggallay LJ said inof the analogous English rule, it gives “very full discretionary power; indeed, I can hardly imagine a more extended discretion”. It is a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case. It would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non-compliance. [emphasis added]
In, Keane JA (Holmes JA and McMeekin J agreeing) at  approved of the following summary of the factors relevant to the exercise of the Court’s discretion in applications made pursuant to r 7 of the UCPR by the primary judge in that case:
.. matters relevant to the exercise of these discretions are the conduct of the defaulting party and the prosecution of the proceeding generally, the circumstances in which the self-executing order was made, any aspect of prejudice to the innocent party, and the circumstances of non-compliance.
Power to extend time limited to UCPR
The power of the court to authorise an extension of time under r 7(1) is limited to a time set under the UCPR or by an order of a court or judge. The court may not apply r 7(1) to authorise the extension of a time fixed by other statutes specifying limits for doing an act:, - (Court of Appeal, McPherson JA, Jerrard JA and Wilson J agreeing).
Interaction with r 667(2)
Rule 667(2), by listing a number of circumstances in which no time limit applies, does not impinge on the extent of the power conferred by r 7(1), although it might be relevant to the exercise of that power:, , ,  (Court of Appeal, Muir JA, Cullinane J and Douglas J agreeing).
Interaction with r 668
Whether an application to relieve against the consequences of non-compliance with a self-executing order be considered as one to extend time under r 7 or r 668 of the UCPR, the same factors inform the exercise of the discretion:,  (Wilson J).
The discretion conferred by r 7(1) should only be exercised in favour of a party seeking an extension of time contained in a consent order where there is a good reason for depriving the other party of the benefit of a free and voluntary agreement:,  (Court of Appeal, Keane JA, Holmes JA and McKeekin J agreeing), citing
Interaction with rule 24(2)
Although under r 24(2) the Registrar may renew a claim for “not more than 1 year at a time”, the court may renew it for a greater period in exercise of its general power to extend a time set under the rules by r 7:, ,  (Court of Appeal, Wilson J, McPherson JA and Thomas JA agreeing), citing