Why No Steps in Time?

CTP Insurance

minutes reading time

DATE PUBLISHED: February 3, 2021

DRANE V BAROLIN TOWER PTY LTD & ORS. [2020] QDC 275

An Application was made pursuant to Rule 389(2) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) for the Plaintiff to have leave to take a step in the proceedings. The Application had come about due to a lack of material action in the claim for a number of years.

WHAT WAS IN DISPUTE?

The parties to the action were in dispute as to whether it was reasonable and appropriate to allow the Plaintiff further time to progress his claim in the circumstances. It was to an injury being sustained in March 2012 pursuant to the Personal Insurance Proceedings Act 2002 (Qld) (“PIPA”). The matter was progressed in time to a compulsory conference, as required pursuant to the pre-Court procedures in the PIPA. and proceedings commenced thereafter by mid-2016. Pleadings closed and the last step taken in the matter was in late 2016.

Subsequently, very little action was taken to progress the matter towards resolution and/or trial in the 3.5 years prior to the Application being made. Pursuant to Rule 389(2) of the UCPR, if no step has been taken in a proceeding for a year, the party who wants to proceed must give a month’s notice to every other party of the intention to proceed, whilst if no step had been taken for two years, a new step may not be taken without order of the Court.

It was apparent by the chronology of the matter that the Plaintiff himself had, on multiple occasions, sought advice from his solicitors to update him on the progression of his claim for which it was evident that there was limited or no response provided to him by his solicitors. This was in respect of the period between early 2018 and early 2020.

The Respondents opposed the Application and submitted that the Plaintiff essentially should have done more to engage with his solicitors and not be ignored/ “fobbed off” over such length of time and he should take responsibility for not being more proactive. That Plaintiff’s solicitors simply blaming themselves and their Counsel for the delay was not sufficient to allow the claim to proceed. Further, the long delay caused prejudice so far as unavailability of witnesses, documents and other evidence given the passage of time.

THE APPLICATION FOR LEAVE TO PROCEED WAS ALLOWED – WHY?

Various factors were considered and taking into account those set out in the Decision of Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 (“Tyler”). Tyler was reference to why the delay in the action had occurred and whether in the interests of justice the discretion should be given by the Court to allow the claim to proceed.

The factors that the Court considered relevant here concerned the prospects of success, the prejudice to the Plaintiff if his claim was struck out and as against the Respondents’ prejudice resulting from the delay.

To allowing the Application, it was ultimately found that there was no particular prejudice to the Respondents other than which would normally occur in any delay of significant time. That the Respondents had had reasonable notice of the claim for which pre-Court proceedings had been complied with so as to allow investigations considered appropriate by the Respondents to be undertaken. The prospects of success were said to be at least reasonable. The reasons for the delay were as a result of the lack of action by the Plaintiff’s solicitors and Counsel and not to the Plaintiff himself. Given that proceedings had been commenced and pleadings closed, to not allow the Plaintiff to proceed with his claim due to the unreasonable actions of others, would be inappropriately adverse to him.

IMPLICATIONS

The Court in finding for the Plaintiff on the balance very much took into account that the reasons for the lack of steps taken in the action was not due to the fault of the Plaintiff himself but by his solicitors. If delays to a matter were due to a plaintiff personally, however, the result may well have been different. Further, solicitors merely blaming themselves for lack of action so as to not cause a client to lose their claim may well still find that leave is still not given in circumstances where there are findings of adverse prejudice to other parties, particularly where such long delays have not given other parties reasonable opportunity to investigate the circumstances of the claim.

Related INSIGHTS


How to Avoid Paying Compensation to Your Principal Contractor as a Small Business
Defining a Dangerous Recreational Activity in Light of the Court of Appeal’s New Category
Queensland – The Must-Visit Location For Fishing Expeditions?
Razorback Road Strikes Again – Injured Driver Awarded Over $450k In Damages

August 3, 2021

Commercial, Financial Lines Insurance

The High Court Affirms A COVID-19 Remedy For Business Interruptions
Cooking up an Insurance Claim: Why Insurers Should Not Rely On Wilful Act Exclusions
Insurers’ Subrogation Issues in Class Actions

March 3, 2021

Financial Lines Insurance

AFCA Insurance Broker Decisions 1/1/19 to 31/12/20