When plaintiffs drag the chain – A uniquely Queensland perspective

21 November 2016

Recent Queensland professional liability cases illustrate the influence of rule 5 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) on the court’s decisions to dismiss claims were the plaintiffs have been dilatory in prosecuting them.

In particular, in Lachlan McIntosh & Anor v Maitland trading as Maitland Lawyers & Ors [2016] QSC 203 (McIntosh) and Ferrari Estate Holdings Pty Ltd v Cooktown Earthmoving & Quarrying Pty Ltd & Anor [2016] QCA 266 (Ferrari), the defendants successfully had claims dismissed due to unexplained and inexcusable inaction of the plaintiffs. In both cases, the plaintiffs had delayed initially commencing proceeding. At the time the plaintiffs agitated prosecution of their claims, limitation periods for some of the causes of action were expired, or in issue.

McIntosh

In McIntosh the defendants made an application to the Supreme Court for the claim to be dismissed under rule 241 of the UCPR in circumstances where:

  • The claim was not served in a one year period; and
  • The registrar had ordered a renewal of the claim for 12 months, at which time limitation periods had expired.

Jackson J decided in the defendants’ favour on grounds including that:

  • A significant consideration was that at the time of the renewal of the claim, the time under the statue of limitations had expired for some of the causes of action alleged in the statement of claim;
  • It would be inconsistent with statutory rules and principles (including rule 5 of the UCPR) to relax legal time limits;
  • In following an ‘important passage’ from the Court of Appeal decision of IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission 1 Qd R 148 (IMB Group Pty Ltd), if the claim became stale because the plaintiff deliberately did not serve it, it will be difficult for them to demonstrate good reason to renew it given rule 5(3) of the UCPR;
  • Waiting upon a reserved judgment in other proceedings, and that the defendants’ knew about the claim, were not ‘good reasons’;
  • Where more than six years have past since the relevant events defendants could easily be prejudiced by the delay in their ability to respond to a claim about the quality of their advice; and
  • There is no reason to investigate the success of a plaintiffs’ claim in great detail. Where the limitation period has expired, that is not a ‘good reason’.

Jackson J recognised two New South Wales cases subsequent to IMB Group Pty Ltd that did not apply such harsh reasoning, however, stated he was bound to follow IMB Group Pty Ltd.

Ferrari

In Ferrari, the Court of Appeal upheld the trial judge’s decision to dismiss the plaintiff’s claim for want of prosecution pursuant to rule 2802 of the UCPR. In that matter, the plaintiff had engaged in prolonged delays both before and after the commencement of the proceedings.

Elements relevant to the Court of Appeal’s decision were:

  • The plaintiff failed to comply with its implied undertaking to proceed in an expeditious way under rule 5 (3) of the UCPR;
  • The claim and statement of claim was filed in 2010 about six years after the plaintiff became aware of the alleged damage. Defences under the statue of limitations were raised;
  • The plaintiff caused further delay by not taking steps between May 2012 and May 2015. Problems with lawyers, ill health, and of self representation, were considered ‘wholly inadequate’ explanations;
  • The delay was considered to be prejudicial to the defendants and strong prospects of success of the plaintiff were not demonstrated; and
  • Rule 5 (3) of the UCPR does not make a defendant responsible to prosecute a plaintiff’s case.
Practical implications/take home messages

McIntosh and Ferrari demonstrate that whilst rule 5 (3) means that the parties have made an obligation to proceed expeditiously; it places no obligations on respondents to prosecute claimants’ cases for them. This is not to suggest, however, that respondents are not required to meet the timeframes imposed on them by the UCPR or the Court.

Further that in instances where claimants are being unexplainably dilatory in prosecuting their claim (particularly when limitation periods are in issue) respondents should consider an application to have the claim dismissed (on grounds including that the claimants’ conduct is in breach of rule 5 of the UCPR and has caused them prejudice). The onus will then be on the claimant to impress the court there was good reason for their conduct. Given the high evidentiary bar in McIntosh and Ferrari, this could easily prove difficult for many claimants.

This article was written by Andrew Cheetham, Partner and Zoƫ Cunich, Solicitor.


1Rule 24 of the UCPR provides that the registrar may renew a claim for up to one year (that has not been served within 12 months of it being filed) if reasonable efforts have been made to serve the claim, or there is another good reason to renew it.

2Rule 280 of the UCPR provides that a defendant may apply to the court to dismiss the proceeding for want of prosecution, if the plaintiff does not do what is required in the time stated by the UCPR or an order of the court.

Subscribe to HWL Ebsworth Publications and Events

HWL Ebsworth regularly publishes articles and newsletters to keep our clients up to date on the latest legal developments and what this means for your business.

To receive these updates via email, please complete the subscription form and indicate which areas of law you would like to receive information on.

Contact us