In the recent case of Uzsoki v McArthur [2011] QDC 60, Andrews SC DCJ dismissed the proceedings due to the failure of the plaintiff’s solicitors to take appropriate steps within an appropriate timeframe under the Uniform Civil Procedure Rules.
The civil litigation involved a claim for damages for psychological injury allegedly sustained as a result of the defendant’s conduct whilst carrying on the business of a massage therapist. The events leading to this claim occurred in the late 1990’s and proceedings were originally commenced in 2001. Several other civil proceedings against the same defendant were eventually struck out and related criminal proceedings were withdrawn.
Throughout the duration of the civil litigation, some delays were due to the plaintiff awaiting the outcome of these related proceedings as well as delays in receiving medical reports and multiple changes of legal representation by the plaintiff.
In the proceedings by Uzsoki, the defendant relied on UCPR r5 and r280 to argue that the plaintiff had failed to take the next step in proceedings within an appropriate timeframe and therefore the action should be dismissed for want of prosecution.
Rule 5 essentially provides that all parties impliedly undertake to proceed in an expeditious way to avoid undue delay and expense, giving the court power to impose sanctions if a party does not comply with these rules.
Rule 280 provides that if a party is required by the rules to take a step or to comply with an order by the court and fails to do so within a stated time in litigation, the defendant or respondent may apply to the court for an order dismissing the proceeding for want of prosecution.
The defendant further relied on the Supreme Court of Queensland Act 1991 s 85 which states that if 2 years have passed since the last step was taken in a proceeding, the court may dismiss the proceeding.
The last relevant steps taken by the plaintiff’s solicitors were the filing and serving on the defendant of a fourth amended statement of claim on 6 December 2007. More than 18 months followed before any other steps were taken by counsel, which was the serving of the plaintiff’s list of documents on the defendant on 18 June 2009 (however they failed to provide, as prescribed under UCPR r 389 (1), a notice of intention to proceed 1 month prior).
The ultimate result was that the proceedings were dismissed ending the litigation. Andrews SC DCJ took into consideration many factors when reaching a determination, including the fact that the delays caused the defendant to be “constantly anxious and unable to plan”. Furthermore the fact that the original action was commenced back in 2001 and appeared “prima facie difficult to win” due to the plaintiff’s onus to prove that certain conversations and events took place back in the 90’s, which could only be attempted through the provision of oral evidence, were considered unfair on the defendant.
Andrews SC DCJ rejected the Defendant’s argument that the plaintiff had no relevant interest in the outcomes of the related proceedings, however stated that the interest in the outcome of these appeals should have encouraged “expeditious prosecution of this proceeding”, concluding that there was no satisfactory explanation for the delay of the plaintiff and her counsel or their irregular steps taken, therefore dismissing it on the grounds that plaintiff’s counsel failed to comply with the implied undertaking in r 5 UCPR.
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