Glacial-like pace in the pursuit of pre-commencement procedures

Crompton v Buchanan & Ors [2010] QSC 61


In an application to strike out the claim bought by WorkCover Qld on behalf of the insured in respect of delay of some 12 years, his Honour Justice Jones described the delay of the plaintiff as:

[26] In this instance the rules have been disregarded by the glacial-like pace in the pursuit of pre-commencement procedures. In the end result I take the view that a delay of 12 years between the commencement of the action and the very next step cannot be condoned. At the end of the day, the plaintiff has not shown any good reason for renewing the Notice of Claim after such a delay. The plaintiff’s application should be dismissed. I allow the defendants’ application to strike out the claim.

His Honour granted the application and referred to the principles in:

[16] The starting point were the terms of R 5 of UCPR where the focus is upon the “justice and expeditious resolution of the real issues…at a minimum of expense” and the avoidance of “undue delay, expense and technicality”. As Chief Justice de Jersey expressed in Quinlan v Rothwell2 “the rule has gone to the length of expressly confirming that breach of a party’s implied undertaking ‘to proceed in an expeditious way’ may attract sanctions including, as per the proffered example, dismissal of the proceeding”.3

[17] In Muirhead v The Uniting Church in Australia Property Trust (Q)4 Williams J said:-

“[29] The general principle is that it is for the applicant to establish some good reason why the case should be excepted from the general rule that the court will not exercise its discretion in favour of renewal. (Jones v Jebras & Hill (1968) QdR 13, Licul v Corney (1976) 58 ALJR 439, and Van Leer Australia Pty Ltd v Palace Shipping KK (1979) 180 CLR 337). One of the more recent relevant statements is that of McHugh J in Brisbane South Regional Health Authority v Taylor(1996) 186 CLR 541 at 553:

“…I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.”

[33] At the end of the day, the material is not capable of supporting a finding that there is good reason “for renewing this plaint after the expiration of the limitation period”.

[18] This remark was cited with approval by Keane JA in The IMB Group Ltd (in liquidation) v Australian Competition and Consumer Commission5.

[22] Counsel for the plaintiff relied particularly on the decision of the Court of Appeal in Smith v Harvey-Sutton & Ors6 where a delay of 16 years was not seen as grounds to dismiss the action in circumstances where there had not been raised any specific prejudice. That action had however advanced to the point of being ready for trial.

The Court said:-

“The principles applicable in applications of this kind have been stated in many cases, sometimes with varying emphasis upon one or more of the factors that tend to be relevant in the determination of such cases. Without attempting a comprehensive statement of principle, it may be taken that while the history of the legal proceedings and any explanation concerning the delay are always relevant, the provision of a satisfactory explanation for the delay is not a condition precedent to the continued survival of the action. Usually the most important factor in the exercise of the discretion is the degree of prejudice that the defendant is likely to suffer as a result of the delay. However, individual factors cannot be satisfactorily weighed in isolation, and it is always necessary to identify all relevant factors affecting the particular case, and then determine on balance whether there is good reason for making the order.”7

[24] There is force in the defendants’ submissions. The delay covers a long period by modern case standards but more particularly there is no explanation for much of the delay in the two unidentified periods. I have considered the assertion that the defendants do not allege any specific prejudice but I regard the general impact of prejudice as referred to in Brisbane South Regional Health Authority v Taylor9 is significant here.

[25] The most telling factor in the exercise of my discretion, is that the action has only begun and has not moved to the second step in 12 years. A different consideration would arise if the matter could proceed quickly to trial as was the situation in Smith v Harvey-Sutton (supra). The philosophy of the UCPR is well known and constantly highlighted by this Court to practitioners. That philosophy must also impact on the position where leave is given to proceed with the commencement of proceedings which are then stayed because of lack of compliance with statutory obligation that there is a continuing requirement for the expeditious resolution of the real issues.

2 (2002) 1 QdR 647

3 Ibid at para [4]

4 [1999] QCA 513

5 (2007) 1 QdR 148

6 [1998] QCA 232

7 Ibid at p 15

8 Affidavit Yvette McLaughlin filed 9 October 2009 para [27]

9 (1996) 186 CLR 542 at p 551

Brisbane Barrister – David Cormack

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