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This article was provided by Anthony Henley, Partner at Moray & Agnew Brisbane.
A recent case in Queensland was dismissed because the Plaintiff did not push the matter forward. It was a $1.1M damages claim brought by a company controlled by an 80 year old largely self-represented litigant with health issues. As an aside the outcome demonstrates that, despite concerns about the potential sympathy factor, these applications can be worth running. The decision was recently upheld on appeal: Ferrari Estate Holdings Pty Ltd v Cooktown Earthmoving & Quarrying Pty Ltd & Anor  QCA 266.
The case is significant because it discusses the ability of defendants in Queensland to rely on prejudice arguments based on delay when they have the means of progressing the proceedings.
Facts and decision of primary judge
In brief, in March 2004, the claimant owned property which sustained water damage as an alleged result of development/construction work undertaken by the defendant builder on neighbouring land. Proceedings were commenced 6 years later, in March 2010, and by May 2012 pleadings and disclosure were complete and the defendant had delivered a favourable expert report on liability (in January 2011). No further steps were taken in the three year period leading up to the dismissal application filed in May 2015. The claimant had been obliged under the Uniform Civil Procedure Rules (UCPR) to obtain any expert report on which it intended to rely by August 2010, but no reports had been delivered, despite many promises.
The claimant offered no compelling explanation for the delay in commencing and/or progressing the proceedings (her health issues were not regarded as debilitating), was unable to demonstrate reasonable prospects of success and the proceedings were still not close to being ready for trial. As is typical, however, most telling was the primary judge's finding regarding prejudice i.e. that due to the unavailability of witnesses and/or deterioration in witness recollection some 11 years on, a fair trial was no longer possible. For these reasons, the claim was dismissed.
The most interesting aspect of the case on appeal was the argument that the defendant could not complain of prejudice due to delay because it could have brought an application for directions to progress the matter.
In this context, the claimant relied on rule 5 of the UCPR which states that a party 'impliedly undertakes to the court and the other parties to proceed in an expeditious way'. The Court of Appeal decided that rule 5 'does not make a defendant responsible to prosecute a plaintiff's case', although recognised that there may be cases where 'inaction by a defendant in the face of impeding prejudice if delay continues, may render a later claim of actual prejudice less creditworthy, and the prejudice, if established, a less weighty factor'.
In this case, however, in an effort to demonstrate that its case was being progressed and in response to chase ups, the claimant periodically advised the defendant that it was in the process of securing expert reports, which made it difficult in the context of the application to complain about the defendant's failure to apply to court to compel their delivery.
There is no automatic case management in the Supreme Court of Queensland but the right of defendants in some cases to 'let sleeping dogs lie' does not mean that plaintiffs are necessarily responsible for any prejudice they suffer due to delay in the progress of the proceedings, as it is too simplistic to regard litigation as a 'one-sided affair resting entirely on the plaintiff'. However, on the facts of this case, the claimant was held responsible for the delay causative of the prejudice to the defendant which was critical to the outcome.