Proceedings Dismissed For Want Of Prosecution

Aitken Whyte Lawyers Sunshine Coast


Proceedings Dismissed Due To Prejudice Caused To Defendant By Delay

For around 3 years, Aitken Whyte Lawyers represented a Defendant in proceedings in the Queensland Courts.

The Background

In early 2017, the Plaintiff in the Court proceedings sued our client for events dating back to 2012.

The Court proceedings were commenced within the relevant 6-year limitation period under section 10 of the Limitation of Actions Act 1974 (Qld).

We filed a Defence on behalf of the Defendant within the relevant time. The Plaintiff did not file any Reply to the Defence.

The Delay

No steps were taken by either party in the Court proceedings for around 3 years.

There are rules in the civil procedure process (Uniform Civil Procedure Rules) around taking steps in proceedings which have been delayed.


When no party has taken a step for 1 year:

  • A party can take a step to progress the proceedings if they give 1 month’s notice to the other parties.

When no party has taken a step for 2 years:

  • A party needs leave of the Court to take a step.


These general statements are more particularly described in cases referring to rule 389 of the Uniform Civil Procedure Rules 1999 (Qld).

The Plaintiff’s Application to Proceed

The Plaintiff applied to Court for leave to take a step/leave to proceed, only in 2020.

We represented the Defendant at the hearing and opposed the Plaintiff’s Application.

The Defendant’s Application to Dismiss the Proceedings

We also applied on behalf of the Defendant to dismiss the Plaintiff’s proceedings for want of prosecution (failing to prosecute the claim), under rule 280 of the Uniform Civil Procedure Rules.
The Court heard both applications together:

  • the plaintiff’s application for leave to take a step; and
  • the defendant’s application to dismiss the proceedings.

What the Court Considered

In determining the applications, the Court rightly considered the Queensland Court of Appeal case of Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178. Her Honour Justice Atkinson (with whom McMurdo J and McPherson JA agreed) described the relevant test in Tyler.

The test described in Tyler requires consideration by the Court of the following factors:

  1. how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
  2. how long ago the litigation was commenced or causes of action were added;
  3. what prospects the plaintiff has of success in the action;
  4. whether or not there has been disobedience of Court orders or directions;
  5. whether or not the litigation has been characterised by periods of delay;
  6. whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
  7. whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecuniosity;
  8. whether the litigation between the parties would be concluded by the
    striking out of the plaintiff’s claim;
  9. how far the litigation has progressed;
  10. whether or not the delay has been caused by the plaintiff’s lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
  11. whether there is a satisfactory explanation for the delay;
  12. whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.

Recent decisions in Supreme Court and Queensland Court of Appeal matters continue to refer to this case of Tyler despite it being 20 years old.

In our view, the final factor concerning prejudice is often a critical factor. If there is clear evidence of the defendant suffering prejudice due to the plaintiff’s delay, the Court should seriously consider dismissing the entire proceedings.

In our recent case, the Court considered all the factors from Tyler. In particular, the Court considered point 12; whether the delay had prejudiced the proceedings. The Court considered the Defendant had been prejudiced as relevant documents from 2012 could not be produced by the plaintiff.

The Outcome

Our client was successful.

  • the plaintiff’s application for leave to take a step was dismissed; and
  • the defendant’s application to dismiss the entire proceeding was granted.

Costs of the entire proceeding were also awarded in favour of our client.

Here to Help

Proper experience in defending proceedings before the Court is essential. Aitken Whyte Lawyers are focused on results. Our Litigation and Dispute Resolution Team will advise you on the proper course to take if a claim has been filed against you. We can advise you on whether there may be grounds to apply to have the proceedings dismissed.

Aitken Whyte Lawyers can assist you with all dismissal proceedings and applications.

Office Location and Contact Details

Sunshine Coast

Aitken Whyte Lawyers
11/8 Pikki Street,
Maroochydore Qld 4558
Ph: +617 5408 0655
Fax: +617 3211 9311
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Aitken Whyte Lawyers

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T: 07 5408 0655

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Lawyers for Sunshine Coast, Maroochydore, Mooloolaba, Buderim, Noosa, Nambour and Caloundra, Queensland, Australia.