For around 3 years, Aitken Whyte Lawyers represented a Defendant in proceedings in the Queensland Courts.
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.
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:
When no party has taken a step for 2 years:
These general statements are more particularly described in cases referring to rule 389 of the Uniform Civil Procedure Rules 1999 (Qld).
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.
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:
In determining the applications, the Court rightly considered the Queensland Court of Appeal case of Tyler v Custom Credit Corp Ltd & Ors  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:
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.
Our client was successful.
Costs of the entire proceeding were also awarded in favour of our client.
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.
Aitken Whyte Lawyers
11/8 Pikki Street,
Maroochydore Qld 4558
Ph: +617 5408 0655
Fax: +617 3211 9311