Written by Peter CarterFebruary 6, 2011
No step taken in his client’s contract claim for more than four and a half years proved fatal in an application made by a Toowoomba solicitor for leave to proceed under UCPR rule 389.
Proceedings commenced in November 2005. The last formal step was April 2006 when the first defendant filed its defence. In deciding the leave to proceed application, the court addressed the delay, the prospects of success in the overall claim and any prejudice to the defendants if the matter were to proceed.
The final – and only – issue was decided in favour of the plaintiff. The court held that the defendant would not suffer any prejudice if leave were granted. The first question went badly for the plaintiff and its solicitors: there were two periods of greater than 12 months where there was no attempt to explain inaction.
The solicitor’s affidavit offered an open and confronting explanation: “I have deliberately adopted a course of attempting to resolve the litigation by alternate dispute resolution means…as small business operators we are certainly unable to focus on this litigation on a daily basis and have been concerned about the cost of litigation”.
His Honour took these statements as demonstrating a deliberate strategy for delay that could not really be regarded as an excuse. However the statements also demonstrate the range of pressures practitioners must deal with day to day.
The court, in the end, assessed the prospects of the plaintiff actually succeeding in the action as “not particularly strong”. This was a major factor in the decision not to grant leave to proceed.