CASE NOTE: Way & Anor v Primo Rossi Pty Ltd & Anor [2018] QCA 203

Way & Anor v Primo Rossi Pty Ltd & Anor [2018] QCA 203

This appeal from a decision of Muir DCJ in the District Court at Southport to the Court of Appeal involved a consideration of Rule 389 of the Uniform Civil Procedure Rules 1999 (“UCPR”) which is produced below for convenience sake:

“389 CONTINUATION OF PROCEEDING AFTER DELAY 

(1)       If no step has been taken in a proceeding for 1 year from the time the last step was taken, a party who wants to proceed must, before taking any step in the proceeding, give a month’s notice to every other party of the party’s intention to proceed. 

(2)       If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice. 

(3)       For this rule, an application in which no order has been made is not taken to be a step.”

This case involved the local solicitors, Legend Legal and Cronin Litigation, as well as local Counsel, Mr Radcliff and local solicitor, Ms Miller of Cronin Litigation.

The Court of Appeal was comprised of Appeal Justices Morrison and Philippides. However the Court’s Judgment was written by Justice Brown of the Trial Division.

Proceedings were issued in November 2013 but no step was taken in the proceedings after 17 September 2014.  About 25 August 2016, after a change in solicitors, the Appellants issued a Notice of Intention to Proceed under Rule 389(1) of the UCPR but no step was taken until 9 months after the provision of the Notice.

The Appellants applied before Judge Muir for leave to proceed submitting they did not have to seek such leave which submission was rejected by the primary Judge.

Justice Brown indicated that point involved a construction of Rule 389(2) of the UCPR 1999.

The Appeal also concerned the exercise of discretion in relation to whether or not leave to proceed should be granted.

At first instance, Judge Muir dismissed the proceedings as a result of her findings which were overturned on Appeal as were certain of Her Honour’s Orders and an Order was made granting the Appellant’s leave to appeal and leave to take a further step in the proceeding.

The case involves a review of the relevant principles relating to granting leave to proceed with emphasis placed on delay, prospects of success and prejudice.

Justice Brown followed the decision in Tyler v Custom Credit Corporation Ltd & Ors [2000] QCA 178.

It is recommended that all civil practitioners and others with an academic interest in the law consider this recent authority whichever was handed down on 31 August 2018.

Michael Campbell

Barrister-at-Law

2019-03-19T02:39:52+00:00