Continuation of Proceedings After a Delay

Commencing litigation is often the final step taken by a creditor when seeking the repayment of a debt. The Uniform Civil Procedure Rules 1999 (Qld) (the Rules) provides time frames which litigators must adhere to in court proceedings.

Once a claim has been served or judgment entered, a plaintiff must take steps in a timely manner. Rule 389(1) of the Rules stipulates that if a step has not been taken on the matter for 12 months, the party seeking to either proceed to judgment or enforce a judgment must provide written correspondence to the other side advising them of:

1. the plaintiff or defendant’s intention to proceed; and
2. the time frame to rectify the matter, being 1 month from the date of issuance, prior to further steps being taken against them.

If the delay is for more than 2 years, Rule 389(2) of the Rules specifies that the party seeking to proceed must seek the leave of the Court prior to doing so, but that such an application can be made with or without notice to the other side.

Generally, the court does not grant such applications lightly and considers that the actioning of court proceedings in a timely manner is in the best interests of the court (so matters are not unresolved for unnecessary periods of time) and in the best interests of the parties (as the general public have a right to not endure the constant threat of litigation).

Rule 5 of the Rules requires that all litigants expeditiously resolve real issues in civil proceedings at a minimum of expense. This should be the paramount consideration for all parties when taking steps in a proceeding.

The matter of Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 sets out a number of factors which can be relied upon by the courts when deciding on such applications, such as:

1. whether the delays can be attributed to the plaintiff’s lack of actioning, or whether the defendant is responsible for the delays;
2. the date the cause of action commenced (and whether such an action is now statute-barred);
3. whether the litigation has been characterised by ongoing periods of delay; and
4. if the delay results in prejudice to the defendant (and whether that prejudice has been self-inflicted).

The factors above are not rigid and the court’s discretion can be liberally applied by taking into account all relevant circumstances of the particular case.

If you have a query in relation to re-commencing proceedings, the RCR Recovery team is familiar with the relevant processes to ensure that litigation matters in all Australian jurisdictions, proceed in accordance with the appropriate legislation (either from first instance or after a delay).

If you have any queries in relation to the above, please contact the RCR Recovery Team on 07 3009 8444.

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