Background

His Honour Judge Farr SC in the matter of Smith v Yu Feng Pty Ltd and Anor1 had to decide when is a step a step.

The Applicant, Leanne Smith, was injured in an accident that occurred on 14 July 2004 at the Australia Fair Shopping Centre.

A PIPA Part 1 Notice of Claim Form was given to the Defendants on 29 November 2005. Some 16 months after the accident.

The PIPA Part 2 Notice of Claim Form was given to the Defendants on 21 July 2006, two years after the accident. The Compulsory Conference was held on 4 December 2007 almost three and a half years after the accident. The explanation for it not occurring within the three year limitation period is not given.

Proceedings were commenced on 11 January 2008 with the Defendants filing a Defence on 25 February 2008.

The Defence was amended on 16 May 2008 and the Plaintiff served a Statement of Loss and Damage document on 21 May 2008.

The Plaintiff provided certain disclosure throughout the conduct of the matter in 2008, 2009 and 2011 before filing the Application on 1 June 2012.

The disclosure included provision of a Medicare claims history statement, a witness statement, Centrelink documents, MBF Australia documentation and Taxation records.

The law

His Honour Farr followed the decision of Judge Brabazon QC in the matter of Lowndes v Delaney and Anor2 where at paragraph 10 Judge Brabazon said

“(a) The act or activity must have the characteristic of carrying the cause or action forward … be some step taken towards the judgment or relief sought in the action or “taken with a view to continuing litigation between the parties to it. A “proceeding” suggests something in the nature of a formal step in the prosecution of an action. It need not be a step taken or act done in a court or its registry.” (Citicorp Australia Limited v Metropolitan Public Abattoir Board [1992] 1 Qld R 592 at 594) – Court of Appeal.

(b) Production of documents for inspection is a step in the action. Providing copies of discovered documents is a further and convenient modern refinement of the discovery process (Citicorp at 595).

….

(e) Delivery of a list of documents, or a supplementary list of documents, is a step in the proceeding. See Paradise Grove Pty Ltd v Stubberfield [2000] QSC 214, and Concord Park Pty Ltd v Allied Organik Ltd [2003] QDC 420 at para [6], and Kanyilmaz v Nominal Defendant, Supreme Court of Queensland, Muir J, BC200004661 (12 January 2000).”

His Honour Judge Farr concluded that providing documents to the Defendant was a step in the proceeding.

The failure by the Applicant/Plaintiff

The Plaintiff did not comply with the obligations under Rule 389 (1) of the Uniform Civil Procedure Rules (“UCPR”) where it provides:

“(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.”

To that end, the failure by the Applicant/Plaintiff in giving a Notice pursuant to Rule 389 (1) of the UCPR when giving the records on 12 July 2011, was more than 12 months after the last step in the proceeding on 19 May 2010. That is, the Applicant/Plaintiff should have given notice pursuant to Rule 389 (1) of the UCPR. Therefore, failure to comply with the Rules was an irregularity by 371 (1) of the UCPR. However, His Honour noted that the Defendant did not take this irregularity as a serious concern given that it was only seven weeks out of the 12 month time frame. That is, they did not bring an Application or raise issue with the Applicant/Plaintiff after the step was purportedly undertaken.

To that end, His Honour followed Judge Brabazon QC at paragraph 27 of Lowndes v Delaney and Anor said the following:

“… non compliance with a Rule of Court does not make the offending step void. Rather, it is to be regarded as irregular, to be dealt with as the Court in its discretion sees fit.”

Conclusion

Although the Applicant/Plaintiff was ordered to pay the Defendant’s costs of the Application, it does show the importance of having regular bring ups to ensure a step is taken in the action to avoid non compliance with Rule 389 of the UCPR.

For those Defendant Insurers, it is important to monitor the steps undertaken by the Plaintiffs in litigated claims to ensure there is compliance with Rule 389 of the UCPR. If there is non compliance then that irregularity should be brought