Deathridge v McNaught [2019] QDC 165

[4] The plaintiff disputes the defendant's submission that no step has been taken since that time, maintaining that the parties' attendance at an unsuccessful settlement conference on the 17th of January 2017, pursuant to an order made by the Magistrates Court on the 17th of October 2016, was a step in the action. It is necessary to explain something of that conference and of the order of the 17th of October.

[5] The Magistrates Court practice direction number 16 of 2010, provides, relevantly:

(a) is intended to signal the court's intention to ensure that civil litigation is conducted in a manner consistent with the philosophy of the uniform civil procedure rules 1999, as set out in rule 5, namely, "to facilitate the just and expeditious resolution of the real issues in civil proceedings, at a minimum of expense..."

1. Legal representatives of parties and unrepresented parties prior to requesting a trial date, are encouraged to engage in one or more of the following:

(a) negotiations in a genuine attempt to resolve disputes (settlement negotiations); or

(b) alternative dispute resolution (ADR) using (where available) the services of the Dispute Resolution Centre or other services that may be available in a location convenient to the parties and which involves no or minimum costs to the parties; or

(c) any other ADR processes that the parties may consider appropriate.

1. In completing a Form 48 (Request for Trial Date), legal representatives and unrepresented parties must:

(a) indicate whether they have engaged in ADR or settlement negotiations, stating which...

1. Where the estimated length of trial is two days or more, the matter will be referred to a Magistrate who may refer the parties to ADR, whether or not there have been previous attempts at resolution (UCPR Rule 319).

1. Where the estimated length of trial is less than two days, a registrar may refer the matter to a Magistrate for consideration for a referral for an ADR process.

1. Under Rule 319, parties may object to a referral to an ADR process.

1. Whether or not the parties have engaged in an ADR process, either voluntarily or pursuant to a referral under Rule 319, where the matter has not resolved, parties will ordinarily be directed to attend a Directions Conference to be conducted under Rule 523 before a trial date will be allocated.

1. This Practice Direction does not preclude a Registrar, at any time, referring a matter to a Magistrate with a view to a Directions Conference being conducted prior to a request for trial date being filed."

[6] It is common ground that on the 12th of October 2016 the plaintiff requested the registrar to refer the matter to a Magistrate for him or her to order a settlement conference and that on the subsequent registrar's application of the 17th of October 2016, the learned Magistrate, sitting at the Pine River's Magistrates Court, directed a settlement conference to take place in November 2016.

[7] The parties subsequently agreed to adjourn that conference to the 17th of January 2017 to meet the convenience of the defendant who was overseas serving with the ADF.

[8] The parties subsequently attended the conference on that date, but the matter did not resolve.

[9] Little was done for some time thereafter. Despite the terms of paragraph 7 of the practice direction, no directions conference was convened. No trial date was sought. On the 9th of January 2018, the defendant delivered to the plaintiff's solicitors, a draft Amended Claim and Further Amended Statement of Claim and sought the defendant's consent to filing those documents. Why the solicitors did so and simply did not file the documents, or seek to do so, is unknown to me.

[10] Having regard to the rules, it does not appear that the applicant's consent was required, a point conceded on this appeal by counsel for the defendant, or that leave was required having regard to when the last step in the proceedings was taken, whether it be July 2016, as the defendant asserts, or 17 January 2017 as the plaintiff asserts. A notice pursuant to rule 489(1) UCPR would have been required if the last step was July 2016.

[11] In response the defendant's solicitor asked the plaintiff's solicitor to clarify what the defendant was being asked to consent to. Nothing then appears to have been done by the plaintiff until the filing of an application for leave to amend the Claim and the Statement of Claim on the 10th of September 2018. Upon receipt of that application the defendant served a rule 444 letter asserting that the plaintiff had failed to prosecute its claim. Subsequently on the 24th of September 2018, it filed a cross application to strike out the claim under rule 271 for want of prosecution. Ultimately that application was not proceeded with in circumstances where the Magistrate made the orders sought in the plaintiff's application. The application was heard by the learned Magistrate on the 26th of October 2018. His Honour ordered:

1. The plaintiff have leave to file and amend a Claim and Statement of Claim.

2. The defendant pay the plaintiff's costs of an incidental to the application to be agreed or otherwise assessed.

[12] It was submitted by counsel for the defendant that the Magistrate misconstrued rule 389 UCPR which 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.

(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.

[13] Counsel submitted that the learned Magistrate was "quite distracted" by what was said to be "a local rule of custom in the Pine River Magistrates Court" that a matter would only be given a trial date if there had been a settlement conference. (See T1-14L10/20 in the proceedings below,) at least where the court had required such a conference (see below T1-17L23-27 and also T1-19L33/42 and T1-22L44/1-23L3 referring to rule 523 UCPR).

[14] I note that rule is contained in division 3 of part 9 of chapter 13 of the rules, dealing specifically with Magistrates Court matters, and empowers the court at any time after a Notice of Intention to Defend and Defence is filed to direct that a settlement conference be held.

[15] The question that arises is whether in that light the parties' attendance and participation in a settlement conference, without resolving the matter, is a step in the proceedings as the plaintiff asserts.

[16] The defendant's argument to the contrary is:

1. That the practice at the Pine Rivers Magistrates Court cannot overrule the effect of the Uniform Civil Procedure Rules;

2. An order to conduct a conference is not a step, relying in support of that contention on observations of his Honour Judge Kent QC DCJ in Kreyzig v QBE Insurance (Aust) Ltd [2018] QDC 70 and the decisions in Artahs Pty Ltd v Gall Stanfield and Smith (a firm) [2011] QSC 273; [2012] QCA 272.

[17] Somewhat curiously, counsel for the defendant also submitted that the terms of sub-rule 3 of rule 389 UCPR, set out above, "supported the argument that attending the conference ordered by the court was not a step because no order resolving the matter resulted from that conference". This argument overlooks, in my view, the purpose and nature of orders under rule 523 UCPR for the parties to attend a settlement conference - namely, seeking to advance the expeditious resolution of claims by ADR Participation.

[18] It is necessary, also, to consider the cases relied on by counsel for the defendant. In Artahs Pty Ltd v Gall Stanfield and Smith (a firm) (supra) the court was concerned with a negligence action against solicitors. A trial division judge had made an order, prepared with the consent of the parties but initiated by case flow management intervention notice. A question which arose was whether that "order" was a step in the proceeding for the purposes of rule 389 UCPR. The order required the parties to file further pleadings, complete disclosure and file a request for trial date by a particular date in default of which, the matter would be deemed resolved.

[19] McMurdo P, with whom Fraser JA agreed, noted that "step" was not a defined term, but meant a "move or proceeding as towards some end" and whether a step had been taken in a particular proceeding would depend on pertinent circumstances. A step was said to be an action which "progresses the action towards a conclusion" and is not necessarily something required by the rules.

[20] At [4] of her Honour's reasons, the President said:

"[I]t is true that it came about because of an arrangement between the parties with the purpose of advancing the case. As Peter Lyons J explains, the order for disclosure was made only because the parties told the judge they wanted it. It was therefore analogous to an oral application for such disclosure with a view to advancing the litigation. But I am unable to accept that the resulting order, initiated by a case flow management intervention notice and then not met, can amount to a step in the proceeding under r 389. That is because in this case the order itself did not progress the action towards finalisation, even though subsequent compliance with the order would have progressed the action."

[21] In my view, in the circumstance of that case the critical matter was that the order did not progress the matter because it was not complied with. That is vastly different from the parties' participation in an ordered settlement conference, as here occurred, but which ultimately did not resolve the claim.

[22] In Artah's case, the order, which was said not to be a step, was a hollow order in the sense it was not complied with.

[23] So too in Kreyzig a mediation took place in April 2015 but was adjourned for further disclosure. It was not resumed. When it became clear it would not be, the mediator's certificate was filed.

[24] A submission that the mediator's certificate was a step was rejected on an application for a declaration that it was such a step.

[25] Before me, counsel for the defendant relied on observations of Kent QC DCJ, that a settlement conference, or mediation under rule 553 UCPR in a personal injury action, was a permissive and not a mandatory scheme under which a party "may" give a party notice requiring such a conference. As his Honour said, the "scheme does not make a conference mandatory in the sense that it's authorised, ordered or obligatory".

[26] By contrast, in this case, the court ordered pursuit to rule 523 UCPR that the parties attend a conference, making attendance mandatory. The critical fact is that the parties did then attend and participated in the ordered conference, even though it did not resolve the claim. By reason of rule 467(4)(d) and (f) UCPR, participation in the conference in compliance with the court's orders was a gateway for a party certifying, when requesting a trial date, that "as far as the party is concerned, all necessary steps in the proceedings" have been completed and "as far as the party is concerned, the proceeding is in all respects ready for trial".

[27] I note also that at [9] and [23] of his Honour's reasoning in Kreyzig, his Honour referred to a decision of Russell v Mihaljevic and Anor (Full Court, 24 June 1982, unreported). His Honour said at [9] of his reasons, "the plaintiff refers to Citicorp Australia Limited v Metropolitan Public Abattoir Board [1992] 1 QDR 592, 594. McPherson SPJ said:

"It may I think be accepted that to constitute a "proceeding" the act or activity must have the characteristic of carrying the cause or action forward. It may, as Stable J describes it in Kaats v Caelers (1966) Qd R 482, 489, be 'some step taken toward the judgment or relief sought in the action'; or 'taken with a view to continuing the litigation between the parties to it': Spencer v Watts (1889) 23 Ch. d. 350, 358 per Lindley L.J. The word 'is one that suggests something in the nature of a formal step in the prosecution of an action...': See Mundy v Butterly Co (1932) 102 L.J.Ch. 23, 26. It need not be a step taken or act done in a court or its registry. Holding a compulsory conference...constitutes a proceeding...see Russell v Mihaljevic & anor (Full Court, 24 June 1982, unreported)..."

[28] So too, I think, in Russell's case, Justice Kelly, or Kelly J said at page 4 of His Honour's reasons:

"The term was considered as meaning some step taken towards the judgment or relief sought in the action or a step taken in the prosecution of the action, being a step required by the rules. The holding of the compulsory conference provided by 0. 39 r.30A(4)(e), which is a condition precedent to the signing of the certificate of readiness, would be a step which would satisfy either of the tests thus propounded and so would be a "proceeding". I would also think that the tender of the signed certificate of readiness pursuant to O. 39 r.30A(5) would likewise be such a step and so would constitute a "proceeding" for the purposes of O. 90 r. 9. There would seem to be no reason why the compulsory conference should not be conducted by means of the telephone rather than by the participants meeting face to face, so that there was a "proceeding" on 19 September 1977 by the holding of the conference..."

[29] His Honour Judge Kent QC DCJ also noted in Kreyzig at [23] of his reasons that the mediated conference in Russell "progressed the action towards finalisation" even though, self-evidently, it did not resolve the claim.

[30] In my view nothing his Honour said gainsays the fact that participation in a conference ordered by the court, with the result that attendance was mandated and a necessary pre-requisite to executing a request for trial date, having regard the provisions of rule 467 UCPR, must be seen as a step in the action. Having determined that such a conference was a step in the action, it follows that subject to one final matter, the appeal should be dismissed.

[31] It was also contended on behalf of the defendant that the plaintiff had failed to give a notice required by rule 381(1) UCPR in circumstances where, on the plaintiff's own case, no step had been taken between 17 January 2017, when the ordered conference took place and the application of September 2018.

[32] Failure to comply with the requirement of that rule is, of course, an irregularity which may be waived by the defendant. In this case the plaintiff, contrary to the rule, sought leave to amend the Claim and Statement of Claim, without giving a Notice of Intention to Proceed. The learned Magistrate made the orders sought. The application was opposed, but on the basis that more than two years had lapsed, so that leave under rule 389(2) UCPR was required, a view that I have found to be flawed, as did the learned Magistrate. The defendant, it seems to me, did not object to the failure of the plaintiff to give Notice of Intention to Proceed under rule 389(1) UCPR. Rather, it contested the matter in the way I have indicated. In doing so it is in my view that the defendant waived the irregularity which would arise if the Magistrate determined, as he did, correctly in my view, that the conference of January 2017 was a step in the action.

[33] In the circumstances the appeal is dismissed.

[34] I will order that the appellant pay the respondent's costs of, and incidental to the appeal provided, however that the respondent recover no costs associated with the preparation of the second outline of argument filed by leave this morning.