William Doolan v Hugh William Blennerhassett [2025] QSC 208

Robinson Locke Litigation Lawyers for the applicants

• [1] The applicants seek leave to take a new step because a step has not been taken in this proceeding for more than two years. They wish to pursue an order for costs against Mr Blennerhassett. He seeks an order that the proceeding be dismissed for want of prosecution.
• [2] The two-year limit is found in r 389(2) of the Uniform Civil Procedure Rules 1999. It provides:

"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 the reasons which follow, I will grant leave to proceed. It follows, then, that the application for dismissal must be dismissed.

• [4] In both applications it is necessary to determine when the last step was taken in the proceedings as delay is a matter which should be taken into account.
• [5] The meaning of "step" was considered by McMurdo P in Artahs Pty Ltd v Gall Standfield & Smith[1] where her Honour said:

"[3] The expression "step" is not defined in the UCPR. Its ordinary meaning in this context is: "a move or proceeding, as towards some end or in the general course of action: the first step towards peace". Whether a step has been taken in a particular proceeding will turn on the pertinent circumstances in that case. It is clear from the authorities discussed by Peter Lyons J that, to be a step under r 389 it must, consistent with that word's ordinary meaning, progress the action towards a conclusion. I agree with Peter Lyons J that it is not necessary the step be something required by the UCPR. For example, the filing and service of a reply or a subsequent pleading would usually amount to a step in the action." (emphasis added, citations omitted)

• [6] The proceeding commenced in November 2020. In the statement of claim (April 2021) the applicants sought orders:

(a) restraining Mr Blennerhassett from selling a property at Crestmead, and

(b) removing Mr Blennerhassett as trustee of the Doolan Trust.

• [7] The Crestmead property was sold in June 2021.
• [8] In October 2021 the applicants filed an amended statement of claim in which the only substantive relief sought was the removal of Mr Blennerhassett as trustee of the Doolan Trust.
• [9] In May and June 2022, a mediation was conducted - it did not result in a settlement.
• [10] In September 2022, Mr Blennerhassett resigned as trustee of the Doolan Trust.
• [11] In November 2022 the applicants wrote to Mr Blennerhassett foreshadowing an application for costs on the basis that the respondent had acceded to the relief sought by them.
• [12] In May 2024 the applicants wrote to Mr Blennerhassett and gave notice of their intention to take a step in the proceeding pursuant to r 389(1) UCPR.
• [13] In July 2024 the applicants instructed their solicitors to bring an application for costs. Counsel was engaged to prepare and settle the application, but no settled documents were forthcoming notwithstanding correspondence between the applicants' solicitor and the barrister. In March 2025, a new barrister was instructed. Settled documents were provided by the new barrister in May 2025.
• [14] The applicants submitted, and the respondent did not contest, that the last step in the proceeding was the resignation by Mr Blennerhassett as trustee, that being a step which progressed the action to a conclusion. In the circumstances of this case, where his removal was sought and his resignation exhausted the substantive relief sought, I regard the resignation as a step in the proceeding.

The proper approach on this type of application

1. In Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd[2] Chesterman J adopted the words of Connolly J in Dempsey v Dorber[3] where his Honour said:

"... the proper approach ... is to identify the relevant factors, assess the weight to be given in the circumstances of the case to each of them, and then to determine whether, on balance, there is good reason for making the order."

"Whether there is a satisfactory explanation for the delay in the prosecution of the action and whether the defendant will suffer prejudice if the action proceeds are always relevant factors. The discretion conferred to r 389 is one to allow an action to proceed despite the general prohibition against an action continuing in which no step has been taken for three years[4]. The applicant must satisfy the court that grounds exist for exercising the discretion in its favour. There is an evidentiary onus on the defendant to raise any consideration telling against the exercise of the discretion but the ultimate onus of satisfying the court that the action should be allowed to proceed remains on the applicant: see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547 per Toohey and Gummow JJ."

• [17] In Tyler v Custom Credit Corp Ltd[5] Atkinson J (with whom McMurdo P and McPherson JA agreed) said:

"[2] When the Court is considering whether or not to dismiss an action for want of prosecution or whether to give leave to proceed under Uniform Civil Procedure Rules ("UCPR") r 389, there are a number of factors that the Court will take into account in determining whether the interests of justice require a case to be dismissed. These include:

(1) how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;

(2) how long ago the litigation was commenced or causes of action were added;

(3) what prospects the plaintiff has of success in the action;

(4) whether or not there has been disobedience of Court orders or directions;

(5) whether or not the litigation has been characterised by periods of delay;

(6) whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;

(7) whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff's impecuniosity;

(8) whether the litigation between the parties would be concluded by the striking out of the plaintiff's claim;

(10) whether or not the delay has been caused by the plaintiff's lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;

(11) whether there is a satisfactory explanation for the delay; and

(12) whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.

The court's discretion is, however, not fettered by rigid rules but should take into account all of the relevant circumstances of the particular case including the consideration that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them." (citations omitted)

• [18] That list of factors has been applied in many cases since that decision and was the basis upon which the parties proceeded before me.

Delay - when did the alleged events occur/when was litigation commenced?

• [19] The relevant events occurred mainly in 2020 which is when the proceedings were started. There was no delay in commencing proceedings.

Delay - have the proceedings been characterised by delay or disobedience of court orders?

• [20] The only delay is the nearly three years since Mr Blennerhassett resigned as trustee. There has been no disobedience of court orders.

Delay - is it attributable to the applicants or the respondent?

• [21] Unsurprisingly, Mr Blennerhassett ascribes all blame to the applicants. Mr Doolan relies upon three matters.
• [22] First, that he was required to spend a lot of time and money dealing with the consequences of the Mr Blennerhassett's resignation, including the appointment of a new trustee. This, he says took him 18 months to resolve. His evidence on this point is vague, lacking in detail and unconvincing.
• [23] Secondly, he says that he hesitated in bringing this application because of a threat made by Mr Blennerhassett. On 11 June 2024 Mr Blennerhassett sent an email to Mr Doolan's solicitor in which he stated his views about, among other things, what had been done at the mediation. The matter which can properly be described as a threat was in the last part of the email:

"You [sic] client's actions over many years (including operating shadow directorships to avoid scrutiny from the Child Support Agency & marital property considerations), are what has led to his current situation. The time has arrived for him to look inward for solutions rather than continuing to place blame where it does not exist.

Your client has caused me immense financial, family, mental, emotional and physical stress. I have relinquished my equity in both business & property assets to be rid of him. I have nothing more to give. I have nothing further to lose.

I am drafting a comprehensive letter to the Child Support Agency setting out full details of business structures and relationships between individuals, companies, trusts, trustees and beneficiaries and providing financial details.

I will complete and send this letter to the CSA and Alexandra's lawyers should I be served with any further application."

• [24] Thirdly, Mr Doolan instructed his solicitors, who then instructed counsel, to prepare an application for a costs order. Instructions were given at a time when leave would not have been needed to take a step. He says the delay is attributable solely to his legal representative and he should not be disadvantaged by that.

Would the litigation be concluded by striking it out?

• [26] There is nothing left but the question of costs. The applicant, through his counsel, confirmed that the only purpose of the application is to allow him to make an application under r 685. It provides:

"(1) If, for any reason, it becomes unnecessary to continue a proceeding other than for deciding who is to pay the costs of the proceeding, any party to the proceeding may apply to the court for an order for the costs.

(2) The court may make the order the court considers just."

• [27] Mr Doolan argues that this case is squarely within the type referred to by Burchett J in ONE.TEL Ltd v Commissioner of Taxation[6] where his Honour said:

"[6] In my opinion, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs. In the former type of case, there will commonly be lacking any basis for an exercise of the court's discretion otherwise than by an award of costs to the successful party."

• [28] Mr Blennerhassett argues that there will need to be evidence about the reasonableness of the conduct of the parties. This was considered by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin[7] where his Honour said:

"In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd, the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent Council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans.

Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80% of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare.

If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases." (citations omitted)

• [29] These are matters which may well need to be considered on any application for costs. At this stage of proceedings, though, it is not possible to do more than form a preliminary view about prospects. In a case where a defendant has, in effect, conceded the case made against it then, without more, a plaintiff has prospects of success.
• [30] Mr Blennerhassett argued that the prospects of the second applicant were poor. I was referred to a decision of the Court of Appeal[8] where some of the issues concerning Allied Rural were considered. If Allied Rural were the only applicant, then those considerations would have more weight.

• [31] Mr Blennerhassett expressed concern that as a result of various actions which have occurred he has lost access to his emails and he has highlighted the potential for them to have been lost or deleted. The cause of that was the appointment of Mr Stimpson as the voluntary administrator of an associated company. That appointment took place about three months after these proceedings commenced but before Mr Blennerhassett resigned as trustee. Any prejudice occurred at that point and, as Mr Stimpson was appointed by Mr Blennerhassett, he initiated the problem he now says he faces. It might have been a compelling point if this was a case in which primary relief was still sought. But, as the authorities referred to above demonstrate, if there is to be a dispute it will be about reasonableness of conduct and I am not satisfied that Mr Blennerhassett's claimed inability to access his emails would be of such importance that he would be prejudiced.
• [32] Mr Blennerhassett is, of course, an ordinary member of the community who is entitled to get on with his life. The delay in this case is not extreme and the prejudice to Mr Doolan not being able to seek his costs must also be considered.

• [33] The delay has been caused by a combination of factors. I have dealt with them above. The "threat" made by Mr Blennerhassett is an unusual factor in an application of this kind but I accept that it would cause anybody to, at least, withdraw from the field of battle for some time. That, together with the tardiness of the former lawyers, constitutes a satisfactory explanation for the delay.
• [34] Upon considering all of the matters referred to above, I am satisfied that the applicants should have leave to proceed. It follows that the application by Mr Blennerhassett must be dismissed.
• [35] I will hear the parties on costs.

• [36] That the applicants have leave to proceed.
• [37] That the application of the respondent filed 17 July 2025 is dismissed.

[1] [2012] QCA 272; [2013] 2 Qd R 202.

[2] [1999] QSC 372 at [2].

1. [3] [1990] 1 Qd R 418 at 420.

[4] Rule 389(4), which has been deleted, originally provided that: "(4) Until the end of 30 June 2000, subrule (2) applies as if the reference to 2 years were a reference to 3 years."

[5] [2000] QCA 178.

[6] [2000] FCA 270; (2000) 101 FCR 548.

[7] [1997] HCA 6; (1997) 186 CLR 622.

[8] Allied Rural Pty Ltd v Stimpson [2023] QCA 77.