Drane v Barolin Tower Pty Ltd & Ors [2020] QDC 275

DISTRICT COURT OF QUEENSLAND CITATION: Drane v Barolin Tower Pty Ltd & Ors [2020] QDC 275 PARTIES: MATTHEW NEVILLE DRANE (plaintiff) v BAROLIN TOWER PTY LTD ACN 097 673 508 (first defendant) and OTIS ELEVATOR COMPANY PTY LTD ACN 002 873 065 (second defendant) and SYLVAN DEVELOPMENTS PTY LTD TRADING AS CORAL COAST REALTY ACN 071 859 982 (third defendant) and RANECORP PTY LTD TRADING AS CBD REALTY ACN 127 623 125 (fourth defendant) FILE NO: BD 1688 of 2016 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court DELIVERED ON: 2 November 2020 DELIVERED AT: Brisbane HEARING DATE: 5 August 2020 JUDGE: Rinaudo AM DCJ ORDER: Application allowed CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – DORMANT PROCEEDINGS – GENERALLY – where the plaintiff commenced a claim seeking damages for personal injuries in May 2016 – where there has been no step taken in the proceedings since December 2016 – where the plaintiff makes application to take a step in the proceeding pursuant to r 389 of the Uniform Civil Procedure Rules 1999 (Qld) – where – the delay is solely attributable to the plaintiff’s solicitors and barrister rather than the plaintiff – where the circumstances replied upon by the plaintiff satisfy the non-exhaustive list of -- 1 of 17 -- 2 factors in Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178. LEGISLATION: Personal Injuries Proceedings Act 2002 (Qld) Uniform Civil Procedure Rules 1999 (Qld) CASES: Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Dempsey v Dorber [1990] 1 Qd R 418 Hoy & McCormack v Honan & Anor [1997] QCA 250 Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Limited (1999) QSC 372 Smiley v Watson [2002] 1 Qd R 560 The President‘s Club Limited & Anor v Palmer Coolum Resort Pty Ltd & Anor [2019] QSC 209 Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 Quinlan v Rothwell [2002] 1 Qd R 647 Wilson v Bynon [1984] 2 Qd R 83 COUNSEL: JP Kimmins for the plaintiff AG Rae for the first, second and third defendants BJ Heath for the fourth defendant SOLICITORS: Shine Lawyers for the plaintiff Clyde & Co for the first defendant King & Wood Mallesons for the second defendant Finemore Walters & Story for the third defendant Carter Newell for the fourth defendant [1] The plaintiff makes application for leave to take a step in the proceedings pursuant to r 389(2) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). History [2] The following chronology of events is set out in the affidavit of Kylie Carson (solicitor for the plaintiff) filed 4 Aug 2020:1 Date Party Action 11 Mar 2012 Plaintiff Personal injuries alleged to have been suffered.2 7 Aug 2012 Plaintiff The plaintiff’s previous solicitors (Trilby Misso Lawyers) executed and delivered a Part 1 Notice of Claim (“Notice”) on the first defendant.3 1 Court document 33. 2 Court document 32. 3 Court document 33. -- 2 of 17 -- 2 18 Sept 2012 First defendant Insurer for the first defendant acknowledge receipt of the Notice.4 17 May 2013 Plaintiff Shine Lawyers received instructions to act on behalf of the plaintiff.5 16 Oct 2013 Plaintiff Report produced by Neurologist, Dr Don Todman, after plaintiff examined at behest of Shine Lawyers.6 5 Feb 2014 Plaintiff Executed further Part 1 Notices’ of Claim.7 13 Feb 2014 Plaintiff Served the Part 1 Notices’ of Claim on the second, third and fourth defendant.8 2 Oct 2014 Plaintiff Medicolegal examination conducted and report produced by Consultant Psychiatrist, Dr Chris Cantor at the behest of Shine Lawyers.9 3 Jun 2015 Fourth defendant Medicolegal examination conducted and report produced by Orthopaedic Surgeon, Dr Peter Boys at the behest of Carter Newell Lawyers.10 4 Aug 2015 Fourth defendant Medicolegal examination conducted and report produced by Dr Harvey Whiteford at the behest of Carter Newell Lawyers.11 16 Feb 2016 Plaintiff Statement of Loss and Damage and List of Documents provided to the defendant.12 8 Mar 2016 All Compulsory Conference.13 6 May 2016 Plaintiff Claim and Statement of Claim filed in Brisbane Registry of Queensland District Court.14 9 May 2016 Plaintiff Claim and Statement of Claim served.15 Requested disclosure be made within 28 days after the close of pleadings.16 4 Court document 33. 5 Court document 32. 6 Court document 32. 7 Court document 33. 8 Court document 33. 9 Court document 32. 10 Court document 32. 11 Court document 32. 12 Court document 32. 13 Court document 32. 14 Court document 1. 15 Court document 32. 16 Court document 32. -- 3 of 17 -- 3 9 Jun 2016 First defendant Notice of Intention to Defend and Defence filed.17 14 Jun 2016 Third defendant Notice of Intention to Defend and Defence filed.18 21 Jun 2016 Second defendant Notice of Intention to Defend and Defence filed.19 23 Aug 2016 Plaintiff Application to file an Amended Claim and Statement of Claim filed.20 9 Sept 2016 Plaintiff Amended Claim and Statement of Claim filed.21 20 Sept 2016 Fourth defendant Notice of Intention to Defend and Defence filed.22 28 Sept 2016 First defendant Amended Third Party Notices filed.23 12 Oct 2016 Plaintiff Reply filed to the Defences of the first, second, third and fourth defendants.24 6 Dec 2016 Second defendant Notices Claiming Contribution from first, third and fourth defendants filed.25 17 Mar 2017 Fourth defendant Formal offer to settle.26 22 Mar 2017 First defendant Request sent to plaintiff for the plaintiff’s List of Documents.27 24 Mar 2017 First defendant Request sent to second defendant for second defendant’s List of Documents and disclosure of all relevant maintenance and repair records for the subject lift.28 22 Jun 2017 Plaintiff Shine Lawyers signed a List of Documents. The solicitors are unable to determine whether such document was served on the defendants.29 20 Oct 2017 First defendant Notices of Non Party Disclosure filed.30 17 Court document 2. 18 Court document 3. 19 Court document 4. 20 Court document 7. 21 Court document 11. 22 Court document 12. 23 Court documents 15 and 16. 24 Court documents 17 – 20. 25 Court documents 24 – 26. 26 Court document 32, [22]. 27 Court document 32, [23]. 28 Court document 32, [24]. 29 Court document 32, [25]. 30 Court documents 27 – 30. -- 4 of 17 -- 4 25 Oct 2017 Second defendant Notice of Non Party Disclosure delivered on Aberdovy Clinic. Clinic requested to deliver their records directly to Shine Lawyers.31 10 Nov 2017 Plaintiff Records from Aberdovy Clinic received by Shine Lawyers.32 17 Dec 2017 Plaintiff Michael Eliadis of Counsel briefed to provide an advice regarding the proceedings.33 21 Dec 2017 Plaintiff Confirmation of receipt of brief received.34 12 Feb 2018 Plaintiff Plaintiff wrote to Shine Lawyers requesting an update on the progression of his claim. No response provided to the plaintiff by Shine Lawyers.35 20 Feb 2018 Second defendant Advised Shine Lawyers Notices of Non Party Disclosure had been issued and requested documents produced be forwarded to them.36 14 Mar 2018 Plaintiff Plaintiff wrote to Shine Lawyers requesting an update on the progression of his claim. 19 Mar 2018 Plaintiff Shine Lawyers contacted plaintiff by telephone to arrange a meeting for 26 Mar 2018. Shine Lawyers telephoned Michael Eliadis’ chambers to follow up provision of the outstanding advice. 28 Mar 2018 Plaintiff Shine Lawyers requested provision of various financial records from the plaintiff. 14 Aug 2018 Second defendant Correspondence sent to Shine Lawyers regarding lack of progress in relation to the claim and giving notice of an application to strike out the plaintiff’s claim.37 10 Sept 2018 Plaintiff Correspondence sent to each defendant’s solicitors giving one month’s notice of intention to proceed 31 Court document 33. 32 Court document 33. 33 Court document 32, [27]. 34 Court document 32, [27]. 35 Court document 32, [28]. 36 Court document 32, [29]. 37 Court document 32, [34]. -- 5 of 17 -- 5 and advising a draft timetable for progression of the claim would be circulated.38 22 Oct 2018 Second defendant Correspondence sent to Shine Lawyers noting a proposed timetable was yet to be received.39 9 Jan 2019 Plaintiff Plaintiff wrote to Shine Lawyers requesting an update on the progression of his claim. No response provided to the plaintiff by Shine Lawyers.40 22 Jan 2019 Second defendant Correspondence sent to Shine Lawyers noting further 3 months had past and proposed timetable yet to be received.41 6 Mar 2019 Plaintiff Plaintiff telephoned Shine Lawyers to obtain an update on the progression of his claim. A message was left with the solicitor with conduct of the matter to return his call. No response provided to the plaintiff.42 7 Jul 2019 Plaintiff Shine Lawyers telephoned Michael Eliadis’ chambers following up the outstanding advice. They were advised he was away until 22 Jul 2019.43 9 Jul 2019 Second defendant Correspondence to Shine Lawyers noting further ten months past and proposed timetable yet to be received and giving notice of an application to strike out the plaintiff’s claim.44 22 Jul 2019 Plaintiff Plaintiff wrote to Shine Lawyers regarding lack of contact and requesting an update on the claim. No response provided to the plaintiff.45 13 Aug 2019 Second defendant Correspondence sent to Shine Lawyers advising as no response has been received they anticipated 38 Court document 32, [35]. 39 Court document 32, [36]. 40 Court document 32, [37]. 41 Court document 32, [38]. 42 Court document 32, [39]. 43 Court document 32, [40]. 44 Court document 32, [41]. 45 Court document 32, [42]. -- 6 of 17 -- 6 receiving instructions to bring application to strike out the plaintiff’s claim.46 22 Aug 2019 Plaintiff Shine Lawyers signed a List of Documents. Letter sent to each defendant enclosing such List of Documents.47 28 Aug 2019 Fourth defendant Correspondence sent to Shine Lawyers advising no action had been provided and no new steps are to be taken by the plaintiff without an order of the court.48 26 Sept 2019 Plaintiff Plaintiff telephoned Shine Lawyers and left a voice mail seeking an update on his matter.49 1 Oct 2019 Plaintiff Plaintiff telephoned Shine Lawyers seeking an update on his matter.50 2 Oct 2019 Plaintiff Telephoned Michael Eliadis’ chambers following up on the outstanding advice.51 13 Nov 2019 Plaintiff Telephoned Michael Eliadis’ chambers following up on the outstanding advice.52 12 Dec 2019 Plaintiff Email sent to Michael Eliadis following up outstanding advice.53 24 Feb 2020 Plaintiff Email sent to Michael Eliadis following up outstanding advice.54 3 Mar 2020 Plaintiff Plaintiff telephoned Shine Lawyers seeking an update on his matter. Shine Lawyers telephoned Michael Eliadis’ chambers following up the outstanding advice.55 26 Mar 2020 Plaintiff Plaintiff telephoned Shine Lawyers seeking an update on his matter. 46 Court document 32, [43]. 47 Court document 32, [44]. 48 Court document 32, [45]. 49 Court document 32, [46]. 50 Court document 32, [47]. 51 Court document 32, [48]. 52 Court document 32, [49]. 53 Court document 32, [50]. 54 Court document 32, [51]. 55 Court document 32, [52]-[53]. -- 7 of 17 -- 7 31 Mar 2020 Plaintiff Shine Lawyers telephoned Michael Eliadis’ chambers following up the outstanding advice.56 9 April 2020 Plaintiff Advice from Michael Eliadis received. 12 May 2020 Plaintiff Kylie Carson took conduct of the action.57 27 May 2020 Plaintiff Correspondence sent to second defendant requesting disclosure.58 18 Jun 2020 Second defendant Shine Lawyers advised that as no steps had been taken since 12 Oct no steps could be taken without leave of the court.59 19 Jun 2020 Plaintiff Shine Lawyers wrote to all defendants stating the steps that had been taken. 22 Jun 2020 Plaintiff Shine Lawyers wrote to all defendants disclosing Centrelink File and ASIC Personal Company searches.60 2 Jul 2020 Fourth defendant Correspondence sent to Shine Lawyers reiterating their position regarding no steps being taken in the proceedings. 3 Jul 2020 First defendant Correspondence sent to Shine Lawyers stating they agree with the position of the fourth defendant. 14 Jul 2020 Plaintiff Application filed to take a step in the proceedings.61 22 Jul 2020 Plaintiff Correspondence sent to all defendant requesting disclosure by way of service of their Lists of Documents. Leave to take a step [3] Rule 389(2) of the UCPR states: “If no step has been taken in a proceeding for two 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. It is noted in the introduction to the commentary of the annotations that it is perhaps and unfortunate reflection of the lack of diligence of 56 Court document 32, [54]. 57 Court document 32. 58 Court document 32, [57]. 59 Court document 32, [58]. 60 Court document 32, [59]. 61 Court document 32. -- 8 of 17 -- 8 litigants, and their solicitors in prosecuting matters that r 389 has been one of the most litigated provisions of the UCPR since their introduction.” [4] In Dempsey v Dorber (1991) Qd R 418, Connolly J made the following comment: “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.” [5] Chesterman J approved the comments in Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Limited (1999) QSC 372, noting as follows: “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 the action continuing in which no step has been taken for three years. 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 Tylor (1996) 186 CLR 541 at 547; 139 ALR 1; 70 ALGR 866; BC 9604531 per Tooey and Gummow JJ. [6] In Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 (“Tyler”), Atkinson J with whom McMurdo P and McPherson JA agreed, set out a non-exclusive list of 12 factors to be taken into account in determining whether the interest of justice required the case be dismissed under r 389. However, it is noted “[t]he Court’s discretion is 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.”62 Her Honour went on to observe: “[un]necessary delay in proceedings has a tendency to bring the legal system into disrepute and to decrease the chance of there being a fair and just result”. [7] In Hoy & McCormack v Honan & Anor,63 Derrington J said: 62 Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178, [12]. 63 [1997] QCA 250. -- 9 of 17 -- 9 However where a respondent to an application such as this alleges prejudice by reason of the effluxion of time, the position is as follows: “It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.” Submissions Plaintiff’s submissions [8] In addressing the factors set out in Taylor, the applicant notes: 1. “How long ago the events alleged in the statement of claim occurred and what delay was there before the litigation was commenced? [9] The applicant notes the injuries occurred on 11 March 2012. Notice of claim pursuant to the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”) was delivered to the first defendant on 7 August 2012 and second, third and fourth defendants on 13 February 2014. Medical reports were obtained in 2013, 2014 and 2015 and a statement of loss and damage and list of documents were provided by the plaintiff on 16 February 2016 and compulsory conference held on 8 March 2016. 2. “How long ago the litigation was commenced or cause of actions were added.” [10] The claim and statement of claim were filed on 6 May 2016 and amended claim and statement of claim were filed on 8 September 2016. The last step in the proceedings was 8 December 2016 when the second defendant filed notice claiming contribution to the first, third and fourth defendants. It was submitted the court might find disclosure was made by the second defendant on 10 November 2017 when documents from a writ of non-party disclosure were delivered it to the plaintiff’s solicitors at the request of the second defendant. 3. “What prospects the plaintiff has of success in the action.” [11] It is submitted there were a number of similar problems and requests for maintenance of the lift prior to the plaintiff’s injuries and a failure to properly repair the lifts. Pleadings reflect that prior similar complaints were made by the plaintiff on 1 March 2012 and 5 March 2012 but the elevators and attendances by representatives of the second and fourth defendant at the premises to examine faults with the lift, and -- 10 of 17 -- 10 a reporting of the following day by the plaintiff of the subject incident to the fourth defendant. It is noted the paragraphs plead similar complaints to that which caused the plaintiff’s injuries. 4. “Whether or not there has been disobedience of court orders or directions.” [12] It was submitted this has not occurred. 5. “Whether or not the litigation has been characterized by periods of delay.” [13] It was submitted there has been delay. 6. “Whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant.” [14] It is submitted the delay is attributable to the legal advisers and the defendants but not the plaintiff. The applicant says the defendants failed to comply with their obligations of disclosure pursuant to r 214 within 28 days from the close of pleadings. Delay was also caused by the provision of an advice on evidence by counsel which was sought on 17 December 2017 and provided on 9 April 2020. It is stated the applicant contacted the solicitors to enquire as to the progress of the claim on 12 February 2018, 14 March 2018, 9 January 2019, 6 March 2019, 22 July 2019, 26 September 2019, 1 October 2019, 3 March 2020 and 26 March 2020.64 On each occasion it is said the solicitors told the applicant they were waiting for an advice from the barrister. Although the applicant requested a different barrister be retained, he was told this was not necessary. 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.” [15] It is submitted this is not relevant. 8. “Whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim.” [16] It is noted the applicant’s claim would be statute barred if struck out, and the plaintiff would be highly prejudiced. 9. “How far the litigation has progressed.” 64 Court document 32, [28], [30], [37], [39], [42], [46], [47], [52] and [54]. -- 11 of 17 -- 11 [17] It is submitted the pre-court procedure which involved exchange of some liability in quantum documents has concluded. The pleadings have closed. Medical evidence has been obtained and the plaintiff has made disclosure. The applicant is waiting for the defendants to make disclosure and an expert report prepared on the issue of liability. 10. “Whether or not the delay has been caused by the plaintiff’s lawyers being dilatory. Such deleteriousness 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 for his or her legal advisers.” [18] The applicant states he has not been responsible for the delay and the delay has largely resulted from the delay in delivery of an advice from counsel and the defendants’ failure to make disclosure. 11. “Whether there is a satisfactory explanation for the delay.” [19] The applicant submits the delay has been caused by the plaintiff’s legal advisers and the defendants’ not making disclosure. 12. “Whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.” [20] It is submitted no prejudice has been raised by the defendants. The applicant reported the incident to the fourth defendant the day after it occurred. The incident was documented. The defendants have had notice of the plaintiff’s claim before proceedings were commenced as notice of claim for damages was issued to the defendants pursuant to PIPA on 7 August 2012 and 13 February 2014. In summary, counsel for the applicant submitted: (a) the delay was caused by the plaintiff’s legal advisors and the defendant’s failure to provide disclosure in accordance with r 214 UCPR, and not the plaintiff; (b) should the order not be granted, the plaintiff will suffer great prejudice as he will lose his right of action; (c) the first and fourth defendants plead the prior complaints about the elevators, the attendance in relation to these problems and the plaintiff’s complaint about the elevators. Liability will not depend upon the recollection or conversations -- 12 of 17 -- 12 and documents exist in relation to the complaints about the lifts prior and after the plaintiff’s injury; (d) The defendants were notified of the plaintiff’s claim within a reasonable time after the plaintiff’s injuries and proceeded through the pre-court steps according to PIPA and a settlement conference took place. The defendant had the opportunity to make all enquiries in relation to liability in quantum and to gather all relevant evidence prior to the compulsory conference. Statements should have been taken and documents disclosed; (e) The defendants have not suffered prejudice; (f) On 25 October 2017, the solicitors for the first defendant delivered a notice of non-party disclosure on Aberdovy Clinic and requested the records be delivered directly to the plaintiff’s solicitors. On 10 November 2017, the records from Aberdovy Clinic were received by Shine Lawyers (paragraphs 7 and 8 of Ms Carson’s affidavit sworn 3 August 2020). In the normal course the records would be sent to the party issuing the notice of non-party disclosure who would disclose the records to the solicitors for the plaintiff which would constitute a step in the proceedings.65 Submissions of first, second and third defendants [21] Counsel on behalf on the first, second and third defendants submitted the litigation has been characterised by long delays, during which the defendants have unsuccessfully sought action and progress from the plaintiff. Such delays by the plaintiff are not explained. It was noted the litigation has effectively not progressed since the close of pleadings and there has been no exchange of expert evidence. It was submitted the matter has considerable distance before being ready for trial. It is further submitted the affidavit material suggests the plaintiff’s solicitors and barrister were entirely responsible for the delay. [22] It was further noted the defendants have provided documents sought during the PIPA process or shortly after the proceedings were commenced. The counsel for the first, second and third defendants submitted “the second and third defendants have both put on evidence about the unavailability of witnesses, documents and physical 65 Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 277 at 12. -- 13 of 17 -- 13 evidence given the effluxion of time”.66 Critical employees are no longer employed by the defendants, documents no longer exist, and physical evidence (namely, the lift itself) has changed in the intervening period. Given the matter is a long distance from trial readiness, these problems may become even larger by the time the matter comes on for trial. It is difficult to see how any of the parties will be able to have a fair trial in the circumstances. It is submitted the application ought to be refused. [23] It was noted “the inference should be drawn from the plaintiff’s material that his solicitor’s file is incomplete”. How they will be in a position to progress the matter remains unexplained. The plaintiff has been aware of his solicitor’s dilatoriness and has apparently chased them for updates on at least nine occasions since February 2018,67 yet those very solicitors continue to have conduct of the matter. Whether this is because the plaintiff is financially bound to them, or because he is untroubled by the delays, is unexplained. Nothing about the conduct of this application, with its piecemeal delivery of material, gives any assurance the conduct of these proceedings by the plaintiff’s solicitor will improve. [24] The plaintiff ought not have leave to take a step under r 389(2); instead, the matter ought be struck out or at least stayed. It was submitted the plaintiff should pay the defendants’ costs of the application in any event. Submissions of fourth defendant [25] The fourth defendant submits it accepts the last step in the proceedings was on 8 December 2016 when the second defendant filed notices claiming contribution to the first, third and fourth defendants. In the circumstances of this case, the fourth defendant contends the factors which tell against the exercise of the court’s discretion. The delay in the conduct of the action has not been adequately explained. While “the plaintiff’s solicitors seek in a belated attempt to assume the blame for themselves and to blame the counsel they retain, to shield the plaintiff from the consequences of their dilatory behaviour, the plaintiff is not blameless”. He has not provided an affidavit in these proceedings. 66 Affidavit of Lisa Michelle Quilty, [20]-[21]; Court document 35, [7]-[9]. 67 Court document 32, [28], [30], [37], [39], [42], [46], [47], [52], [54]. -- 14 of 17 -- 14 [26] On the affidavit material before the court, the plaintiff was not diligent in perusing his solicitors in respect of the conduct of the action, particularly in circumstances in which he was ignored and “fobbed off” with respect to his enquiry as to the conduct of the action over a protracted period. It was submitted the court should regard with some suspicion the proposition that is now claimed the plaintiff sought to retain a different barrister, given the lateness with which this allegation has been raised and the fact it is not supported by an affidavit by the plaintiff. Further, it is submitted the proposition that any delay may be laid at the feet of the fourth defendant is wrong. The fourth defendant made full disclosure of all documents relevant to the claim during the course of the PIPA proceedings. The fourth defendant responded properly to the request made of it by the plaintiff throughout the course of the proceedings. Whilst the fourth defendant did not make disclosure within 28 days of the close of the proceedings, nor did the plaintiff and nor did the plaintiff pursue the fourth defendant to do so by making a demand for disclosure in accordance with the rules of filing an application seeking disclosure. The reason it did not do so is because the plaintiff himself had no interest in pursuing the claim. Discussion and decision [27] Both parties relied on and addressed the factors relevant to these types of applications set out by Atkinson J in Tyler.68 Of course, this is not a rigid list and regard must be had to all the relevant circumstances of the case.69 [28] On 10 November 2017, disclosure was made by the second defendant when documents from a Notice of Non-Party Disclosure were delivered to the plaintiff’s office at the request of the second defendant. In Smiley v Watson,70 it was held obtaining a document by way of proceedings for non-party disclosure was not a step in the proceedings; analogy was drawn to the taking of a statement of evidence from a non-party. The plaintiff notes that if the second defendant had requested the records be delivered to itself, rather than the plaintiff, the second defendant would then have had to disclose the records to the plaintiff, which would have constituted a step in the proceedings.71 The plaintiff submits this would have been the ‘usual course’.72 68 [2000] QCA 178. 69 [2000] QCA 178, [2]. 70 [2002] 1 Qd R 560; Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272, [47]. 71 Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272. 72 Plaintiff’s submissions, [10(f)]. -- 15 of 17 -- 15 However, I accept the argument of the plaintiff that but for this unusual course, a step would have been taken at that time. It is arguable that by having the documents delivered directly to the plaintiff, the second defendant thereby disclosed them to the plaintiff. However, in my view, as the second defendant never received the documents their obligation to disclose them was not enlivened. In any event, I consider the last step take in the action was the filing of the Notices of Contribution by the second defendant on 8 December 2016. [29] The plaintiff’s prospects of success in the action are at least reasonable. The plaintiff’s original claim is for personal injuries said to be suffered as result of travelling in a lift on 11 March 2012 which jolted or jerked whilst he was carrying an object weighing 22 kilograms. Statements indicate there had been significant problems with the lift malfunctioning and another person had suffered an injury because of the lift jolting. [30] All parties have a responsibility for expediting a proceeding pursuant to UCPR rule 5 and cannot sit on their hands. However, I find the delay is solely attributable to the plaintiff’s legal advisors as outlined above, rather than the plaintiff or defendants. [31] While the delay is somewhat lengthy, there has been no disobedience of court orders or directions. The plaintiff’s claim would be statute-barred if struck out, and the plaintiff would be highly prejudiced. [32] “It is recognised that reasonable excuse for the delay is not a condition precedent to a grant of leave to proceed and a greater focus is placed upon the existence of material prejudice to the other party by permitting the action to proceed.”73 Here, the litigation has progressed a significant distance; pleadings are closed. There is no identifiable prejudice to the defendants, other than the prejudice inherent in any delay of significant time.74 [33] In all the circumstances, I consider the plaintiff’s application for leave to proceed ought to be allowed. 73 The President‘s Club Limited & Anor v Palmer Coolum Resort Pty Ltd & Anor [2019] QSC 209, [52]; Quinlan v Rothwell [2002] 1 Qd R 647; [2001] QCA 176 at 656, [26] per Thomas JA citing Wilson v Bynon [1984] 2 Qd R 83. 74 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. -- 16 of 17 -- 16 [34] I will hear submissions as to directions and costs. -- 17 of 17 --