Court Supervision (Directions)/ Effect of Failure to Comply/ Amendments/ Delay

Question 1

When can a court make directions about the conduct of a proceeding?

Answer 1

At any time

Rule 366 (2)

Question 2

When can a party apply for directions?

Answer 2

At any time

Rule 366 (3)

Question 3

What types of orders/ directions can the court make in relation to a proceeding?

Answer 3

Any order it considers appropriate EVEN THOUGH IT MAY BE INCONSISTENT WITH THESE RULES… as long as it is in the interest of justice to do so.

Rule 367

Question 4

Give some examples of types of orders that can be made under Rule 367.

Answer 4

Proceedin stayed until DNA submitted (Alder v Khoo)

Civil proceedings stayed until committal in criminal prosecution (Hamilton Island Enterprises v Johnston)

Directions timetabling matter for trial (Bellino v Douglas)

Trial to be conducted by telephone due to plaintiff’s ill health (McLoughlin v State of Queensland).

Question 5

When can a court revoke or vary an order made under Rule 367?

Answer 5

At any time.

Rule 367 (6)

Question 6

Does failure to comply with the rules render a proceeding, a document, step-taken or order made in a proceeding null and void?

Answer 6

No

Rule 371 (1)

Question 7

How can the court rectify a failure to comply with the rules?

Answer 7

By making a remedial procedural order.

Stone v ACE-IRM

Question 8

Does the court have the power to set aside proceedings which were commenced using the wrong originating process?

Answer 8

No

Rule 373

Question 9

Consequential orders: to ensure action is run fairly and expeditiously, the court can declare a procedural step effectual despirte not being fully compliant.

Name the case.

Answer 9

Deppro Pty Ltd v Hannah

Question 10

Name some of the irregularities that occur as failure to comply with rules.

Answer 10

a. Withdrawing admissions made in defence without leave (Collie v Edmunds)

b. Amending pleadings without leave (Body Corporate for Sun City Resort)

c. Failure to endorse a claim properly for services outside of Qld

d. Service of stale proceedings (Gilles v Dibbetts)

e. Filing and serving a late reply (Morrison v Australian Postal Corporation)

f. Commencing a proceeding for person under legal incapacity without the appointment of a litigation guardian (DM v MJG)1`

Question 11

What rules in the UCPR deal with Amendments Generally?

Answer 11

Rules 375-381

Question 12

What is the general power to amend?

Answer 12

AT ANY STAGE the court may allow or direct a party to amend claim, pleading, application or any other document in a proceeding, in the way and on the conditions the court considers appropriate.

Rule 375 (1)

Question 13

Can a party amend to include a cause of action that has arisen after the proceeding started?

Answer 13

Yes with leave of the court.

Rule 375 (2)

Question 14

What should the court do if there is a misnomer of a party?

Misnomer = A wrong or inaccurate name or designation.

Answer 14

The court should allow/ direct the party to amend.

Rule 375 (3)

Question 15

Which rule applies to amending an originating process?

Answer 15

Rule 377

Question 16

When can an originating process be amended?

Answer 16

a. if technical matter with leave of court; OR

b. originating process has not been served (and all orgiinal docs returned to court); OR

c. with leave of the court.

This does not apply to a pleading or particular in a originating process

Rule 377 (1)

Question 17

Can a party make amendments to pleadings and particulars without the leave of the court?

Answer 17

Can amend as often as necessary before the filing of a trial date.

Rule 378

Question 18

Can another party apply to have an amendment disallowed?

Answer 18

Yes. If a party makes an amendment without leave before filing of a trial date, another party can apply to the court to disallow all or part of the amendment.

Must be done within 8 days after service of the amendment.

Rule 379 (1)

Question 19

What is the overriding principle one needs to remember when considering amendments generally?

Answer 19

Rule 5

AON v ANU

Question 20

When does an order to amend cease to have effect?

Answer 20

If the party seeking to amend does not do so in time frame specified in order OR within 14 days of order if no time is specified.

Rule 381

Question 22

Which rule in the UCPR deals with delay?

Answer 22

Rule 389

Question 23

What is the case that deals with delay?

Answer 23

Tyler v Custom Credit Corporation Pty Ltd

Question 24

When must a party give one month’s notice of intention to proceed after delay?

Answer 24

When one year has passed since the last step was taken.

Rule 389 (1)

Question 25

If one year has passed since the last step taken in a proceeding, how much notice must a party give the others of their intention to proceed?

Answer 25

One month. ## Footnote Rule 389 (1)

Question 26

When will a party require leave of the court to proceed after a delay?

Answer 26

When there has been no step taken for 2 years. ## Footnote Rule 389 (2)

Question 27

Is an application in a proceeding where NO order is made, considered a step?

Answer 27

No. ## Footnote Rule 389 (3)

Question 28

What factors will the court consider when deciding whether to grant leave to continue?

Answer 28

12 factors as set out in the case of *Tyler v Custom Credit Corporation*

Question 29

Does an application to strike ourt for want of prosecution require an order under s389?

Answer 29

No

Question 30

What is a step for the purpose if delay?

Answer 30

A step carries the proceeding forward. ## Footnote *Webster v Yates*

Question 31

What are some examples of steps taken in proceeding?

Answer 31

* Lists, amended lists of documents. * Filing a notice to admit facts. * Enclosing copies of consent adjournment application and affidavits. * Filing an application for an assessment of bill of costs.

Question 32

Does a step include the preparation of ones own case?

Answer 32

No ## Footnote *Citicorp Australia v Metropolitan Public Abattoir*

Question 33

What are some examples of non-steps?

Answer 33

* Requesting undisclosed, but irrelevant documents. * Attempts to organise a mediation. * Draft statement of loss and damage. * Issuing or renewing a claim. * Making an offer oustide of the UCPR * Providing unsigned certificate of readiness. * Filing a notice of non-party disclosure. * Transferring matter between courts.