Civil Procedure - Delay

Question 1

Which rule relates to delay?

Answer 1

Rule 389

Question 2

Which case deals with delay?

Answer 2

Tyler v Custom Credit Corp Ltd [2000] QCA 178

Question 3

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

Answer 3

Rule 389(1)

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

Question 4

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

Answer 4

Rule 389(1)

One month.

Question 5

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

Answer 5

Rule 389(2)

If no step has been taken for 2 years since the last step taken.

Question 6

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

Answer 6

Rule 389(3)

No.

Question 7

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

Answer 7

No.

Question 8

What are the 12 relevant factors in Tyler v Custom Credit Corp Ltd?

Answer 8

1. How long ago the events alleged in the SOC occurred and was there delay before litigation was commenced.
2. How long ago the litigation was commenced or COA were added.
3. What prospects of success the plaintiff has.
4. Has there been disobedience of court orders/directions.
5. Was the litigation characterised by periods of delay.
6. Was the delay attributable to the plaintiff, the defendant OR both.
7. Was the impecuniosity of the plaintiff responsible for the pace of the litigation. Is the defendant responsible for the plaintiff’s impecuniosity.
8. Would striking out the plaintiff’s claim conclude the litigation between the parties.
9. How far the litigation has progressed.
10. Has the delay been cause by plaintiff’s lawyers being dilatory.
11. Is there a satisfactory explanation for the delay.
12. Has the delay resulted in prejudice to the defendant leading to an inability to ensure a fair trial.