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DISTRICT COURT OF QUEENSLAND
CITATION: Lee v Robinson & Anor [2003] QDC 148
PARTIES: ROBERT LEE
Appellant
v
DAVID ROBINSON
First Respondent
And
SUSAN ROBINSON
Second Respondent
FILE NO: 135 of 2003
DIVISION: Appellate
PROCEEDING: Civil Appeal against decision of Magistrate in Chambers.
ORIGINATING
COURT: Magistrates Court, Ipswich
DELIVERED ON: 6 June 2003
DELIVERED AT: Brisbane
HEARING DATE: 23 December 2002
JUDGE: Boulton DCJ
ORDER: I order that the decision be set aside and that in lieu there
be an order that the plaintiff have leave to proceed.
Unless persuaded to the contrary the plaintiff should have
his costs of the appeal and in the court below to be
assessed.
CATCHWORDS: APPLICATION FOR LEAVE TO PROCEED – UCPR r 389
- Delay explained - Limitation period yet to expire.
COUNSEL: Mr R N Lawson for Appellant;
Mr S D Guttridge for Respondents.
SOLICITORS: Trilby Misso for the Appellant;
Baker & Brown for Respondents.
REASONS FOR JUDGMENT
[1] This is an appeal against a decision of a magistrate in chambers on 23 December
2002 dismissing an application on behalf of the plaintiff for leave to proceed with
the action pursuant to r 389 of the UCPR..

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[2] It would seem that the plaintiff did certain building work for the defendants in 1997-
98. A plaint was issued on 8 October 1998 claiming outstanding monies. When no
Entry of Appearance and Defence was filed, default judgment was entered by the
registrar on 16 November 1998. An application to set aside that default judgment
was filed on 25 November 1998. On 16 December 1998 the judgment was set aside
by Mr Gordon SM.
[3] There was a brief mention in the written submissions before me that the matter may
have been referred to the Queensland Building Tribunal. Counsel could provide me
with no information to suggest that that had been done. It seems that at some stage
there may have been a report from a building inspector. I note that Mr Gordon at
p 8 of his decision directs that the registrar be notified within 28 days of the filing of
an Entry of Appearance and Defence whether such a transfer was being sought by
the parties. A perusal of the file does not reveal any such notification.
[4] I note that submissions before Mr Gordon made mention of allegations of defects in
the building which were being relied upon by way of defence. A draft Entry of
Appearance and Defence was exhibited to the affidavit of David Robinson filed in
support of that application. Subsequently on 22 December 1998 an Entry of
Appearance, Defence and counterclaim was filed. I note that the counterclaim
merely repeats paras 1-15 of the defence.
[5] A pre-trial conference was ordered to be held on 18 May 1999 seemingly at the
request of the plaintiff’s solicitor which was made by letter dated 19 April 1999. It
seems also that the conference, if held, was unsuccessful.

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[6] The file reveals that the next development was a Notice of Change of Solicitors on
behalf of the plaintiff bearing date 19 March 2002. On 8 August 2002 the
defendant’s solicitors referred to correspondence on 23 April and 18 June 2002
which had enclosed a copy of the Notice of Change of Solicitors and a Request for
Trial respectively and indicated opposition to any application that might be made
for leave to proceed. No response had been received to these earlier items of
correspondence until that letter of 8 August.
[7] The plaintiff then filed an application for leave to proceed on 25 November 2002.
That application was supported by the affidavits of Travis Shane Degen and Robert
Lee both sworn on that date. The male defendant filed an affidavit by leave on 23
December 2002 which was the date of the chamber hearing for the magistrate.
Much of the affidavit material filed on behalf of the plaintiff is in explanation of the
delay in the matter from 18 May 1999 to the Notice of Change of Solicitors being
served on the defendant’s solicitors on 23 April 2002, a period of almost three
years. That delay is explained by difficulties the plaintiff had with his solicitor, Mr
Casey and the financial difficulties standing in the way of obtaining the plaintiff’s
file so that other solicitors could be engaged. It was only in September 2001 that
the present solicitors were able to negotiate the release of the file. These matters are
deposed to in the affidavit of Travis Shane Degen referred to above. Similar matters
are deposed to in the affidavit of the plaintiff to which reference is also made above.
[8] The affidavit of David Robinson filed by leave refers to the abovementioned steps
in the action and points out that there had been no response or defence to the
counterclaim filed 22 December 1998. Mr Robinson makes reference to various
financial difficulties encountered by his wife and himself and some of his wife’s

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health problems. He mentions the sale of the house which had been the subject of
the contract without mentioning the date of the sale or the amount. He goes on to
say that the defendants had altered their financial position in reliance upon their
belief that the plaintiff was not prosecuting the proceedings. At para 15 he goes on
to state that negotiations with respect to the contract were handled by a person,
James Hicks whose current whereabouts is not known to him. Mr Hicks is said to
have told him of some details of the funding arrangements used by the builder. He
also states that he has been unable to ascertain the whereabouts of the salesman who
sold the home on behalf of himself and his wife.
[9] A careful reading of the abovementioned affidavits would disclose that the plaintiff
had adequately explained the delay which had occurred in the matter satisfactorily.
Such an explanation is not essential to a grant of leave to proceed but is one of the
factors to be taken into account.
[10] The portions of the male respondent’s affidavit relating to his financial
circumstances and his wife’s health problems are quite irrelevant, so are the
references to Mr Hicks. The financial arrangements of the plaintiff in funding the
project are also not relevant. Furthermore, there is no dispute on the pleadings as to
the contract. Actually the defence admits the non-payment of approximately
$20,000 of the purchase price. Paragraph 9 states:
“9. The total adjusted price of the building of the dwelling-
house pursuant to the agreement as varied was $42,228.00
of which the plaintiff has been paid $22,000.”
[11] This amount does not differ appreciably from the amount claimed in the plaint apart
from a separate item relating to a debris impact study. The terms of the contract
therefore are not really an issue. The only issue in the case would concern the

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alleged defects and their costings. It seems that attention was given to these issues
at the time and that the defendants had the house inspected by an inspector from the
Building Services Authority who was due to provide a report at the time of setting
aside the default judgment.
[12] At the time that the delay in the conduct of the action commenced the relevant
period for the requirement of leave to proceed was a lapse of three years. However
this period was narrowed to two years as from 1 July 2000 pursuant to the
provisions of r 389 (4) and (5) of the UCPR.
[13] There have been many judicial references over the years to the factors relevant to
the exercise of a discretion to grant leave to proceed.
[14] Reference is made to the House of Lords decision in Birkett v James [1978] AC
297. In Cooper v Hopgood & Ganim McPherson JA refers to Birkett and James:
“Birkett v James suggests only some of the factors relevant in
exercising the discretion, which include matters such as the duration
of the time lapse involved; the cogency of any explanation for delay;
the probably impact of procrastination on fading recollection; the
death or disappearance of critical witnesses or records; costs already
or likely in future to be expended or thrown away; the apparent
prospects of success or otherwise at a trial of the action; and the
progressively growing problem of effectively hearing and
determining questions of fact arising out of events that have taken
place many years before. The list is not, and is not intended to be
exhaustive; and it takes account of another factor that is often likely
to be material, which is 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. The psychological as well as the commercial effects of such a
state of affairs ought not to be under-estimated.”
[15] The delay in the present case of just under three years was by no means inordinate
when compared to delay referred to in many of the decided cases. Furthermore it
was satisfactorily explained and could not be described as being intentional or

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contumelious. After such a modest delay there cannot be a lot of weight put on the
argument that the other parties to the litigation simply wanted to “get on with their
lives”. This is especially the case where the plaintiff’s claim of monies outstanding
under the contract is virtually admitted in full in the defence. The principal issue on
the trial would seem to relate to the alleged defects. Consideration of these defects
had been given at an earlier period of time and on the material before Mr Gordon
SM the defendants were due to receive a building report. The matters raised in the
affidavit of Mr Robinson seem to have no bearing on these issues.
[16] However the matter of great significance that does not receive a mention in the brief
handwritten reasons of the magistrate is the fact that the limitation period has not
expired. There is a cogent authority to support the view that the refusal of leave to
proceed in such circumstances is rare. In Birkett v James 1978 AC 297 at 322 it is
pointed out that while the court has a discretion to dismiss a proceeding where the
limitation period is still running, it should rarely do so if it is likely that the plaintiff
would commence another action. A new action would merely extend the delay.
Similar comments appear at p 328 and p 334.
[17] In Williams v Zupps Motors Pty Ltd 1990 2 Qd R 493 it was held in the full court of
the Supreme Court that the court had no power under its inherent jurisdiction or
otherwise to impose upon the appellant a limitation of time within which he must
commence his action when no statutory limitation applied and that the mere fact
that a party had already had one action dismissed for want of prosecution did not
constitute the institution of a second proceeding to litigate the same right of action
an abuse of court process.

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[18] A similar view is taken in the full court of the Supreme Court of Victoria in
De Nier v Beicht [1982] VR 391.
[19] There is too the consideration, albeit a slender one, that the striking out of the
plaintiff’s claim leaves the defendants’ counterclaim still on foot. Counsel for the
defendants submits that any attempt to activate the counterclaim would be met by
similar considerations but that may not be as conclusive as he suggests.
[20] More recently in Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178
Atkinson J in the Court of Appeal set out a useful check list of matters for
consideration on an application to dismiss an action for want of prosecution or to
give leave to proceed. The list is inclusive:
“(1) how long ago the events alleged in the statement of claim
occurred1
and what delay there was before the litigation was
commenced;
(2) how long ago the litigation was commenced or causes of
action were added;2
(3) what prospects the plaintiff has of success in the action;3
(4) whether or not there has been disobedience of Court orders
or directions;4
(5) whether or not the litigation has been characterised by
periods of delay;5
(6) whether the delay is attributable to the plaintiff, the
defendant or both the plaintiff and the defendant;6
1
Department of Transport v Chris Smaller (Transport) Ltd [1989] 1 AC 1197 at 1207-1208 per Lord
Griffiths; Bishopgate Insurance Australia Ltd (In Liquidation) v Deloitte Haskins and Sells, Supreme
Court of Victoria, Appeal Div, No 4901 of 1989, 9 September 1994 at 22, 23; Hoy v Honan CA No
4058 of 1996, 19 August 1997 at 4; Cooper v Hopgood & Ganim (supra) at 120, 121.
2
Cooper v Hopgood & Ganim (supra) at 120 per Pincus JA.
3
Keioskie v Workers’ Compensation Board of Queensland CA No 46 of 1992, 15 September 1992 at
2-3 per McPherson J; Cooper v Hopgood & Ganim (supra) at 124;
4
Cooper v Hopgood & Ganim (supra) at 121;
5
Birkett v James [1978] AC 297 at 322-323; Bishopgate Insurance Australia Ltd (In Liquidation) v
Deloitte Haskins and Sells (supra) at 27; Cooper v Hopgood & Ganim (supra) at 119, 120, 124.
6
Holmes v Civil & Civic Pty Ltd CA No 15 of 1992, 14 September 1992; Lewandowski v Lovell
(1994) 11 WAR 124; Hoy v Honan (supra) at 5.

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(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;7
(8) whether the litigation between the parties would be
concluded by the striking out of the plaintiff’s claim;
(9) how far the litigation has progressed;8
(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.9
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;10
(11) whether there is a satisfactory explanation for the delay11
and
(12) whether or not the delay has resulted in prejudice to the
defendant leading to an inability to ensure a fair trial.12
”
[21] Not included expressly in the list is the non-expiry of the limitation period to which
I have already referred. It would seem to me that many of the various factors called
for consideration.
[22] I have come to the conclusion, then, that the magistrate failed to have regard to a
number of relevant issues and gave disproportionate effect to some others with the
result that the exercise of the discretion miscarried. I order that the decision be set
7
Hoy v Honan (supra) at 3 per Derrington J; at 7 per Fitzgerald P.
8
Keloiskie v Workers Compensation Board of Queensland (supra) at 10 per Thomas J.
9
Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 at 473; 475; Kaats v Caelers [1966]
Qd R 482 at 497; Tate v McLeod [1969] Qd R 217 at 224-225; Collingwood v Calvert CA No 3028
of 1996, 6 December 1996 at 5, 7, per Fitzgerald P; Cooper v Hopgood & Ganim (supra) at 124.
10
Gleeson v Brick [1969] Qd R 361 at 369; Keioskie v Workers’ Compensation Board of Queensland
(supra) per Thomas J at 7.
11
Campbell v United Pacific Transport Pty Ltd (supra) at 473-474; Witten v Lombard Australia Ltd
(1968) 88 WN (Pt1) NSW 405 at 412; Dempsey v Dorber [1990] 1 Qd R 418 at 420; Keioskie v
Workers’ Compensation Board of Queensland (supra) per Thomas J at 4; Cooper v Hopgood &
Ganim (supra) at 124.
12
Witten v Lombard Australia Ltd (supra) at 412; Dempsey v Dorber (supra) at 420; Keioskie v
Workers’ Compensation Board of Queensland (supra); Bishopgate Insurance Australia Ltd (In
liquidation) v Deloitte Haskins and Sells (supra) at 24-25; Brisbane South Regional Health Authority
v Taylor (1996) 186 CLR 541 at 554-555 per McHugh J; Cooper v Hopgood & Ganim (supra) at
118, 124.

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aside and that in lieu there be an order that the plaintiff have leave to proceed.
Unless persuaded to the contrary the plaintiff should have his costs of the appeal
and in the court below to be assessed.