Delay in Civil Proceedings – When Rule 389 Applies
In relation to delay in civil proceedings, rule 389 of the Uniform Civil Procedure Rules 1999 (Qld) regulates the continuation of civil proceedings after periods of inactivity.
In simple terms, the rule operates by reference to the time elapsed since the last procedural step taken by any party.
Where no step has been taken for one year, a party wishing to proceed must first give notice of its intention to do so.
Where no step has been taken for two years, the proceeding cannot be advanced at all unless the court grants leave. The specific wording of the rule is as follows:
(1) If no step has been taken in a proceeding for 1 year from the time the last step was taken, a party who wants to proceed must, before taking any step in the proceeding, give a month’s notice to every other party of the party’s intention to proceed.
(2) 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 this rule, an application in which no order has been made is not taken to be a step.
Delay in civil proceedings does not automatically end proceedings. Rather, it imposes a procedural restraint that transfers control of the litigation from the parties to the court.
Once engaged, r 389 requires the party seeking to progress the matter to justify why the proceeding should be permitted to continue, having regard to the court’s supervisory role and the broader objectives of the UCPR.
In this article, our commercial litigation lawyers explain the operation of Rule 389 of the UCPR.
The Purpose of Rule 389 of the UCPR
The purpose of r 389 (delay in civil proceedings) is to prevent proceedings from remaining dormant indefinitely.
The rule reflects the principle that civil litigation should progress toward resolution within a reasonable time and that prolonged inactivity may undermine fairness, efficiency, and confidence in the administration of justice.
This supervisory function was emphasised by the Court of Appeal in Lu v Fenson Legal Pty Ltd [2025] QCA 165, where Bond JA explained at [9] that the procedural powers of the court must be exercised consistently with the philosophy of the UCPR:
In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way. The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.
This obligation informs how courts approach applications under r 389, reinforcing that delay in civil proceedings is not assessed in isolation but against the overarching requirement that proceedings be conducted efficiently and without undue stagnation.
Identifying the Last Step in a Proceeding
Whether r 389 is enlivened depends upon identifying when the last qualifying step in the proceeding was taken.
The concept of a step is not defined exhaustively and has been shaped by judicial interpretation. Importantly, not every procedural act will suffice; the act must meaningfully advance the litigation.
In Artahs Pty Ltd v. Gall Standfield & Smith (A Firm) [2012] QCA 272, McMurdo P articulated the operative test at [3], emphasising that substance rather than form is decisive:
Whether a step has been taken in a particular proceeding will turn on the pertinent circumstances in that case… to be a step under r 389 it must, consistent with that word’s ordinary meaning, progress the action towards a conclusion.
This approach ensures that purely administrative or ineffective actions do not artificially interrupt the running of time under r 389.
The Consequences of Prolonged Inactivity
Once r 389 is engaged, the continuation of the proceeding is no longer a matter of right.
The court must decide whether permitting the matter to proceed is consistent with the interests of justice, considering factors such as the length and explanation for the delay in civil proceedings, prejudice to the opposing party, and the overall fairness of allowing the dispute to continue.
The potential consequences of prolonged inactivity are illustrated by Mathiesen v Lawson [2018] QSC 154, where North J explained why prolonged inactivity can undermine the continuation of proceedings. His Honour observed at [38]–[39]:
the history of the dealings relied upon in the pleadings, the complexity of the factual allegations and the circumstances that relevant or impugned conduct dating from many years ago are relevant to the issue of the application for dismissal of the proceedings for want of prosecution… The progressively growing difficulty of fairly determining questions of fact arising out of events which occurred many years ago is a matter of real significance.
The decision underscores that unexplained or unjustified delay in civil proceedings may ultimately result in the permanent termination of the proceeding.
The Exercise of the Court’s Discretion Under Rule 389
Once rule 389 is engaged, the continuation of the proceeding depends upon the exercise of judicial discretion.
That discretion is broad and evaluative, and it is not confined to a single correct outcome. This was made clear by the Court of Appeal in Lu v Fenson Legal Pty Ltd [2025] QCA 165, where Bond JA explained at [11] that:
The law governing its exercise tolerated a range of outcomes, all of which could reflect a legally correct exercise of judicial power.
This passage confirms that applications under r 389 are not determined by the mechanical application of rules, but by a weighing of competing considerations directed to the interests of justice.
Responsibility for Delay in Civil Proceedings
In exercising the discretion under rule 389, courts frequently examine whether delay in civil proceedings is properly attributable to the litigant or to those acting on their behalf.
That inquiry is relevant because delay caused by legal representatives may attract a different evaluative response than delay resulting from a party’s own inaction.
However, attribution does not exempt from scrutiny, and solicitor-caused delay will still be weighed against considerations of prejudice and fairness.
The practical operation of this distinction is illustrated in William Doolan v Hugh William Blennerhassett [2025] QSC 208.
In assessing the explanation for the delay in civil proceedings, Martin SJA examined the conduct of the applicants’ legal representatives after notice of an intention to proceed was given. His Honour observed at [13] that:
Counsel was engaged to prepare and settle the application, but no settled documents were forthcoming notwithstanding correspondence between the applicants’ solicitor and the barrister.
This passage demonstrates that courts will closely analyse where responsibility for delay lies and will not assume that inactivity reflects indifference on the part of the litigant.
At the same time, the decision confirms that a delay in civil proceedings attributable to legal advisers remains relevant to the overall discretionary assessment and does not, of itself, compel the grant of leave.
Prejudice and the Limits of Judicial Tolerance
In assessing applications under rule 389, courts are ultimately concerned with whether delay in civil proceedings has caused, or risks causing, unfairness in the conduct or resolution of the proceeding.
Prejudice is not confined to forensic disadvantage alone, but includes the broader consequences of allowing litigation to remain unresolved for extended periods. Where delay undermines the fair and expeditious resolution of disputes, the court’s tolerance is limited.
This principle was articulated by the Queensland Court of Appeal in Lu v Fenson Legal Pty Ltd [2025] QCA 165, where Bond JA emphasised that the procedural powers enlivened by delay must be exercised consistently with the overarching purpose of the UCPR. His Honour stated at [9]:
The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense… The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.
This passage makes clear that prolonged inactivity is not assessed in a vacuum. Delay in civil proceedings is evaluated by reference to its effect on the fairness, efficiency, and integrity of the proceeding.
Where delay frustrates those objectives, the imposition of sanctions, including dismissal, falls squarely within the court’s supervisory function.
The practical consequence is that even where a proceeding remains theoretically capable of being tried, the court may conclude that continued indulgence is no longer justified.
Judicial tolerance for delay diminishes as inactivity lengthens and as the burden on the opposing party and the court increases. In that sense, prejudice operates as a limiting principle on the discretion to permit delayed proceedings to continue.
Practical Consequences of Delay in Civil Proceedings
Once a proceeding has remained inactive for a prolonged period, rule 389 alters the parties’ practical position in a substantive way.
The ability to advance the litigation is no longer assumed, and steps taken without proper authority may be treated as ineffective. The consequence is that delay in civil proceedings can deprive parties of control over their own proceedings.
This is illustrated in Ure v Robertson [2017] QCA 20, where the Court of Appeal considered whether a list of documents delivered after an extended inactivity could revive the proceeding. In addressing the effect of taking steps without leave, Bond J explained at [44] that:
The primary judge was entitled to conclude that the delivery of the list of documents did not advance the proceeding in any meaningful way and did not warrant the exercise of the discretion to relieve against the consequences of non-compliance.
The consequence in that case was that the step relied upon by the plaintiff was treated as ineffectual, and the proceeding was dismissed notwithstanding the apparent attempt to move the matter forward.
The decision demonstrates that late or insubstantial steps may fail to protect a proceeding from the effects of delay.
A further practical consequence of prolonged inactivity is the increased likelihood that dismissal will be ordered in the interests of finality.
In Electro Industry Group Queensland Ltd v O’Donnell Griffin Pty Ltd [2017] QCA 24, the Court of Appeal upheld the striking out of third-party proceedings that had not been prosecuted with reasonable diligence. In explaining why dismissal was justified, the Court observed at [67] that:
The continued existence of proceedings which are not being actively progressed imposes an unnecessary burden on other parties and on the administration of justice.
This reasoning highlights that delay in civil proceedings is not assessed solely by reference to the conduct of the party seeking to proceed, but by its broader impact on the litigation environment.
Where inactivity results in unresolved exposure or ongoing uncertainty, the court may conclude that the continuation of the proceeding is no longer justified.
Together, these authorities illustrate that a delay in civil proceedings carries concrete consequences. Parties who allow proceedings to stagnate risk having later steps disregarded, losing the opportunity to revive their case, or facing dismissal altogether.
Rule 389, therefore, operates not merely as a procedural checkpoint but as a mechanism that can determine whether litigation is permitted to continue at all.
Delay in Civil Proceedings in Queensland – Key Takeaways
Rule 389 operates as an important mechanism through which the court maintains control over civil proceedings that have fallen into inactivity.
It does not punish delay for its own sake, nor does it permit litigation to be revived as of right after prolonged stagnation.
Instead, the rule reflects a balance between the interests of justice, the need for finality, and the efficient use of judicial resources.
The authorities demonstrate that delay in civil proceedings can have real and lasting consequences. Once proceedings lapse, parties may lose control over whether their dispute is heard at all, regardless of the underlying merits.
Rule 389, therefore, underscores the importance of active case management and timely progression, reminding litigants that civil proceedings must move forward or be capable of justification if they are to continue.
Delay in Civil Proceedings Frequently Asked Questions
Delays in civil proceedings often raise practical concerns for litigants about whether their case can proceed and what the consequences of inactivity may be.
The following answers address the most common questions about how rule 389 operates in Queensland and how courts respond to prolonged delay in litigation.
How long can court proceedings be delayed in Queensland?
Court proceedings can technically remain inactive for extended periods, but delays have consequences. In Queensland, if no procedural step is taken for one year, notice is required before continuing. After two years of inactivity, proceedings generally cannot continue without the court’s permission. Prolonged delay in civil proceedings increases the risk that the case will be stayed or dismissed.
Can a court case be dismissed for taking too long?
Yes. Courts have the power to dismiss proceedings for want of prosecution where delay is excessive and unjustified. Dismissal is more likely where delay causes unfairness, prejudice, or undermines the proper administration of justice. A case does not need to be abandoned entirely to be dismissed—extended inactivity alone can be sufficient.
What happens if nothing happens in a court case for years?
If a case remains inactive for a long period, the court may require a party to seek permission to continue. The longer the delay, the more scrutiny the court will apply. In some cases, the proceeding may be dismissed entirely, particularly if the delay cannot be satisfactorily explained or has caused prejudice to the other party.
Can a delayed court case be restarted later?
Sometimes, but not automatically. After a significant delay, a party may need the court’s permission to take further steps. The court will consider factors such as the reason for the delay, whether the other party has been prejudiced, and whether it is fair to allow the case to continue. Revival is not guaranteed.
Does delay in civil proceedings affect the outcome of a court case?
Delay can affect whether a case is allowed to continue at all. Even where a claim has merit, excessive or unexplained delay may result in dismissal. Delay can also affect evidence quality, witness availability, and overall fairness, all of which influence how courts manage or resolve proceedings.
Is the delay in civil proceedings caused by lawyers treated differently?
Courts may distinguish between delay caused by legal representatives and delay in civil proceedings caused by the party itself. However, solicitor-caused delay does not automatically excuse inactivity. The court will still assess whether continuing the case would be fair and whether the delay has caused prejudice to the other side.
What counts as taking a step in court proceedings?
A step generally means an action that genuinely advances the case toward resolution, such as filing pleadings or complying with court directions. Administrative actions or ineffective procedural moves may not count. Whether something qualifies as a step depends on its substance, not merely its form.
Can the other party use delay in civil proceedings strategically?
Yes. If a proceeding has stalled, the opposing party may rely on the delay in civil proceedings to seek dismissal or to resist attempts to revive the case. Courts recognise that defendants are entitled to finality and should not be indefinitely exposed to unresolved litigation.
What reasons for delay in civil proceedings are usually accepted by courts?
Courts assess delay on a case-by-case basis. Reasons such as genuine settlement negotiations, unavoidable procedural complications, or circumstances beyond a party’s control may be accepted. However, vague explanations, inattention, or prolonged inactivity without justification are unlikely to be sufficient.
How can parties avoid problems caused by delays in court cases?
The most effective way is active case management. Parties should comply with court directions, take meaningful steps to progress the case, and seek advice promptly if delays occur. Allowing a proceeding to stagnate risks losing control over whether it can continue.
