CPT Manager Ltd v Ascent Pty Ltd

[2011] QDC 74

[2011] QDC 74

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1921 of 2004

CPT MANAGER LIMITED (ACN 05449307)	Plaintiff
and
ASCENT PTY LTD AND ORS	Defendant

BRISBANE

..DATE 30/03/2011

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 5, r 389

Registrar declined to act on a request for a consent order/judgement putting an end to third party proceedings (if not the entire proceeding) on the basis that no step had been taken for more than two years, so that leave of the court had to be obtained - court expresses its view that it was open to the registrar to comply with the request which would conclude the proceeding so far as the parties jointly making the request were concerned

HIS HONOUR:  The court makes an order in terms of the initialled draft, which is a judgment dismissing the third party claim and entering judgment for the third party, Westfield Shopping Centre Management Company (QLD) Pty Ltd with the parties in the third party proceedings, namely, the third party, Westfield, and the first and second defendants bearing their own costs.

A request for consent order/judgment of the Registrar signed by the solicitors for the relevant parties was filed yesterday and is the basis of the judgment.  It was intended to be the basis of a judgment entered by the Registrar yesterday.  However, misgivings were held on the basis that in this proceeding, which began in 2004, there'd been no step taken for longer than two years.  By rule 389, in that situation, "a new step may not be taken without the order of the court."

The caution exhibited in the Registry is understandable, but it's perhaps not called for in circumstances such as the present where all relevant parties have consented to an order which will put an end to the third party proceedings.  Indeed, my understanding from what's been said by Mr Deane and Mr Purcell is that it puts an end to the entire proceeding.

There seems little rational justification for rule 389 being given what appears to be its effect in the present context, particularly in an era when the court is doing all it can by practice directions and even changes to the rules to facilitate resolution of matters by consent orders. 
The taking of a step in a proceeding which, on the basis of relevant parties' consent, brings it to an end, can fairly easily be seen as a step of a different character from the steps which rule 389 apparently has in contemplation which would tend to jeopardise the situation of the party not taking the step. 

The order sought ought to be made by the court. My view is that having regard to the philosophy of the UCPR as set out in rule 5, it would be proper for the court, and in this context, Registry officers, to do their part in making the philosophy a reality as much as possible in the same way as the parties are expected to. It's not appropriate to take from my remarks any criticism of the three Registry staff who were involved here.

It may be helpful, however, for Registry staff to have the indication which I'm seeking to give in these reasons from the court that in this context, rule 389 can be approached with a certain amount of robustness and flexibility.

‑‑‑‑‑