Quinlan v Rothwell[2001] QCA 176

SUPREME COURT OF QUEENSLAND

1. de JERSEY CJ:   I have had the advantage of reading the reasons for judgment of Thomas JA.  I agree with the orders His Honour proposes, and with his reasons.

2. The dismissal ordered by the learned primary judge cannot be sustained specifically by reference to rule 280 of the Uniform Civil Procedure Rules, which refers to the Court’s power to dismiss for want of prosecution where a plaintiff has not taken a step within the prescribed time. That is because, by the time of the hearing before the learned judge, as far as was gauged, the plaintiff had apparently complied with the most recent order for disclosure.

3. Neither, in my respectful view, can the dismissal be sustained by reference to the only other arguably applicable basis, the inherent jurisdiction of the Supreme Court to dismiss a proceeding for want of prosecution.

4. I at once observe that the discretion to dismiss for want of prosecution may these days confidently be exercised, in appropriate cases, with more robustness than would previously have been considered appropriate. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551-2 jurisprudentially signalled that shift, and it is legislatively suggested through the Uniform Civil Procedure Rules.  The focus of rule 5 rests strongly on “the just and expeditious resolution of the real issues … at a minimum of expense”, and avoiding undue delay, expense and technicality.  The rule has gone to the length of expressly confirming that breach of a party’s “implied undertaking” “to proceed in an expeditious way” may attract sanctions including, as per the proffered example, dismissal of the proceeding.

5. None of this, however, justifies an unduly broad-brush approach to identifying and balancing considerations relevant to the question whether the interests of justice require the proceeding to be dismissed (cf. Cummings v Peter J Davis [2000] QSC 158, para [11]).

6. The learned judge relied on a number of features for his conclusion that the proceedings should be dismissed: the passing of a decade, significant on the Taylor approach; past procedural defaults on the part of the appellant; loss of some documentary material in relation to the calculation of damages; and the death of the respondent’s expert, Mr Ellis. 

7. The last factor should not have weighed substantially in the balance, because there was no suggestion that the services of an alternative expert could not be secured. As to the appellant’s past defaults, they had by the time of the hearing passed by, to a point where the proceedings were apparently largely ready for trial; speculation aside, the court should have proceeded on the basis that compliance with procedural directions was up to date.

8. As to the lapse of a decade since the alleged defamatory publication, I agree with Thomas JA that Taylor cannot be applied such that with the passing of a particularly lengthy period, a proceeding must ipso facto be dismissed.  That obviously could not without more be justified.  There is in this case, where there is apparently a reliable record of the subject interview, a significant lack of sworn material raising any particular suggested deficiency in the recollections of potential witnesses.  One might reasonably infer there do exist comprehensive contemporaneous records of the relevant events.

9. The circumstance which has caused me the greatest concern is the loss over time of documents relating to the assessment of damages. For the reasons given by Thomas JA, that circumstance should not however, upon close analysis, be seen as warranting dismissal, whether taken alone or in conjunction with the unsatisfactorily explained lengthy delay. What is on my assessment the powerful residual circumstance is that the proceedings are substantially ready for trial.

10. An appeal court must be circumspect about interfering with the exercise of a discretion, and especially so where, as here, it concerns a matter of procedure, and even though this decision, while it stands, has such significant consequences. But the exercise of the discretion has, in my respectful view, miscarried in this case because of two errors in the approach taken.

11. The first concerns Mr Ellis. While the death of a possible witness will often raise starkly the prospect of particular prejudice to a fair trial, the death of Mr Ellis carried no such consequence here. The learned judge overstated any significance to the case of the death of Mr Ellis. I consider he also overstated any residual significance, with the action substantially ready for trial, of past procedural defaults on the part of the appellant.

12. Revisiting the exercise of discretion, this court could not, in my view, now dismiss the proceedings in reliance on the aggregate effect of the only other arguably substantial considerations – the unsatisfactorily explained substantial past delay, and the loss of documentary material going to quantum, where the circumstances and the substance of the broadcast are apparently well set down or ascertainable, there is no complaint of other particular likely prejudice, and the matter is substantially ready for trial.

13. THOMAS JA:  This is a plaintiff's appeal against the dismissal of his action.  The dismissal was based on his failure to conduct the action in an expeditious way, and also on his failure to comply with the rules in relation to disclosure.

14. Under the current law, and in particular since the introduction of the Uniform Civil Procedure Rules (“UCPR”), there are several sources of jurisdiction to dismiss for non-compliance with rules or for want of prosecution of proceedings.

1. There is a general statutory discretion to dismiss a proceeding when two years have passed since the last step was taken;^[1]

2. Rule 5(3) of the UCPR recognises that a party impliedly undertakes to the court and to the other parties to proceed expeditiously, and rule 5(4) permits the court to “impose appropriate sanctions” if a party does not comply with the rules or an order of the court;

3. Rule 280 permits the making of an order dismissing the proceeding if a plaintiff or applicant fails to take a step required by the rules or fails to comply with an order of the court within a stated time;

4. Rule 371(2) restates the longstanding power of the court to set aside all or part of a proceeding if there has been a failure to comply with the rules, at the same time recognising that a failure to comply with the rules is an irregularity only.

15. A decision of this court in 1998, Cooper v Hopgood & Ganim,^[2] recognised that a significant change had occurred in the approach of courts towards applications for dismissal since the time of Birkett v James.^[3]  The court emphasised the uncircumscribed nature of the discretion that should be exercised.  That decision, however, was made under the previous regime of the Rules of Supreme Court.^[4]  Whilst a “change in culture” was identified, particularly in the reasons of Pincus JA, that decision does not deal with the position under the rules now in force.  Indeed, no decision was referred to us in which this court has had to consider the effect of the current rules on an application for dismissal.

16. It is convenient to state the relevant facts and circumstances before returning to the principles that are to be applied in the light of the current rules.

17. The appellant's action is for damages for defamation. According to the statement of claim he is a valuer who prepared a valuation in 1988 of a property near Coffs Harbour. The defendants are the Australian Institute of Valuers and Land Administrators Incorporated and Mr Rothwell who was at material times one of its officers. The Institute’s functions include those of representing and setting the standards of valuers in Australia. The defamation complained of consists of certain statements made by Mr Rothwell to Mr Margan, an ABC interviewer. In the course of the interview Mr Rothwell made very unfavourable remarks concerning the 1988 valuation and how it was made. The interview was said to have been republished by the ABC in New South Wales on 16 October 1990 and in Queensland on 17 October 1990. The claim includes a substantial claim for damages for economic loss.

18. The proceedings were commenced very quickly (22 October 1990) but progressed very slowly. On 24 August 1994, on the respondent's application, the statement of claim was struck out, but leave was obtained to deliver an amended statement of claim. Further jousting concerning pleadings ensued, with the final document, an “amended, amended, amended statement of claim” finally being delivered on 1 March 2000. The amended defence of the defendants raises multiple issues including denial of defamation, an allegation that the words were spoken under circumstances when the plaintiff was not likely to be injured thereby, assertion that the words were an accurate statement of fact and opinion, publication in good faith and in the public interest (and associated defences), fair comment on a matter of public interest and other qualified privilege defences. The pleadings are complete and apparently in a state ready for trial.

19. It is not necessary to list a chronology of the steps that have been taken. Discovery was made, but as recent events have revealed, it was far from complete in relation to matters potentially relevant to damages. The learned judge below noted that the action went to sleep and was not revived until 9 April 1997 when an order was made that the plaintiff (appellant) deliver further and better particulars and answers to interrogatories. He failed to deliver the necessary documents within the stated time, and on 30 May 1997 a guillotine order was made. On 27 June 1997, one day before that order was due to operate, the further and better particulars and answers to interrogatories were provided.

20. His Honour stated that there was again “a long gap so far as the court is concerned until 9 February 2000 when there was a consent order in relation to amended pleadings and delivery of expert reports”. However, some mutual activity may be inferred. The court was informed that the parties agreed to dispense with a certificate of readiness for trial, and directions were obtained with the consent of both parties. Instead of taking out such an order, a certificate of readiness was signed on behalf of all parties in May 1999.

21. The appellant then obtained an expert report from Messrs Hall Chadwick (dated 1 March 2000) supporting a substantial claim by the appellant for economic loss, and sent it to the respondents’ solicitors. Inter alia it referred to amended financial statements and income tax returns. The respondents’ solicitors then realised that numerous relevant documents must exist which the appellant had failed to disclose, and demanded their disclosure. On 5 June 2000 the appellant’s solicitors provided a schedule of source documents used by Hall Chadwick and stated that this finalised their client's disclosure of financial items. There followed correspondence between the solicitors in which the respondents’ solicitors sought further disclosure. Little was achieved, and in particular even the tax returns of the appellant remained undiscovered. On 10 August 2000 the respondents filed and served an application which sought dismissal of the action and alternatively an order for disclosure of certain documents specified in an affidavit of the respondents' solicitor.

22. When the matter came on before Douglas J on 22 August 2000 his Honour directed full and proper disclosure (pursuant to rule 214) of the appellant's documents by 28 August, and adjourned the application to a date after that. The appellant delivered an amended supplementary list of documents on 28 August, but the respondents decided to pursue their application for dismissal. On the following day, 29 August 2000, the matter was brought on before his Honour who ordered dismissal on both grounds mentioned in the application, namely, lack of expeditious prosecution and the appellant's failure to comply with the rules in relation to disclosure.

23. Dismissal on the latter ground seems a little curious, as his Honour noted that the order for disclosure made on 22 August 2000 had been “complied with”. His Honour seems to have been influenced by what he regarded as past conduct of the appellant which showed a “disregard of the rules and non-compliance with orders”. His Honour added, “it is not now to the point for the court to be invited to guess whether or not the plaintiff has now disclosed all documents which are now in his possession”. Perhaps that was the expression of a suspicion that in the light of past conduct one could not be confident that full disclosure had been made even now. But such speculation, with respect, is not helpful. The position was that the appellant had apparently complied with the latest order for disclosure, and no finding was made of default in performance of the order that had been made on 22 August.

Principles relevant to dismissal

24. There is a distinction between the setting aside of a proceeding for a specific non-compliance and a dismissal for want of prosecution. The dismissal of an action or proceeding because of non-compliance with a rule or a court direction has long been authorised by particular rules of court, as has the power to set aside proceedings, such as that recognised in the former Order 93 rule 17. The powers of dismissal for abuse of process and for want of prosecution have generally been regarded as recognition of a wider inherent power.^[5]  In an appropriate case a guillotine order might be made with the objective of providing a recalcitrant party with added incentive to comply with directions, although some restraint was thought desirable in the peremptory making of such an order when a party might be in difficulty in performing within the prescribed time, or when the issues were not clear cut.^[6]  Repeated non-compliance with the rules or directions thereunder was sometimes regarded as evidence of “contumelious disregard”^[7] of the rules and therefore as relevant to the exercise of a court's discretion to dismiss for want of prosecution or to excuse delay.

25. In the present case the plaintiff's action was dismissed at a time when he was not shown to have been in default of any rule of court or direction of the court, and I have some difficulty in thinking that such a dismissal could be justified on the ground of non-compliance with an order. I shall return to this point, but it seems desirable that the case be considered firstly on the point as to whether the order may be justified as a dismissal for want of prosecution.

26. The power of the Supreme Court of Queensland to make such an order has been regarded as an aspect of the inherent power of that court in the control of its own process, although as McPherson JA pointed out in Cooper v Hopgood & Ganim,^[8] the position in Queensland was affected by Order 90 rule 9 which, in certain circumstances automatically removed the right of a dilatory plaintiff to proceed further unless the leave of the court were obtained.  The approach of the Supreme Court to such contests was expressed, with some variation, in a series of cases.^[9]  In the earlier decisions the importance of a satisfactory explanation for the delay featured prominently, but by the time of Wilson v Bynon (1984) it was recognised that reasonable excuse for the delay was not a condition precedent to a grant of leave to proceed, and a greater focus was placed upon the existence of material prejudice to the other party by permitting the action to proceed.  Further, the undesirability of fettering the discretion with rigid formulae was recognised.^[10] 

27. A list of potentially relevant factors appears in McPherson JA's reasons in Cooper v Hopgood & Ganim in a passage that deserves repetition here:

“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 probable 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 underestimated.”^[11]

28. It is a noteworthy feature of recent cases that courts appear more ready than before to infer that substantial delays will substantially reduce the chance of a fair trial. Such an approach has no doubt been influenced by the eloquent statement of McHugh J in Brisbane South Regional Health Authority v Taylor^[12] concerning the prejudice that delay produces whether or not the actual prejudice can be clearly articulated.  The present approach has also been influenced, I think, by a change in attitude which is reflected in and encouraged by the additional provisions now contained in the Uniform Civil Procedure Rules.  Recently Gleeson CJ expressed, in an out of court statement, his perception of what I understand to have been referred to in Cooper v Hopgood & Ganim^[13] as a change in attitude since Birkett v James:

“The pressure of business before the courts, and the necessity to respond to demands for judicial involvement in case management, has resulted in the acceptance by judges of responsibilities of a kind their predecessors never acknowledged.  Forty, and even fifteen, years ago, it was not regarded as part of the role of a judge to manage the progress of cases towards readiness for trial, and judges were discouraged from undue intervention in the progress of cases during trial.  As a rule, it was up to the parties and their lawyers to prepare cases for hearing, in such manner, and at such speed, as they desired.  Interlocutory proceedings were available if one party sought judicial intervention for a special purpose.  But, ordinarily, the role of a judge was to deal with cases once they had reached the head of a queue.  And in dealing with a case which came on for trial, the judge assumed a relatively passive role.  Things are different now.  Courts are expected to manage their lists actively, and trial judges are expected to adopt a role most of their predecessors would have regarded as inappropriately interventionist.”^[14]

29. There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended.  At the same time the rules of court are not an end in themselves.  They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences.  The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules.  The present respondents, like the appellant, appear to have been content over very lengthy periods to allow the action to go to sleep.

30. On my reading, the combination of rules 5, 280 and 371 of the UCPR re-affirm the Supreme Court's longstanding powers of dismissal. Now the powers expressly mentioned in those rules have also been conferred on the District Court and Magistrates Court.^[15]  Although this court's inherent power remains, these rules are a sufficient starting point in the determination of such applications.  Rule 280 is an express and untrammelled statement of the power of all three courts in Queensland to dismiss a proceeding for want of prosecution.  Subject to what is said below, the wide-ranging factors that have been identified as potentially relevant to such applications, such as those mentioned in Cooper v Hopgood & Ganim, will continue to guide courts in exercising the power.  In addition, rule 5 gives express recognition to the importance of expeditious resolution of issues in proceedings.  In my view the nature of the power of this court has not been altered, but the rules are a clear indication of the change in attitude that has independently taken place in courts throughout Australia.  They suggest that courts will now be less tolerant of delay and that the expedition of proceedings should be encouraged to a greater extent than was formerly the case.

The present matter 

31. As already indicated there was no finding that the appellant is currently in breach of any court order or rule of court, and the history of the proceedings could not justify a dismissal based on repeated flouting of rules.

32. In the end, his Honour’s dismissal for want of prosecution seems to have been based on the conclusion that a fair trial could not now be had now in relation to a matter which occurred so long ago. However, the precise basis of that conclusion is not clear, other than the general adverse effect of delay recognised in McHugh J’s judgment in Brisbane South Regional Health Authority v Taylor.^[16] 

33. When one examines the specifics of the present case it is clear that there are tapes and transcripts of the interview in which the alleged defamation was spoken. The subject matter of the interview concerns the propriety of a written valuation prepared by the appellant and it would seem that this can still be appropriately assessed. His Honour seems to have placed some reliance on the fact that an expert witness (Mr Ellis), who had expressed an opinion on that valuation, had recently died. But it is not suggested that Mr Ellis had any knowledge that is not available to another expert, or had any intrinsic advantage in assessing the quality of the relevant valuation. Indeed, the respondents’ solicitors’ affidavit complains merely of the fact that Mr Ellis’ death has required them to instruct another valuer to prepare a critique of the valuation “at significant expense to them”. Such a matter may be catered for by an appropriate order in costs, rather than by dismissal of a claim. Further, no material was filed to suggest that Mr Rothwell or any other witness will be unable to give evidence or will be seriously disadvantaged, or that there is any lack of statements from material witnesses. Indeed, there is very little to justify a finding of disadvantage or inability to have a fair trial other than the general disadvantage which may affect the memories of witnesses through a delay in the region of 10 years. Despite the persuasiveness of the passage commonly relied on in Brisbane South Regional Health Authority v Taylor, I do not think that the force of the statement ought to be elevated into an arbitrary rule that no fair trial can be had whenever there has been a very substantial delay.  A closer examination of the specific circumstances of the particular action is necessary.

34. In this case it is difficult to think that a fair trial could not be had on the primary issue of liability, which revolves around the issues concerning defamation, publication, the occasion, the subject to which it related, and the defences that have been pleaded. The only arguable area concerns the proof (or disproof) of damages. In the end Mr Applegarth, for the respondents, submitted that the essential prejudice upon which he relied was a loss of ability effectively to cross-examine the plaintiff on his loss of income resulting from the defamation. This prejudice, he submitted, results from the non-disclosure of sufficient financial documents to enable the nature of the appellant’s business to be assessed, and the effect, if any, of the alleged defamation to be calculated. It seems that some invoices have been lost or destroyed, there are no records of some expenditures, and that some of the computer disks relating to clients’ files present problems of access. The appellant seems not to have kept orderly books of account and there is reason to think that it will be difficult to obtain a clear picture of his business before and after the alleged defamation. Although this supports the respondents’ submission, it is not a rare phenomenon, and it may be turned to the appellant's disadvantage. It is part of the appellant’s claim that at the time of the interview he was a member of the valuation panels of five named banks and that very soon after publication he was removed from four of them and removed from the fifth within 12 months. These allegations may still be properly checked. The central documents now available seem to be the appellant's tax returns and their associated profit and loss statements. These have been belatedly produced. Whilst the appellant’s disregard of the rules of disclosure deserves censure it does not follow that a fair trial may not be had in due course.

35. His Honour referred to submissions that the appellant's delay had been “intentional” and contumelious and observed that his conduct of the action “suggests an apparent indifference for any need for vindication of his reputation”. However, the primary function of courts is to hear and determine disputes between parties. The main factor in the present case is whether a fair trial may still be had, and on balance I think it may. In this case the dismissal was ordered at a time when it would seem that the parties (particularly the plaintiff) were close to being ready for trial. In those circumstances, before dismissal would be justified there would need to be a stronger case of flouting the rules than that which may be here discerned.

36. In my view the discretion available to the learned judge in this matter miscarried. In determining that a fair trial could not be had, his Honour erred in taking into account the death of Mr Ellis, and in my view placed too much store by the mere passage of time rather than upon the capacity of the parties to proceed to deal with the issues at trial. Moreover, I do not think that in the circumstances of this particular case all the blame for the long delay should be attributed to the appellant. The present case is an example of a defendant moving to dismiss an action at the last minute by which time the plaintiff is on the verge of being able to bring the matter to trial, and in which he is not shown to be currently in breach of any order.

Orders

37. Counsel have agreed that in the event that the appeal is allowed, the defendants should have the opportunity of bringing back on the original application in relation to any inadequacy of the appellant's response to the order for disclosure made on 22 August 2000.

38. I would make the following orders:

1. Allow the appeal with costs;

2. Set aside the order of 30 August 2000; and replace it with an order –

1. That the application for dismissal be dismissed;

2. That the application for further disclosure be adjourned to a date to be fixed; and

3. That the costs of and incidental to the application be costs in the cause.

39. MACKENZIE J:  Thomas JA’s analysis of the principles relating generally to dismissal of an action and of their application to the facts of the present matter, with which I agree, make it unnecessary for me to deal extensively with those issues.  I wish to add only the following comments.

40. More than 10 years is a long time for a trial, especially one intended to establish that the plaintiff's reputation was unlawfully damaged by the defendants, to come to a conclusion. There have been problems, especially with getting the pleadings in order and disclosure, which have contributed to the delay. However, in the end the present appeal arises from an order made in the context of the parties having believed that the matter was ready to be set down for trial prior to the issue relating to further disclosure emerging from an expert report on the issue of damages and at a time when a recent order for further disclosure in consequence had been complied with, subject to any further deficiency which may become apparent.

41. The matter seems likely to proceed to trial on the basis that supporting evidence of loss of income will be less than comprehensive, with the result that any opinion expressed as to loss will be subject to that criticism.

42. As a jury trial has been asked for by the plaintiff, it will be important to ensure that the jury be given clear directions that the plaintiff has the onus of proving loss and as to the effect of the lack of supporting documentation on the reliability of opinion evidence of its extent. A significant element in assessment of damages in this particular case is that the plaintiff alleges he lost appointments as a valuation panel member for various financial institutions because of the publication. If that is correct there will be at least some benchmark for calculating loss, unlike in a case where the computation depends solely on more intangible factors.

43. The case is also not obviously one where recollections of parties of matters of detail will assume paramount importance. I agree with what Thomas JA has said about the factor referred to in Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541, 551-2. 

44. The death of a valuer who had done a report in connection with the valuation in respect of which the alleged defamatory remarks were made is not of critical importance either. It is not a case where there is evidence that the valuer had a peculiar advantage, eg by possession of detailed local knowledge, or otherwise, in determining the quality of the valuation which is the subject of the proceedings. Indeed, the main complaint seems to be that the need to employ another valuer has increased the defendants’ costs of defending the claim.

45. In my view, the factors mentioned above do not, standing alone or in combination, provide a sufficient basis for holding that a fair trial cannot be held in all of the circumstances. It is accepted that an appellate court should be circumspect about interfering with the exercise of a discretion in this kind of matter. However, in my view, for the reasons developed by Thomas JA and above in my reasons, the orders should be as proposed by Thomas JA.