Lu v Fenson Legal Pty Ltd[2025] QCA 165

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  The applicant seeks leave to appeal from orders made by the primary judge in the District Court dismissing a claim for want of prosecution.  The applicant contends the primary judge ought to have allowed the applicant’s cross-application for leave to proceed.
2. [2]
   For more than 25 years, decisions of this Court have concluded that the exercise of the judicial power under present consideration involved an exercise of a judicial discretion after an evaluative judgement of the particular circumstances of the case and, accordingly, on appeal, the standard of appellate review was the House v The King standard.^[1]
3. [3]
   However, since the decisions of the High Court of Australia in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore^[2] and in Moore (a pseudonym) v The King,^[3] that manner of reasoning can no longer be regarded as a proper justification for reaching a conclusion as to the applicable standard of appellate review.
4. [4]
   In Moore, the unanimous judgment of Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ, expressed the position in this way:

“The basis for intervention identified in House v The King was expressed to be dependent upon the subject matter of the appeal, being the exercise of a judicial ‘discretion’. House v The King was an appeal against the imposition of a sentence of three months imprisonment for an offence under the Bankruptcy Act 1924 (Cth). While what constitutes a ‘discretionary decision’ in this context can be ambiguous, in essence it refers to the circumstance where the decision maker is allowed ‘some latitude as to the choice of the decision to be made’. A determination of which standard of review is applicable does not depend on whether the reasoning to be applied is evaluative or in respect of which reasonable minds may differ. Instead, the determination turns on whether the legal criterion to be applied ‘demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies’.”^[4]  (Footnotes omitted, emphasis added)

5. [5]
   Where the source of the judicial power under consideration is statutory, the determination to which the High Court refers turns on the proper construction of the statute conferring the power, that instrument being the source of the legal criterion to be applied.^[5]  No different approach is to be taken when the source of power is the Uniform Civil Procedure Rules (UCPR), those rules being a form of statutory instrument authorised by s 85 of the Supreme Court of Queensland Act 1991.^[6]
6. [6]
   The present respondents founded their application for dismissal on UCPR r 280, s 22 of the Civil Proceedings Act 2011 (Qld) and further or alternatively on the inherent jurisdiction of the District Court.  The applicant founded the cross application for leave to proceed on UCPR r 389(2).
7. [7]
   Section 22 of the Civil Proceedings Act 2011 confers a power on the District Court and on the Magistrates Court, noting that the Supreme Court has an inherent power to dismiss for want of prosecution.  Accordingly, the respondents’ reliance on an inherent jurisdiction of the District Court was misplaced.  Section 22 simply provides that, if two years have passed since the last step in the proceeding, “the court may dismiss the proceeding”.  Pursuant to s 14, the court could impose on an order such conditions as it considered appropriate.  The purpose of the conferral of the power must be to complement the District Court’s existing powers to do justice according to law in cases which are within its jurisdiction.
8. [8]
   UCPR r 280 is similarly structured: once specified factual preconditions are met, a respondent is permitted to apply for dismissal and “[t]he court may dismiss the proceeding or make another order it considers appropriate”.  Of course, the latter words merely repeat the breadth of power which the court always has on applications concerning practice and procedure, namely that pursuant to r 367, the Court “… may make any order or direction about the conduct of a proceeding it considers appropriate …” in the interests of justice.  UCPR r 389(2) merely empowers the Court to make an order relieving a litigant from the prohibition against taking a new step if no steps have been taken for 2 years from the last step.
9. [9]
   Importantly, the UCPR contemplate that any exercise of power pursuant to its terms would be exercised consistently with the philosophy stated in r 5:

“5 Philosophy—overriding obligations of parties and court

1. 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.

2. Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.

3. In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.

4. The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.

Example—

The court may dismiss a proceeding or impose a sanction as to costs, if, in breach of the implied undertaking, a plaintiff fails to proceed as required by these rules or an order of the court.”

10. [10]
    The determination which the application and cross-application required of the primary judge necessitated that he would consider, to the extent relevant, the range of potentially competing factors helpfully enumerated in Tyler v Custom Credit Corp Ltd.^[7]  None of the sources of judicial power specifies any particular legal criterion to be applied.  To the contrary, the powers were left to be exercised judicially and for the broadly expressed purposes for which they were conferred.  The decision required of the primary judge was not merely a binary choice between dismissal or leave to proceed.  The primary judge was empowered to consider whether any other order was more apposite to achieving that broadly expressed purpose.
11. [11]
    One could not say of the judicial power to be exercised by the primary judge that it could only be correctly exercised in one way.  The law governing its exercise tolerated a range of outcomes, all of which could reflect a legally correct exercise of judicial power.  Accordingly, the appellate standard of review remains that specified in House v The King.
12. [12]
    On the question of the application of that standard of review to the decision made by the primary judge, I agree with Bradley J, for the reasons his Honour gives, that no reviewable error has been demonstrated by the applicant and, accordingly, the application for leave to appeal must be dismissed.
13. [13]
    BODDICE JA:  I agree with Bradley J.
14. [14]
    BRADLEY J:  The applicant is an individual who sought legal advice on a contract to purchase “off the plan” an apartment to be constructed in South Yarra, Victoria (the contract).  The first respondent (the firm) is an incorporated legal practice that provided legal advice to the applicant about the contract.  The second respondent (the principal) is a principal of the firm.
15. [15]
    On 1 April 2019, the applicant commenced a claim in the District Court seeking damages, interest and costs against the respondents.  Five and a half years later, on 23 August 2024, the District Court dismissed the applicant’s claim for want of prosecution and ordered her to pay the respondents’ costs of the proceeding.  No party had taken a step in the proceeding since 1 March 2021.
16. [16]
    The applicant seeks leave to appeal from those orders.

How the claim progressed (or did not progress) to the dismissal hearing

17. [17]
    When she began, the applicant relied on the following alleged material facts:

    1. On 2 April 2016, she attended a sales event for an apartment project, where she accepted an offer to purchase an apartment for $1.05 million and paid an initial deposit of $5,000;
    2. On or about 6 April 2016, she met in person with the principal, asked the firm to advise her about the contract, and the firm provided advice;
    3. At this meeting, after receiving the advice, the applicant signed the contract;
    4. On or about 6 April 2016, the applicant decided that she wanted to end the contract;
    5. At no time between 6 April 2016 and 11 April 2016, did the principal or the firm advise her that she was entitled to end the contract during that period^[8] (the cooling off period);
    6. The applicant did not know she was entitled to terminate the contract before the end of the cooling off period; and
    7. In failing to advise the applicant of this right, the respondents failed to provide legal services with the skill and care of a reasonable legal practitioner.
18. [18]
    In their defence filed on 10 May 2019, the respondents denied they failed to advise the applicant.  The respondents alleged that the applicant and the principal had met on 5 April 2016, and that the principal had advised the applicant about:

    1. the terms of s 31 of the Sale of Land Act 1962 (Vic);
    2. the cooling off period;
    3. the ability to exercise her right to terminate the contract during the cooling off period that would end on 8 April 2016; and
    4. it being unlikely the applicant would have any other right to terminate the contract because the contract was not subject to finance, the sunset date was unlikely to expire before settlement became due, and it was very unlikely there would be a variation in the construction of the apartment that would give the applicant a right to terminate.
19. [19]
    In her reply filed on 29 May 2019, the applicant denied or joined issue with the respondents on each of these allegations.
20. [20]
    In their defence, the respondents also alleged that:

    1. The applicant obtained a bank guarantee dated 6 April 2016 for the balance of the deposit due under the contract and on 7 April 2016 forwarded a copy of the guarantee to the real estate agent who had invited her to the sales event;
    2. Between 6 and 8 April 2016, the applicant did not contact the respondents about terminating the contract; and
    3. By 20 May 2016, the applicant had engaged other solicitors to deal with the vendor on her behalf in respect of the contract.
21. [21]
    In her reply, the applicant admitted each of these allegations.
22. [22]
    On 25 June 2019, the respondents made disclosure of documents.  Although the respondents sought disclosure from the applicant, she never made disclosure in the proceeding.
23. [23]
    Between 20 September 2019 (when the respondents amended their defence) and 29 October 2020 (when the applicant amended her statement of claim), no step was taken in the proceeding; a period of about 13 months.
24. [24]
    Between 29 October 2020 and 1 February 2021: the respondents filed their amended defence; and the applicant filed her amended reply.  Neither made any substantial change to the matters in issue.
25. [25]
    On 1 March 2021, the respondents made more disclosure.  This was the last step taken by any party in the proceeding.

Consequences of delay in taking a step

26. [26]
    Rule 389 of the UCPR provides:

“389 Continuation of proceeding after delay

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.”

27. [27]
    From 1 March 2022, when no step had been taken in the proceeding for one year, neither the applicant nor the respondents could take a step without giving the other party a month’s notice.  From 1 March 2023, when no step has been taken in the proceeding for two years, no party could take a step without an order of the Court.

The application to dismiss the proceeding for want of prosecution

28. [28]
    On 10 July 2024, the respondents gave the applicant notice of their intention to apply for the dismissal of the proceeding for want of prosecution under r 5 and r 280(1).  Their notice was in a solicitors’ letter that set out in detail the statutory provisions, the history of the proceeding, the correspondence, and the submissions they would make about the applicant’s delay.  By then, more than three years had passed since the last step had been taken in the proceeding.  The letter invited the applicant to discontinue the proceeding or explain why it should not be dismissed for want of prosecution, within 21 days.
29. [29]
    The applicant responded to the respondents’ letter by an email sent the same day.  The response was that the proceeding would not be discontinued.  The response did not include any explanation.
30. [30]
    On 2 August 2024, the respondents applied to dismiss the proceeding.  They had waited 21 days, in case the applicant discontinued or explained.  She did not.  The registry fixed a hearing date of 23 August 2024.
31. [31]
    The application was made under s 22 of the Civil Proceedings Act 2011 (Qld) (CPA), which provides:

“22 Dismissal of proceedings for want of prosecution

1. This section applies to the District Court and Magistrates Courts.

Note—

The Supreme Court has inherent power to dismiss proceedings for want of prosecution.

2. If 2 years have passed since the last step was taken in a proceeding, the court may dismiss the proceeding.

3. For this section, an application on which no order was made is taken not to be a step.”

32. [32]
    On 22 August 2024, the applicant filed an application for leave to proceed under r 389(2).  This was the day before the hearing.  Her solicitor made and filed two affidavits deposing, on information from the applicant and belief, that the applicant had not “acted to progress this proceeding from June 2022 until … October 2023” due to the progress of the applicant’s complaint to the Legal Services Commissioner (LSC) about the principal made on 20 January 2020, and “medical emergencies suffered by her mother and intense caring duties she has had to undertake” for her mother since November 2022.
33. [33]
    In written submissions of the same date, the applicant’s counsel identified the same “two reasons for delay” to which the solicitor had deposed.  These were “ongoing disciplinary proceedings” by the LSC against the principal, and “ever increasing medical emergencies of her mother”.
34. [34]
    The applicant’s solicitor also deposed that the applicant was seeking to serve a further amended statement of claim, settled by counsel.  He exhibited a copy.
35. [35]
    By the proposed further amended statement of claim, the applicant would pursue a substantially different case against the respondents.  She would:

    1. Abandon the allegation that she did not know she was entitled to terminate the contract at any time before the cooling off period expired;
    2. Accept that the principal gave her advice about the cooling off period:
    3. Allege that the principal gave her this advice in a telephone conversation on 6 April 2016, separately from her in person meeting with the principal;
    4. Allege that the advice was inaccurate because it referred to a five-day cooling off period commencing when she received the contract executed by the vendor;
    5. Abandon the allegation that on or about 6 April 2016 she decided she wanted to end the contract;
    6. Allege that the principal did not give her a vendor’s statement (within the meaning of s 32 of the Sale of Land Act 1962); and
    7. Allege that, had the respondents advised her on 5 April 2016 of the effect of the vendor’s statement and of the cooling off period, and had she undertaken market research on apartments for sale in Melbourne, she would have decided she wanted to end the contract.
36. [36]
    On 23 August 2024, after hearing counsel for the parties, the learned primary judge dismissed the applicant’s claim and ordered her to pay the respondents’ costs of the proceeding.  By then, nearly three and a half years had passed since any step had been taken in the proceeding.

The proposed ground of appeal

37. [37]
    The applicant’s proposed notice of appeal would raise only one ground, namely “Error in the exercise of the discretion.”  This accords with the written reasons the applicant contended would justify this Court granting her leave to appeal, namely an alleged error by the primary judge:

“in exercising [the] discretion in that [his Honour] did not accord sufficient weight to the fact that the [applicant] had to attend to her aged and ailing mother between November 2022 until June 2024, which caused the delay in taking further steps in the proceeding.”

The applicant’s outline of argument for the appeal

38. [38]
    The applicant’s outline proceeded on the basis that the learned primary judge’s decision was discretionary.  The applicant contended that the primary judge “misapplied and ignored relevant and proper considerations”, which were said to be those set out by this Court in Tyler v Custom Credit Corp Ltd^[9] (Tyler).  Of the various specific considerations mentioned in Tyler, the applicant made detailed submissions about whether the litigation had been characterised by periods of delay, whether there was a satisfactory explanation for the delay, and whether the delay had resulted in prejudice to the defendant.
39. [39]
    The applicant argued that:

    1. The delay had been “reasonably accounted for and explained”;
    2. The primary judge had failed to “properly or adequately consider or give weight to” certain matters;
    3. His Honour had “placed too much weight” on the “factual allegations as to conversations” and ignored “the preponderance of documentary evidence”;
    4. His Honour had “failed to properly or adequately consider and apply” the “correct principle in the exercise of discretion”, and “considerations of law and fact relevant and binding in the exercise of discretion”; and
    5. The orders were “manifestly unreasonable and unjust.”

The respondents’ outline of argument

40. [40]
    The respondents took the applicant’s case as they found it, namely a challenge to the exercise of discretion by the primary judge.  They submitted that the applicant was merely rearguing the merits of the original application on the basis that the primary judge ought to have given different weight to the relevant considerations.  Such a challenge did not identify any error of principle that would permit this Court to set aside the orders, applying the discretionary standard of review in accordance with House v The King.^[10]
41. [41]
    As may be gauged by the summary of the applicant’s proposed ground of appeal and argument at [37], [38] and [39] above, the respondents’ submission seemed correct.
42. [42]
    The respondents also identified the absence of any explanation for the applicant’s failure to take a step in the periods between 1 February 2021 and November 2022 and between August 2023 and August 2024.  These two periods totalled about two years and ten months.  The respondents also identified the evidence that supported the primary judge’s conclusion that the applicant’s explanations for her inactivity over the ten months between November 2022 and August 2023 were not satisfactory.
43. [43]
    The respondents noted that the prejudice they suffered because of the applicant’s delay was of the usual kind attributable to the deterioration in the quality of the evidence over the eight years since the alleged meeting and conversation, particularly to any recollections that were not otherwise recorded.  They also raised the undue vexation a party suffers where litigation continues for an extended period.

The standard of review of the primary judge’s decision

44. [44]
    In advance of the hearing, the Court invited the parties to make submissions about the nature of the appellate review of the primary judge’s orders, in light of the decisions in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore^[11] (GLJ) and Moore (a pseudonym) v The King^[12] (Moore).
45. [45]
    In GLJ, the High Court determined that the “correctness standard”, identified in Warren v Coombes,^[13] applied for appellate review of an order “permanently staying proceedings on the ground that a trial will be necessarily unfair or so unfair or oppressive to the defendant as to constitute an abuse of process”.^[14]  The stay under review was made under the inherent jurisdiction of the New South Wales Court of Appeal.^[15]
46. [46]
    The High Court members in the majority explained that in Norbis v Norbis:^[16]

“The line separating discretionary decisions (in which appellate review is confined to the House v The King standard) and other decisions (in which the ‘correctness standard’ applies) was identified as that between questions lending ‘themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions’ in which event ‘it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance’, and questions to which there is but one legally permissible answer, even if that answer involves a value judgment.”^[17]

47. [47]
    The appeal in Norbis v Norbis was from a decision about “altering the interests of parties to a marriage”, and so it is an example of an appeal from a discretionary decision that called for “value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right”.
48. [48]
    In Moore, the High Court determined that the correctness standard applied to an appellate review of a decision not to exclude otherwise admissible hearsay evidence in a criminal proceeding on the basis that its probative value was outweighed by the danger of unfair prejudice resulting from the admission.^[18]
49. [49]
    The High Court noted that House v The King was an appeal against the imposition of a sentence of three months’ imprisonment for an offence under the Bankruptcy Act 1924 (Cth).  The discretion exercised by a sentencing judge involves an instinctive synthesis of different and sometimes competing objectives that admits of more than one legally permissible answer within a range of outcomes.
50. [50]
    The High Court then expanded on what was said by the majority in GLJ by observing:

“While what constitutes a ‘discretionary decision’ in this context can be ambiguous, in essence it refers to the circumstance where the decision maker is allowed ‘some latitude as to the choice of the decision to be made’.  A determination of which standard of review is applicable does not depend on whether the reasoning to be applied is evaluative or in respect of which reasonable minds may differ.  Instead, the determination turns on whether the legal criterion to be applied ‘demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies’.”^[19]

51. [51]
    In doing so, the High Court drew on Minister for Immigration and Border Protection v SZVFW^[20] (SZVFW) and Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission^[21] (Coal and Allied).
52. [52]
    SZVFW was an appeal from a judicial review about whether a decision-maker had exercised a statutory power unreasonably.  The High Court identified it as an example of an appeal to which the correctness standard applied.
53. [53]
    Coal and Allied was an appeal from a decision of the Full Court of the Federal Court to grant relief with respect to a decision and orders of the Full Bench of the Australian Industrial Relations Commission.  The High Court identified it as an appeal from a discretionary decision.  In it, the Full Bench had allowed an appeal from a decision and orders of a Presidential member of the Commission to terminate the bargaining period because industrial action being pursued was threatening to cause significant damage to the Australian economy or an important part of it.^[22]  The majority explained that:

“‘Discretion’ is a notion that ‘signifies a number of different legal concepts’.  In general terms, it refers to a decision-making process in which ‘no one [consideration] and no combination of [considerations] is necessarily determinative of the result’.  Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made.  The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion.  On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.”^[23]

54. [54]
    Returning to the appeal before it, the High Court continued:

“Consistent with this approach, in R v Bauer (a pseudonym) this Court observed that an assessment of whether tendency evidence has ‘significant probative value’ for the purposes of s 97(1)(b) of the Evidence Act is ‘one to which there can only ever be one correct answer’, although ‘reasonable minds may sometimes differ’ about that answer.  Thus it is for the appellate court to determine whether the evidence meets that threshold, rather than deciding whether it was ‘open to the trial judge’ to reach that conclusion.”^[24]

The applicant’s submissions on the standard of review

55. [55]
    For the applicant in the present appeal, it was submitted that the decision of the primary judge to dismiss the proceeding for want of prosecution was a discretionary decision to which an appellate court should apply the correctness standard of review.

The respondents’ submissions on the standard of review

56. [56]
    For the respondents, it was submitted that the primary judge’s decision was a discretionary one to which the Court should apply the traditional principles in House v The King.
57. [57]
    The respondents identified that if the precondition in s 22(2) of the Civil Proceedings Act 2011 (Qld) was met – that two years have passed since the last step was taken in the proceeding – then the primary judge was able to dismiss the proceeding.  They submitted that, once this circumstance was established, his Honour was exercising a “full judicial discretion”.  In doing so, the primary judge was “not fettered by rigid rules” and was to “take into account all of the relevant circumstances” of the case, including, without limitation, the 12 factors itemised by the Court in Tyler at [2] and:

“the consideration 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.”

58. [58]
    The respondents submitted that in deciding an application to dismiss under s 22(2), the District Court could correctly evaluate the relevant circumstances and reach different legally permissible conclusions on whether to strike out the proceeding.  The absence of rigid rules and the range of relevant considerations meant there was more than one permissible answer.  So that, in some circumstances, the District Court could decide to strike out a proceeding or not to do so and instead grant leave to proceed.
59. [59]
    Such a decision was said to be analogous to a decision to grant or refuse leave to amend a pleading under r 375(1), which includes no specific criteria.  Perhaps another analogy, adopting the respondents’ view, would be a decision to grant or refuse leave to replead, after striking out a pleading or part of a pleading, under r 171, which sets out a wide range of circumstances when such an order may be sought.  These also have in common their nature as matters of practice and procedure.
60. [60]
    The respondents relied on the decision of this Court in Cooper v Hopgood & Ganim (Cooper).^[25]  The application in Cooper was made under the inherent jurisdiction of the Court and O 31 r 1 of the former Rules of the Supreme Court (RSC).  The latter rule operated when a plaintiff failed to deliver a statement of claim within the time allowed.  In Cooper, the plaintiff had made three attempts to plead in almost three years since the writ had been issued.  Like Tyler, the Cooper decision preceded the decisions in GLJ and Moore by over 20 years.  Some caution is necessary in applying the Court’s reasoning, now that the High Court has explained the difference between decisions to be assessed on the correctness standard and those on the House v The King standard.
61. [61]
    In Cooper, Pincus JA assumed the House v The King standard should be applied.^[26]  His Honour’s reasons expressly adopted the approach of Walsh J in Witten v Lombard Australia Ltd,^[27] that:

“care must be taken to ensure that a discretionary power is not trammelled by set rules, by means of which one conclusion is to be automatically reached, regardless of other factors in the case which may point to the opposite conclusion.”

62. [62]
    His Honour also quoted the following passage from the reasons of Moffitt P in Stollznow v Calvert:

“Everything must depend upon the circumstances disclosed in each particular case.  It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory.  It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay.  When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised.

… There is a tendency to propound rules which are to govern the exercise of the discretion in the sense that it will be fettered by them.  It is entirely proper that, in the exercise of a judicial discretion, guidance should be sought and obtained from decided cases of a similar kind, but I think that care must be taken to ensure that a discretionary power is not trammelled by set rules, by means of which one conclusion is to be automatically reached, regardless of other factors in the case which may point to the opposite conclusion.”^[28]

63. [63]
    McPherson JA concurred in dismissing the appeal in Cooper.  In separate reasons, his Honour drew attention to O 90 r 9 of the RSC, the predecessor of r 389:

“Order 90 r. 9 serves to prevent a step from being taken without an order of the Court or a Judge when three years^[29] have elapsed from the time when the last proceeding was taken in an action. It is a rule peculiar to Queensland, although, as can be seen from William Crosby & Co. Pty Ltd v. Commonwealth, it has or had an analogue in the High Court Rules. It operates without the need for any affirmative step to be taken to have the action dismissed. Having operated in that way, the action becomes subject to what is, in effect, an automatic stay unless on application under the rule leave is granted to proceed with the action. If leave is not sought and granted, the action may be struck out in reliance on other provisions in the Rules, such as O. 39 r. 15 [dismiss for want of prosecution for failure to give a notice of trial], or O. 39 r. 30A(8) [dismiss for want of prosecution for failure to sign a certificate of readiness for trial], or, as in this case, O. 31 r. 1 [dismiss for want of prosecution for failure to deliver a statement of claim]; or under the Court’s inherent power to dismiss for want of prosecution. Even without applying to have it dismissed, the action is simply left to expire of its own inanition.

What has been said shows that the structure of the relevant procedural regime in Queensland differs, in some respects widely, from that in other Australian States and in England. Although there are points of identity, the provisions and effect of O. 90 r. 9 are sufficiently specific and special to make the underlying basis of the reasoning in Birkett v. James not altogether relevant to proceedings in Queensland. Even if it were otherwise, I would not be prepared to regard what was said by their Lordships in that case as laying down particular rules controlling the decision of whether to dismiss an action for want of prosecution. The power so to dismiss is one that is confined to a judicial discretion, and, for that if no other reason, is incapable of being exhaustively defined or delimited in a detailed and binding fashion. Birkett v. James^[[30]] 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 no 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.”^[31]

64. [64]
    After Cooper, a moving party did not have to show intentional and contumelious default or inordinate and inexcusable delay as well as either a substantial risk there will not be a fair trial or likely serious prejudice to the defendant.  This parting of the ways between the courts of this State and the courts of England and Wales has been mirrored in New South Wales^[32] and Western Australia.^[33]
65. [65]
    Cooper was applied in GWA Pty Ltd v Russo,^[34] an appeal from a refusal of leave to proceed under r 389(2) and dismissal for want of prosecution under the equivalent provision in the Supreme Court of Queensland Act, determined on the basis that the decision at first instance involved:

“the exercise of a judicial discretion on a matter of practice and procedure, which, as such, is not lightly interfered with on appeal unless some material error in the reasoning is demonstrated”.^[35]

66. [66]
    It was applied in Jenkins v Martin.^[36]  Most recently, in R v Templeton this Court applied the reasoning in Cooper to the dismissal of an application for leave to appeal against sentence.^[37]
67. [67]
    The explanation of prejudice articulated by McPherson JA in Cooper has been endorsed by this Court in Evans v Speakman.^[38]  It has been embraced as a felicitous explanation of the correct approach to the exercise of discretion to extend the period in which the DPP must present an indictment.^[39]
68. [68]
    Since Cooper and its analogues in other jurisdictions, there has been a separation between dismissal for want of prosecution and orders made to prevent continuation of a proceeding on the ground it would be an abuse of process.  The application before the primary judge did not require his Honour to decide whether the proceeding was an abuse of process; a finding to which the correctness standard undoubtedly would apply on appellate review.
69. [69]
    As the majority in GLJ explained:

“The extreme step of the grant of a permanent stay of proceedings demands recognition that the questions whether a trial will be necessarily unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process each admit of but one uniquely right answer … Every case in which a fair trial cannot be held will also involve such unfairness to or oppression of a defendant as to constitute an abuse of process.  But such unfairness to or oppression of a defendant as to constitute an abuse of process may exist even if a fair trial can be held.  In both cases, while the answer to each question involves an evaluative process, the law tolerates but one correct answer.

… A trial which will be necessarily unfair or which acts as an instrument of unfairness and oppression to a defendant cannot yield a legitimate verdict within that system and thereby the holding of the trial and rendering of a verdict will bring the administration of justice into disrepute.  The doctrine of abuse of process is one element in a court’s armoury to protect the administration of justice, but it is to be understood as a measure of last resort to be exercised only in exceptional circumstances.”^[40]

70. [70]
    In GLJ, the plaintiff had not delayed or failed to take a step in the proceeding.  The proceeding was not the subject of a statutory stay under r 389.  The defendant brought the permanent stay application about six months after filing its defence, and within ten months of the plaintiff commencing the claim.  The unfairness and oppression were said to arise because the material facts were alleged to have occurred more than 50 years before the plaintiff filed her statement of claim.
71. [71]
    Since the hearing of this appeal, the High Court has followed SZVFW in KMD v CEO (Department of Health NT)^[41] (KMD) in finding that the correctness standard applies to an appellate review of a primary judge’s decision on whether the safety of the supervised person or the public will be seriously at risk if the person is released on a Non-Custodial Supervision Order under s 43ZH(2) of the Criminal Code Act 1983 (NT).^[42]  In separate reasons, Jagot J explained that:

“while the CEO (Health) may appeal … based on the CEO (Health)’s evaluation of the broadly expressed criteria …, on completing a review of a custodial supervision order … the Court is faced with two binary options as specified in s 43ZH(2)(a) and (b) [to vary the supervision order to a non-custodial supervision order or to confirm the custodial supervision order].  The Court must take one or other option.  The option it takes, moreover, is not discretionary — it is dictated by the state of satisfaction it has or has not reached.  It follows that the correctness standard applies to a conclusion of an error by a primary judge in an appeal to the Court of Criminal Appeal in respect of the application of s 43ZH(2)(a) or (b) of the NT Criminal Code, not the House v The King standard applicable to discretionary decisions.”^[43]

72. [72]
    Of the many relevant considerations for a decision to dismiss a proceeding for want of prosecution under s 22 or to grant leave to proceed under r 389, only one has a link to orders permanently staying a proceeding as an abuse of process.  That is prejudice to the defendant due to a delay.
73. [73]
    Writing for the Full Court in Dempsey v Dorber, Connolly J put it this way:

“Thus it is commonly recognised that a witness action, which depends upon the recollection of those who must swear to events and conversations, presents a situation in which the trial of the issues becomes increasingly difficult and unsatisfactory with the passing of time. This will be so, even if it is not possible to point to the unavailability, for whatever reason, of a particular witness or the loss of relevant records.”^[44]

74. [74]
    The decision in Dempsey preceded the introduction of r 5 of the UCPR.  Rule 5 has brought a different focus to expeditious resolution and a clear disapproval of undue delay.  This extends to each party in a proceeding impliedly undertaking to the court and to the other parties “to proceed in an expeditious way.”
75. [75]
    The relevant prejudice in a want of prosecution or leave to proceed application is prejudice occasioned by delay in the proceeding.  This must now be understood as prejudice caused by some apparent default in performing the implied undertaking.  It is not of prejudice of the kind that might justify the “extreme step” of a permanent stay as an abuse of process.  The correctness standard applies where the relevant prejudice arises from facts or circumstances external to the court process, such as commencing the proceeding many years after the events in issue, after the death of an important witness, or after the destruction or loss of an important document.  It has not been applied where the prejudice arises from conduct in the proceeding, such as delay after commencing the proceeding or breach by a party of an undertaking to the court.
76. [76]
    In GLJ the issue before the primary judge was: Is the proceeding an abuse of process?  In SZVFW the issue was: Did the decision-maker exercise the statutory power unreasonably?  In Moore the issue was: Did the danger of unfair prejudice outweigh the probative value of the evidence?  In R v Bauer (a pseudonym), the issue was: Did the tendency evidence have ‘significant probative value’ for the relevant purposes?  In KMD the issue was will the safety of the relevant persons be seriously at risk if the person is released?  To each there could only be one legally correct answer.
77. [77]
    In House v The King the issue was:  What sentence should be imposed for the offence?  In Norbis v Norbis the issue was: How should the interests of the parties to the marriage be altered?  In Coal and Allied, the issue was: Was the industrial action threatening to cause significant damage to the Australian economy or an important part of it?  In each of these, the relevant considerations might be said to have been “confined only by the subject matter and object of the legislation”^[45] which conferred the power to make an order.  In each, once the “threshold” for exercise of the power was met, the latitude for the decision-maker was considerable.  There was room for reasonable differences of opinion, with no particular opinion being uniquely right.
78. [78]
    As the respondents’ counsel submitted, a true discretionary decision is one where without error a judge might have come to different answers, and chooses one rather than the others.  The question does not demand a uniquely correct outcome.
79. [79]
    They submitted that a decision-maker in the position of the primary judge could have allowed the applicant a little more time to show she intended to pursue her claim in a way that would balance the ordinary prejudice to the respondents due to the applicant’s past delay.  However, they submitted, the decision made was also legally correct, because: the proceeding was already stayed by r 389; the applicant’s inaction had triggered the stay; her lack of a satisfactory explanation for the delay meant she had breached the implied undertaking in r 5; and her recent change of course increased the prejudicial effect of her earlier inaction and delay.  In this way, it was submitted, there was not only one legally correct outcome to the two applications before the primary judge.  It would follow that this Court should apply the discretionary standard in reviewing his Honour’s decision.

Conclusion of the standard of review

80. [80]
    Given the statutory context of the power exercised by the primary judge under s 22 of the CPA, including r 5 and r 389, the decision before the primary judge was properly characterised as one concerning the practice and procedure of the court about an already stayed proceeding.  There were an unconfined range of potentially relevant considerations, and scope to balance those considerations against the effects of the applicant’s past delay in the proceeding.  There was not only one legally correct outcome.  So, a review of the decision should be on the discretionary standard.

The reasons of the primary judge

81. [81]
    In succinct ex tempore reasons, given at the conclusion of the hearing, the primary judge found:

“The primary considerations that arise, it seems to me, in this case are the explanation for the delay and the consequences of that delay.  The [applicant] submits that there has been good reason shown for the delay.  The explanation offered is that the [applicant] was essentially prioritising her commitment to the care of her mother, who experienced a number of medical issues during the relevant period.  Whilst one can have some sympathy for the [applicant] in those circumstances, it is also, in my view, necessary that, having initiated legal proceedings against another citizen, that she was obliged to progress in accordance with the rules, and the overriding obligation of rule 5 in particular.  She was obliged to progress those proceedings in an expeditious way.

It is also said that the [applicant] was awaiting the outcome of a hearing in the [Legal Practitioners Tribunal] in relation to what was, by then, a proved falsity relating to two file notes which had been disclosed as part of these proceedings.  The utility of the falsity in relation to those file notes was already well-advanced, because of the proof of the fact of falsity about them.  It is, to my mind, unreasonable in the circumstances for the [applicant] to claim it necessary to await the outcome of the [Legal Practitioners Tribunal] before progressing with this litigation.

I note, in that regard, that no steps were taken by the [applicant] to in any way seek a stay of these proceedings or, indeed, seek the agreement of the [respondents] to not take issue with the delay, because of what is claimed now to have been the importance of awaiting the outcome of the [Legal Practitioners Tribunal].

Consequently, I am not satisfied that the explanation advanced is sufficient to discharge the onus upon the [applicant] in the circumstances of this case.

In relation to the question of prejudice to the [respondents], I note that there has been no specific prejudice pleaded; although, it goes without saying that proceedings that rely upon recollections will necessarily deteriorate with the passage of time, such that the quality of the evidence available to defend the proceedings will necessarily deteriorate.  I also note as well the importance that, having commenced litigation – that the Uniform Civil Procedure Rules impose an obligation on the [applicant] to proceed expeditiously.  And that really is an acknowledgment of the overriding fact that members of the community are entitled to go about their business without being subjected to undue delay and the threat of litigation hanging over their head.

The delay in this particular case has been significant.  And it is true to say that there has been a period of inaction in any meaningful sense for at least the two years, but perhaps as much as three and a half years, in the progress of these proceedings.  The explanation for that delay, as I have said, is in my view unsatisfactory.”

Conclusions on the applicant’s case on appeal

82. [82]
    The applicant did not give evidence.  Only two of her lengthy periods of inaction were the subject of hearsay explanations through her solicitor.  Those explanations lacked detail and were unpersuasive.  Caring duties that the applicant had told her solicitor were “intensive” and “ongoing”, explained her delay only until she re-engaged her solicitor in October 2023.  There was no reasonable explanation for the applicant’s delay when simply waiting for her long-standing complaint to the LSC to be heard and determined.  Nothing decided by the Tribunal could affect her claim in the District Court.
83. [83]
    A plaintiff’s explanation for the delay is important, particularly in light of r 5 and r 389.  If credible and satisfactory, the explanation would rebut the logical inference that a party who has failed to progress a claim in accordance with the rules does not genuinely intend to do so.  In the line of decisions since Cooper, all predating GLJ and Moore, courts have not disturbed first instance decisions that balance, against an absent or unsatisfactory explanation for delay, a lack of prejudice to the defendant and significant prejudice to the plaintiff.
84. [84]
    The applicant’s delays had been lengthy.  Her explanations had been late, general, and unsatisfactory.  The proceeding had been stayed by operation of r 389.  The claim she had advanced was bound to fail because the applicant would not be able to prove key material facts that, by her proposed amended pleading, she conceded were untrue.  If given leave to proceed after the long delay, the applicant proposed to substantially recast her claim.  She would rely on what she alleged was said in a telephone conversation, eight years before, which was inconsistent with her pleaded case, and which she had not previously mentioned.
85. [85]
    As noted above, the applicant’s argument in this appeal comprises complaints about the weight the primary judge gave to parts of the evidence and his Honour’s acceptance or rejection of submissions put on behalf of the parties.  There was neither an identified express legal error, nor an error that should be implied from the decision, after considering the evidence and submissions before the primary judge.
86. [86]
    The decision of the primary judge was soundly based.
87. [87]
    Furthermore, in the circumstances, were the standard of appeal one that admitted only one correct answer, it would be that the primary judge’s decision was correct.

Final disposition

88. [88]
    I would order:

1. Application for leave to appeal dismissed.
2. The applicant pay the respondents’ costs of the application.