Dodd v O'Meara[2017] QDC 226

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   In this proceeding, the plaintiff, Mr Dodd, sought damages for personal injuries which he alleged were caused by a motor vehicle accident which occurred on 26 December 2007.
2. [2]
   The trial commenced on Tuesday 29 August 2017.  Liability was not in dispute.  On Tuesday afternoon, Mr Crow QC, counsel for the defendants, commenced cross examination of Mr Dodd.  After lunch on Wednesday afternoon, I was informed by Mr Smith, counsel for Mr Dodd, that his client would not return to the witness box for further cross examination. At Mr Smith’s request, I adjourned the trial until 10 am on Thursday 30 August.
3. [3]
   On commencement of the trial on Thursday, Mr Dodd filed a notice acting in person.  He applied to adjourn the trial to allow an opportunity to obtain new representation.  He expressed dissatisfaction with the conduct of the trial by his representatives to that point.  I dismissed that application.  He then declined to continue with his case and left the Court room.  Mr Crow QC then applied, inter alia, under Rule 658(1) UCPR for the dismissal of the proceedings. I dismissed the proceedings with costs.  These are my reasons for those orders. 

Factual Background

4. [4]
   There is a common procedural history relevant to the disposition of each of those applications.
5. [5]
   As noted above, the accident occurred on 26 December 2007.  These proceedings were commenced on 22 November 2011.  The proceedings did not proceed promptly. 
6. [6]
   The material relied upon by the defendants on the applications does not narrate the whole of the history of the proceedings in detail.  However, the material discloses that the cause of the delay in the proceedings, particularly since at least August 2015 (and probably much earlier), was the failure of the plaintiff to progress his case. So much is evident from at least the following matters.
7. [7]
   On 7 November 2013, Robin QC DCJ made orders requiring the plaintiff to take various steps necessary to progress the litigation.
8. [8]
   Thereafter, from at least August 2015 the solicitors for the defendants wrote a series of letters complaining of the failure of the plaintiff to take necessary steps in the conduct of the litigation. Those complaints were formulated in a Rule 444 letter written to Mr Dodd (who was at the time acting in person, an issue to which I shall return) dated 9 June 2016.  Those complaints ultimately led an application which resulted in the orders made by Reid DCJ on 1 September 2016, again requiring the plaintiff to take various further steps to progress the litigation (the 1 September orders).
9. [9]
   His Honour ordered:

1. The Plaintiff provide the Second Defendant with an Amended Statement of Loss and Damage which complies with Rule 547 of the Uniform Civil Procedure Rules 1999 and which is personally signed by the Plaintiff on or before 16 September 2016.

2. The Plaintiff provide the Second Defendant with a signed statutory declaration pursuant to Section 45 of the Motor Accident Insurance Act 1994 on or before 16 September 2016 with the following information:-

a) The names of all the entities for whom the Plaintiff has worked since the accident, i.e. including the entities for whom he contracted with on a self-employed basis; and

b) The information requested in the letter from Jensen McConaghy Lawyers to the Plaintiff dated 12 January 2016, except with respect to the provision of phone numbers of the persons referred to in paragraph 12(a) thereof.

3. The Plaintiff file and serve any further amended Statement of Claim (if required) by 30 September 2016.

4. The Second Defendant file and serve any further amended Defence (if required) by 14 October 2016.

5. The Plaintiff file any Reply to the further amended Defence (if required) by 28 October 2016.

6). The parties sign and file a Request for Trial Date by 25 November 2016.

7. The Plaintiff file and serve on the solicitors for the Second Defendant a Notice that a Party is Acting in Person (Form 92) within 7 days of a copy of said Form being provided by email to the Plaintiff by the solicitors for the Second Defendant.

8. Either party may list the matter for further mention before His Honour Reid DCJ giving 4 days written notice to the other and by arranging such listing with His Honour’s Associate.

9). The Plaintiff pay the Second Defendant’s costs of and incidental to the Application, those costs not to be paid until determination by a judge or otherwise of this action.

10. [10]
    Unfortunately, the plaintiff did not comply with all of those orders. The failures to comply   related to, in particular:

    1. (a)
       The failure to provide an Amended Statement of Loss and Damage which complied with Rule 547 UCPR as required by Order 1 of the 1 September orders; and
    2. (b)
       The failure to provide the statutory declaration required by Order 2 of the 1 September orders.
11. [11]
    Accordingly, the defendants’ solicitors requested the matter be relisted before his Honour as provided for by order 8 of the 1 September orders, and applied for the dismissal of the proceedings for want of prosecution and non-compliance with the 1 September orders.
12. [12]
    That application was filed on 24 November and set down for hearing on 28 November 2017.  Mr Dodd sought an adjournment of the application.  He was at that time acting in person and had sought an adjournment to try to arrange legal representation.  The defendant agreed to adjourn the matter and proposed three dates: 12, 13 and 14 December.  Ultimately, the matter was listed by his Honour for 14 December 2016.
13. [13]
    Between the filing of the application and hearing by his Honour, Mr Dodd purported to address the failures to comply with his Honour’s 1 September orders.  By letter dated 12 December 2016, the defendants’ solicitors articulated their complaints with Mr Dodds’ attempts to comply with the 1 September orders.
14. [14]
    When the application came on for hearing, Judge Reid declined to dismiss the proceedings, but he nonetheless made further orders on 21 December 2016 directed to the plaintiff requiring him to take various steps to progress the litigation.
15. [15]
    His Honour’s orders on that date were the following

1. The Second Defendant’s application is dismissed.

2. The Plaintiff provide the Second Defendant with an amended Statement of Loss and Damage which complies with Rule 547 of the Uniform Civil Procedure Rules 1999 on or before 3 February 2017.

3. The Plaintiff provide the Second Defendant with an Updated List of Documents on or before 3 February 2017.

4. The Plaintiff provide the Second Defendant with a signed statutory declaration pursuant to Section 45 of the Motor Accident Insurance Act 1994 on or before 3 February 2017 with the following information:-

5. The names of all the entities for whom the Plaintiff has worked since the accident, i.e. including the entities for whom he contracted with on a self-employed basis; and

6. The information requested in the letter from Jensen McConaghy Lawyers to the Plaintiff dated 12 January 2016, except with respect to the provision of phone numbers of the persons referred to in paragraph 12(a) thereof.

7. The Plaintiff obtain and disclose any further expert reports by 3 March 2017.

8. The Second Defendant obtain and disclose and further expert reports by 3 April 2017.

9. The Plaintiff file and serve any further amended Statement of Claim (if required) by 17 April 2017.

10. The Second Defendant file and serve any further amended Defence (if required) by 1 May 2017.

11. The Plaintiff file any Reply to the further amended Defence (if required) by 15 May 2017.

12. The parties sign and file a Request for Trial Date by 29 May 2017.

13. Either party may list the matter for further mention before His Honour Reid DCJ giving 4 days written notice to the other and by arranging such listing with His Honour’s Associate.

14. The Claim is dismissed if the Plaintiff breaches any of the Orders referred to above, unless the Plaintiff obtains an extension from the Second Defendant or failing that from His Honour Reid DCJ prior to the breach.

15. The Plaintiff pay the Second Defendant’s costs of and incidental to the Application to be agreed or failing agreement to be assessed, those costs not to be paid until determination by a judge or otherwise of this action.

16. [16]
    His Honour’s reasons were not before me, but it is evident from those orders that his Honour did not consider that Mr Dodd had properly complied with the 1 September orders.  It is also evident that his Honour considered that the plaintiff’s conduct in the litigation to that point merited an order in nature of a guillotine order, as provided in order 14.    The Request for Trial was filed by the due date and the matter was set down for trial for 3 days commencing on 29 August 2017.

History of legal representation

17. [17]
    Given that Mr Dodd ultimately sought the adjournment of the trial to obtain new legal representation following his decision to dismiss his solicitors, it is relevant to note his history in respect of legal representation.
18. [18]
    Mr Dodd commenced the proceedings on 22 January 2008 represented by Carter Capner solicitors.  They were replaced by Slater & Gordon, but this change seems to have been the result of acquisition of the Carter Capner by Slater & Gordon, rather than the result of any decision to change representation by Mr Dodd.
19. [19]
    Slater & Gordon acted for Mr Dodd until 9 March 2012, when Mr Dodd filed a notice that he would be acting in person. He continued to act for himself until 29 October 2013, when Platinum Lawyers took over conduct of the proceedings. They ceased to act on filing a Notice of Withdrawal of Solicitors on 28 August 2015, having sought and obtained leave from this Court to do so.  
20. [20]
    Mr Dodd did not file a notice that he was acting in person until 18 October 2016, following the making of the September orders by Judge Reid.   He continued to act for himself until 14 December 2016, when (in the shadow of the defendant’s application to dismiss the proceedings) he retained Carew Lawyers.  
21. [21]
    In the period between the withdrawal of Platinum Lawyers and appointment of Carew Lawyers, the solicitors for the defendants repeatedly wrote to Mr Dodd urging him to seek legal representation.
22. [22]
    On 11 August 2017, just 18 days before the trial commenced, Mr Dodd changed his representation again, retaining Parker Simmonds.  Parker Simmonds appeared for Mr Dodd on the first two days of the trial.
23. [23]
    No evidence was led before me to explain the reason for the changes in representation (other than the dismissal of Parker Simmonds mid-trial).  However, over the 5 years and 9 months during which the proceedings have been underway, Mr Dodd has had four different solicitors (counting Carter Capner and Slater & Gordon as one), along with two periods of self-representation.  At the least, he has had a reasonable opportunity to find satisfactory representation for the conduct of these proceedings.

Events at trial

24. [24]
    The first morning of trial, Mr Dodd sought leave to amend the statement of claim.   The character of the amendments comprised varying sums claimed in the Amended Statement of Claim to bring it into accord with an Amended Statement of Loss and Damage which had been served some months before.  The effect of the amendments was to increase the claim to some $1.2m but the proposed amendments also expressly abandoned any sum beyond the monetary limit of this Court. Mr Crow QC for the defendants rightly pointed out that any amendments to the statement of claim should have been made, in accordance with Judge Reid’s 21 December orders, by 17 April 2017.  However, he conceded that he could point to no material prejudice from the amendments to the conduct of the trial. Leave to make the amendments was granted but it is notable that no excuse for the failure to comply with his Honour’s order was proffered.
25. [25]
    After some other preliminary matters and Mr Smith’s opening of the plaintiffs’ case, Mr Dodd gave evidence. Mr Dodd gave evidence in chief until mid-afternoon.  Mr Crow commenced cross examination at 3.06pm and continued for the balance of the afternoon.   The cross examination related, in large part, to Mr Dodd’s taxation affairs and the accuracy of his returns. 
26. [26]
    The cross examination continued the morning of the second day of the trial. On two occasions that morning I warned Mr Dodd about his right to raise self-incrimination privilege in respect of possible taxation offences and there was a short adjournment in which Mr Smith of counsel was given the opportunity to give any further advice on that issue.  It was evident during the course of the cross examination that Mr Dodd had not disclosed relevant documents, including betting slips said to be relevant to proving the source of various sums he had received but not included in various tax returns about which he was cross examined.  
27. [27]
    Mr Dodd’s cross examination continued until about 12.00pm.  At that time, Mr Smith sought to interpose one of Mr Dodd’s medical witnesses, a Dr McEntee.  Mr Crow QC asked that Mr Dodd absent himself from Court while Dr McEntee gave evidence and was cross examined.  Mr Smith raised no objection to that course.  It was appropriate that that occur. Mr Dodd left the Court room during Dr McEntee’s evidence.  The Court adjourned for lunch at the close of Dr McEntee’s evidence, to resume at 2.15pm.
28. [28]
    On resumption after lunch, Mr Smith asked for an adjournment of the trial until 10am the next day because Mr Dodd was refusing to return to continue his cross examination because of:

    1. (a)
       Dissatisfaction with his exclusion from the Court room during Dr McEntee’s evidence;
    2. (b)
       Mr Smith’s refusal to speak to Mr Dodd during his cross examination; and
    3. (c)
       Mr Dodd considered that Mr Crow QC had told an untruth to the Court about the costs of having medical specialists attending to give evidence in person.
29. [29]
    Mr Smith stated that he sought the adjournment in the hope that an opportunity to explain matters to Mr Dodd might lead to him to resume cross examination.  Mr Crow QC opposed the adjournment. He pointed to the history of the matter (set out above in these reasons) and submitted that if I refused the adjournment and Mr Dodd did not then appear, I could give judgment in default of appearance.  However, Mr Smith was appearing before me at that time and Mr Dodd’s solicitors remained on the record.  In my view, at that point, Mr Dodd’s non-appearance to resume cross examination did not amount to a failure to appear before the Court.  Further, bearing in mind the serious potential consequences of Mr Dodd’s conduct, I granted the adjournment sought.

Mr Dodd’s application for an adjournment of the trial

30. [30]
    On resumption of the trial on Thursday morning, Mr Smith informed me that Mr Dodd had dismissed his solicitors.  This was confirmed by Mr Dodd directly in Court and a notice notifying that Mr Dodd was acting in person was filed in Court.  Once that notice had been filed, Mr Dodd’s solicitors withdrew.  Mr Smith remained at the bar table to provide such assistance as he could, a courtesy which was appreciated.
31. [31]
    Mr Dodd then applied for an adjournment of the trial. 
32. [32]
    At this point, of course, Mr Dodd was a litigant in person before the Court.  The Court’s duty when conducting a proceeding involving a unrepresented person has been the subject of numerous cases in intermediate Courts of Appeal^[1] and in the High Court.^[2]  It is generally recognised as comprising a duty to ensure a fair and just trial (or hearing).  A recent statement of the principle appears in Trkulja v Markovic^[3], where the Victorian Court of Appeal held (footnotes omitted):

36. Some cases have described the judge’s duty in terms that suggest that it is owed to the self-represented litigant while others have more accurately described it as a general duty which is inherent in the discharge of the judicial function.

37. Whatever the rationale for the judge’s duty may be, it is clear that the boundaries of legitimate judicial intervention are flexible and will be influenced by the need to ensure a fair and just trial.http://www.austlii.edu.au/au/cases/vic/VSCA/2015/298.html - fn16 It follows that what a judge must do to assist a self-represented litigant depends on the circumstances of the litigant and the nature and complexity of the case. The circumstances of the litigant include his or her age, physical and mental health, level of education, proficiency in the English language, level of intelligence, personality and experience as well as his or her understanding of the case.

38. The judge may also take into account whether a self-represented litigant is legally qualified or has had prior experience in litigation and whether it may be inferred from his or her qualifications or experience that he or she has a working knowledge of the substantive area of law that he or she is litigating and applicable court procedure.http://www.austlii.edu.au/au/cases/vic/VSCA/2015/298.html - fn18 A further relevant consideration is whether another party to the litigation, whose interests are aligned with those of the self-represented party, is represented and is able to provide assistance to the self-represented party.

39. In determining the proper scope of assistance to be offered to a self-represented litigant, the touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. In some cases, it may be necessary for the judge to identify the issues and the state of the evidence in relation to them so as to enable the self-represented litigant to consider whether he or she wishes to adduce evidence.http://www.austlii.edu.au/au/cases/vic/VSCA/2015/298.html - fn21 It is elementary that a judge ought to ensure that the self-represented litigant understands his or her rights so that he or she is not unfairly disadvantaged by being in ignorance of those rights. Notwithstanding this, the judge should refrain from advising a litigant as to how or when he or she should exercise those rights.http://www.austlii.edu.au/au/cases/vic/VSCA/2015/298.html - fn22

40. The High Court has stated that a frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. Similarly, this Court has endorsed the proposition that ‘[c]oncealed in the lay rhetoric and inefficient presentation may be a just case’.

41. It is clear that a judge cannot become the advocate of the self-represented litigant. This is because the role of a judge is fundamentally different to that of an advocate. Further, a judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. Accordingly, the restraints upon judicial intervention stemming from the adversary tradition are not relevantly qualified merely because one litigant is self-represented.

33. [33]
    Bearing those matters in mind, I explained to Mr Dodd the necessity of putting evidence before me to persuade me to adjourn the trial.  I explained to him that there were substantial considerations favouring refusing any adjournment arising out of the long history of the matter and the fact that the Court must consider interests beyond  just Mr Dodd’s own interests.
34. [34]
    Mr Dodd then gave evidence on his application for an adjournment.  The effect of his evidence was that he was dissatisfied with how the trial had been conducted by his legal representatives.   He also advanced a specific complaint in relation to a statement by Mr Crow as to the cost of having a medical specialist attend to give evidence in person.  Mr Dodd considered that Mr Crow’s statement was erroneous, at least in respect of Dr McEntee who Mr Dodd said would charge $1250 to attend to give evidence.  (As will be seen, Mr Crow’s comments were not directed at what Dr McEntee would have charged to attend). He then submitted that the reason he sought the adjournment to obtain new legal representation.
35. [35]
    I explored with Mr Dodd whether he would be able to pay the costs thrown away by the adjournment if the trial was adjourned.  Mr Crow estimated that the costs thrown away would be at least $50,000.  I asked Mr Dodd whether he would be able to meet such a costs order.  The effect of his responses was that he would not be able to meet those costs. 
36. [36]
    Mr Crow submitted that the adjournment should be refused. The primary submissions relied upon related to the history of the litigation to date, as summarised above. 

The reasons for refusal of the adjournment application

37. [37]
    The application for adjournment involved the Court exercising a broad discretion. 
38. [38]
    In this context, observations made by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 are apposite.  The majority judgment (Gummow, Hayne, Crennan, Keifel and Bell JJ) noted at [98]:

Of course, a just resolution of proceedings remains the paramount purpose …; but what is a “just resolution” is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.

39. [39]
    Their Honours went on to reject the proposition that the discretion of a court to allow an amendment to a pleading should, as a general rule, be exercised in favour of allowing the amendment subject only to the payment of costs thrown away as a result. Their Honours stated (at [111] - [113], footnotes omitted):

[111] An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this court’s earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.

[112] A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

[113] In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.

40. [40]
    Though this case was concerned with an application for leave to amend, the observations apply equally to applications to adjourn proceedings.
41. [41]
    Similarly, in In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 the High Court observed:

51.  In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice.

52. Unsurprisingly, the case management rules with which the Court was concerned in Aon Risk Services Australia Ltd v Australian National University had essentially the same object as those stated in the CPA. The overriding purpose of the CPA and the rules of court provided for by the UCPR, as stated in s 56(1) of the CPA, is "to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings." In order to achieve that purpose, s 56(2) provides that the court:

"must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule."

A duty is also imposed upon a party to civil proceedings. Section 56(3) provides that:

"A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court."

...

56. The evident intention and the expectation of the CPA is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.

57. That purpose may require a more robust and proactive approach on the part of the courts...

[underlining added]

42. [42]
    Preparation and presentation of trials involve very significant resources both of the parties and of the Court.  Any application to adjourn a trial, particularly one which is underway and is at most two days away from completion, requires careful consideration to be given to the balance of interests between the party seeking the adjournment, the other parties, and the public interest.  Bearing those principles in mind, I refused the request for an adjournment for the following reasons.
43. [43]
    First, the events the subject of the litigation occurred nearly 10 years ago.  Its prompt resolution was therefore highly desirable.
44. [44]
    Second, Mr Dodds sought an adjournment of the trial in circumstances where the proceedings had been on foot for nearly 6 years.   Perhaps more importantly, the evidence (as set out above) supports the conclusion the Mr Dodd had not pursued the proceedings expeditiously.  Further, Mr Crow identified a number of respects in which Mr Dodd had not fully complied with the orders made on 21 December 2016.  Mr Dodd’s history of delay and non-compliance with Court orders told against granting the adjournment.
45. [45]
    Third, Mr Dodd had had ample opportunity to find legal representation which was satisfactory to him.  The wish to find different representation did not justify adjourning the trial. Further, while there was no evidence before me as to the reasons for Mr Dodd’s frequent changes in representation (apart from his dismissal of his solicitors in this case), it is evident that Mr Dodd has had difficulty in finding enduring representation.  As Mr Crow submitted, this created a reason to doubt as to whether the matter would be able to be brought to a conclusion in timely manner.  
46. [46]
    Fourth, I do not consider that Mr Dodd’s complaint that his solicitors and counsel were not representing him to his satisfaction provides a reason which supports the grant of the adjournment, at least in the circumstances of this case.   Those complaints, as particularized, related to dissatisfaction by Mr Dodd with forensic judgments by his representatives up to that point in the trial and to concerns he had about future conduct of the case.  They were, at best, of doubtful merit.
47. [47]
    One complaint was that he had been excluded from Court while one of his expert medical witness was giving evidence.  That was unremarkable given that Mr Dodd was under cross examination at the time that the medical witness was interposed.  It was a matter of judgment for his representatives whether to interpose that witness, and the decision to do so was also unremarkable.  I explained that to Mr Dodd.
48. [48]
    Another complaint related to Mr Crow’s comment about the cost of having medical specialists attend Court in person to be cross examined.  Mr Dodd took exception to Mr Crow’s general comments as to the costs of doing so.  However, Mr Crow made the comment by way of outlining the reason for the provision for attendance of medical expert witnesses by telephone disclosed in section 39R Evidence Act 1977.   The comments by Mr Crow were not related to this particular case.  I explained that to Mr Dodd.  The criticism of Mr Crow by Mr Dodd in this respect was unjustified.
49. [49]
    Other matters Mr Dodd raised related to the evidence to be put before the Court as to his injuries and the responses he might give to issues relating to his tax affairs.  These matters were also matters of forensic judgment, and indeed might well have been dealt with in evidence or submissions or re-examination over the balance of the trial.  I endeavored to explain this to Mr Dodd as well.   
50. [50]
    In my view, Mr Dodd could chose to cavil with the forensic judgments of his representatives, but as he had chosen his representatives for this trial it would have been unfair both to the other parties and to the public interest in the due dispatch of the business of the Court that his dissatisfaction with those judgments should lead to the adjournment of the trial.   A fortiori where his concerns related to matters which had not yet occurred, and might never occur.
51. [51]
    Fifth, while it is not a sufficient basis for an adjournment of a trial that the costs thrown away can be paid by the party seeking adjournment, there was no basis to believe that Mr Dodd would be able to pay such costs.  It was also relevant in that regard that the defendants had already been forced to incur the costs of three applications to bring Mr Dodd to Court to obtain orders for the timely progress of the litigation.
52. [52]
    Sixth, Mr Dodd’s decision to seek to adjourn the trial during the course of his cross examination, rather than at the end of that process, was a source of potential unfairness to the defendants, given its potential to diminish possible forensic advantages established in that process up to the time when Mr Dodd refused to continue.
53. [53]
    Finally, I recognise that the consequence of Mr Dodd being refused an adjournment was that he would have to continue the trial himself, rather than with the benefit of counsel and solicitors at a later time.  That was a disadvantage to him. However, that disadvantage was somewhat less than it might otherwise have been.  As I have noted, liability was not in dispute.  Further, at the time of his decision to terminate his solicitors’ retainer, his evidence in chief was complete, his principle expert medical witness had given evidence and been cross examined, objections to evidence had been determined in respect of his Occupational Therapist’s two reports and his Chiropractic report.   A substantial part of his case had already been dealt with.
54. [54]
    Following Mr Crow’s submissions on the adjournment application, Mr Dodd again formulated and expanded upon his complaints about his representatives conduct of the trial from the bar table. I explained that the matters he raised were either unremarkable procedurally, irrelevant at the stage of the trial which had been reached or otherwise forensic judgments which were properly within the province of his advisers.  The following exchange then followed:

HIS HONOUR:   Mr Dodd, having listened to what I have said, are you inclined to resile from your position that you terminate the instructions of your solicitors and counsel?

PLAINTIFF: What do you mean by resile?

HIS HONOUR: Do you want to change your mind, having heard what I’ve got to say?

PLAINTIFF: And keep my solicitors.

HIS HONOUR: Yes, and continue with the trial.

PLAINTIFF: No, I don’t.

The events following the refusal of the adjournment

55. [55]
    Following that exchange, I made orders refusing the adjournment application.  I invited Mr Dodd to continue with his case.  At that point, I identified for Mr Dodd (with the assistance of Mr Smith, Mr Dodd’s erstwhile counsel), what steps remained to complete his case.  I then explained to Mr Dodd that the trial must continue and asked him what he proposed to do.  He indicated that he would not continue with the trial.  I explained to Mr Dodd the likely consequences of that course, being inter alia, that judgment might be given against him in his absence. 
56. [56]
    Having explained those consequences, I again asked Mr Dodd if he wanted to proceed with his case or leave the Court.  He answered that he wanted to leave the Court.  He did so.  He did not return.

The defendants’ application for dismissal

57. [57]
    On Mr Dodd’s departure from the Court, Mr Crow QC for the defendants applied for the dismissal of the proceedings pursuant to Rule 658(1) UCPR.  That rule provides:

1. (1)
   The court may, at any stage of a proceeding, on the application of a party, make any order, including a judgment, that the nature of the case requires.

58. [58]
    Mr Crowe relied in the alternative on rules 280, 374 or paragraph 12 of the December order.
59. [59]
    He sought that order in reliance on the following matters.

• The extreme delays in the matter which have been caused by the Plaintiff;
• The Plaintiff’s extensive, and ongoing, pattern of disobedience of the Court’s orders;
• The prejudice suffered by the Second Defendant in respect of the Plaintiff’s conduct;
• The dismissal of a claim in similar circumstances in Thomson v Smith [2005] QCA 446;
• The Plaintiff has essentially withdrawn from the claim and a res judicata should arise.

60. [60]
    Mr Crow relied in particular upon Thomson v Smith [2005] QCA 446.   That case also involved a claim for damages for personal injury arising from a motor vehicle accident.  The proceedings also involved a matter of some age: the events in that case having occurred 17 years before the trial.
61. [61]
    When the matter first came on for trial, the plaintiff appeared by a solicitor of the firm Gilshenan & Luton who sought an adjournment of the trial for two reasons: because the plaintiff had just appointed his firm (having had previous solicitors withdraw just before trial) and because the plaintiff was unable to give instructions, requiring the appointment of a litigation guardian.  The learned Trial Judge refused that adjournment application.  
62. [62]
    When the hearing resumed, the plaintiff applied in person for an adjournment over the telephone. When his Honour asked the plaintiff if she proposed to attend to commence her case on the next day at 10am, the plaintiff submitted that she could not get flights to Brisbane by then and submitted that he medical advisers had advised that she was not fit to stand trial or give instructions.  The plaintiff apparently presented to his Honour in the course of the application as being capable of giving instructions.
63. [63]
    The next day, the application continued, conducted by a different solicitor. Both that solicitor and the plaintiff made submissions on the further adjournment application.  The plaintiff sought an adjournment of six to eight weeks so that a litigation guardian could be appointed and her new solicitors could prepare for trial. 
64. [64]
    His Honour also refused that adjournment application and required the plaintiff to start to present her case.  I note that in that case, the plaintiff was a solicitor who had shown some facility in dealing with the matter to that point.  In circumstances where the plaintiff was not able to commence her case, his Honor dismissed the proceedings.
65. [65]
    On appeal, Muir J (with whom Macpherson JA agreed) concluded that in the circumstances his Honour’s discretion had not miscarried in refusing the adjournment.  In reaching that conclusion, it was evident that Muir J took into account the fact that the effect of dismissal of the adjournment application was (as occurred) that the proceedings were then dismissed.
66. [66]
    Of particular interest in this case is the basis upon which the proceedings were dismissed.  Although not dealt with directly in Muir J’s judgment, it is evident that the basis of the dismissal of the proceedings was Mrs Thompson’s failure to prosecute her claim when required to do so.
67. [67]
    The circumstances in that regard were summarised by Jerrard JA (who was in dissent in the result) as follows:

[39] The learned judge then invited Mrs Thomson to begin the case, and she responded that she could not present it because she was not fit to do so. Senior counsel for the defendant then sought judgment in his favour pursuant to UCPR 658(1), on the grounds that Mrs Thomson had led no evidence to support the allegations in the pleadings. The application for judgment was no longer made pursuant to UCPR 476(2) because Mrs Thomson had appeared, by telephone, to prosecute the case. Mrs Thomson responded by arguing that she did wish to prosecute the case, and had not said she was not doing so. The learned judge then advised that Mrs Thomson should either start the case “and by that I mean commence it in the usual fashion, which as a solicitor I have no doubt you’re thoroughly familiar with”, or not start it. In reply to that Mrs Thomson denied familiarity with personal injuries matters, but repeated that she wanted to start the prosecution of her case. Invited again to begin it, she asked for an adjournment. The learned judge then ruled that she was not now prosecuting her case and ordered that her claim be dismissed. As those orders were being made Mrs Thomson repeated that she was prosecuting the case, and stated (twice), that she wanted to give an opening. Nevertheless, the learned judge completed making the order dismissing her claim with costs.

68. [68]
    The Court of Appeal did not discuss whether his Honour had power to dismiss the proceedings in the circumstances which existed then.  The power to do so was not in question.  However none of the judgments cavil with the proposition that his Honour had power to dismiss the proceedings in circumstances where the plaintiff did not prosecute her case when called upon to do so in the ordinary course.
69. [69]
    Mr Crow also referred to two other cases.
70. [70]
    The first was Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 518. That was a case in which the question before the NSW Court of Appeal was whether the dismissal of a counterclaim brought by a defendant in circumstances where the defendant did not appear at the trial gave rise a judgment estoppel.  In that case the defendant appeared by legal representatives to seek an adjournment and when it was refused, those representatives withdrew.   There was no attempt to defend the case or prosecute the counterclaim.
71. [71]
    The power of the County Court Judge who dismissed the proceedings on that basis was not in dispute on the appeal (though it was disputed at trial).  The point was however, discussed in the appeal judgment by Kirby P (as his Honour then was), in the following terms^[4]:

In this Court, the respondent conceded that the County Court of Victoria had power to make the order dismissing its counter-claim. This concession had not been made before Loveday J, whose attention was not drawn to the relevant provisions of the County Court Act 1958 (Vic). Before his Honour, the case took a meandering journey through the provisions of the County Court Rules 1979 (Vic). This Court has not been troubled with the provisions of the Rules because of the concession, which appears to have been properly made. Section 49 of the County Court Act (Vic) provides:

“The court or a judge shall as regards any action or matter within its or his jurisdiction for the time being have power to grant, and shall grant, in any action or matter, such relief, redress or remedy, or combination of remedies, either absolute or conditional, and shall have power to make any order that could be made in regard to any action or matter and shall in every such action or matter give such and the like effect to every ground of defence or counter-claim, equitable or legal, in as full and ample a manner as might and ought to be done in the like case, by the Supreme Court or a judge thereof.”

The County Court of Victoria, like any other court of statutory jurisdiction, has no jurisdiction beyond that which Parliament has given it: see R v Hackett; Ex parte Cline (1882) 8 VLR (L) 129 at 132; R v H Beecham & Co; Ex parte R W Cameron & Co [1910] VLR 204 and Levoune v Bacoulis [1935]35 AR (NSW) 126. For most purposes the County Court does not enjoy the powers inherent in the Royal courts of common law — the Common Pleas, the King's Bench and the Exchequer Chamber: see John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476. There is, nevertheless, a penumbra of power which may not be expressly stated in the statute but which is necessarily conferred by statute by the very fact of creating a court. It is thereby clothed with the powers that are necessary “to enable it to act effectively within such jurisdiction”: see Connelly v Director of Public Prosecutions [1964] AC 1254 at 1301. These are not “inherent powers”. They are better described as incidental statutory powers: cf Taylor v Attorney-General [1975] 2 NZLR 675 at 680; Taylor v Taylor (1979) 143 CLR 1 at 5 and John Fairfax (at 476).

In the case of the County Court of Victoria the closing words of s 49 are clearly intended to enlarge the “penumbra” of the statutory powers and to equate the jurisdiction of a County Court judge in giving relief to that of the Supreme Court or a judge of the Supreme Court. The latter court is undoubtedly a common law court with the inherent power derived, by the common law. The width of the jurisdiction of the County Court of Victoria to provide relief has been affirmed in a number of decisions of the Supreme Court of Victoria which were not challenged by the respondent: see, eg,Duncan v Lowenthal [1969] VR 180 at 182; Tile Centre v Symons; Ex parte Kyritsis [1972] VR 965 at 971f; Muto v Faul [1980] VR 26 at 30; see, also, ss 36, 37, 40 and 41 of the County Court Act (Vic). The respondent was therefore correct to shift its ground and, in this Court, to concede that the County Court and Murdoch CCJ, had the power under s 49 of the Act to dismiss the respondent's counter-claim.

72. [72]
    Similarly broad powers are conferred on this Court by s. 69 District Court of Queensland Act 1967 which provides:

1. (1)
   Subject to this Act and to the rules of court, the District Court has, for the purposes of exercising the jurisdiction conferred by this part, all the powers and authorities of the Supreme Court, including the powers and authorities conferred on the Supreme Court by an Act, and may in any proceeding in like manner and to like extent—

1. (a)
   grant such relief or remedy; and

2. (b)
   make any order, including an order for attachment or committal in consequence of disobedience to an order; and

3. (c)
   give effect to every ground of defence or matter of set-off whether equitable or legal;

as may and ought to be done in like cases by a judge of the Supreme Court.

* Example of power conferred on the Supreme Court by an Act—

* the power of the Supreme Court under the Land Title Act 1994, section 127 (Removing a caveat) to order that a caveat be removed

2. (2)
   Without affecting the generality of subsection (1), the District Court shall, in any proceedings in which jurisdiction is conferred under this part, have power to grant relief—

1. (a)
   by way of a declaration of rights of the parties; and

2. (b)
   by way of injunction, whether interim, interlocutory or final, in the proceedings; and

3. (c)
   by staying the proceedings or part thereof; and

4. (d)
   by appointing a receiver including an interim receiver.

3. (3)
   To remove any doubt, it is declared that the District Court may grant a Mareva injunction or Anton Piller order in proceedings in which jurisdiction is conferred under this part.

…

73. [73]
    Accordingly, this Court has like power to that exercised in Thompson v Smith to dismiss proceedings where the plaintiff fails to prosecute its claim at trial. 
74. [74]
    In respect of this matter, Mr Crow relied specifically on the following passage in the judgment of Kirby J P (at 520 F-G):

If, as it is contended, the respondent did not have a trial “on the merits” this was solely by virtue of its own conduct. It instructed its counsel to withdraw. Once the adjournment was refused, no endeavour was made (for example by subpoena of witnesses, the evidence of experts or otherwise) to prove the respondent's case. It was simply abandoned. The respondent walked away from it.

75. [75]
    To similar effect were the observations of Clarke JA at 526G where his Honour observed:

I take it that these authorities establish that if a plaintiff withdraws from the trial and an order is made in its absence dismissing its claim then that order will, unless set aside or successfully appealed from, ground a later plea of res judicata in the event that a later attempt is made to litigate the same case.

76. [76]
    Mr Crow also referred to Mango Boulevard Pty Ltd v Spencer [2010] QCA 207 which referred to the above passage of Clarke JA with approval, but again in the context of consideration of the consequences for judgment estoppels or the application of the principles of abuse of process of a judgment given other than on the.
77. [77]
    It is notable that each of Thomson and Linprint dealt with the situation where the plaintiff (or counterclaiming defendant) failed to prosecute its case at all.  There is no doubt that in that case, it is open to this Court, to dismiss the proceedings.  The questions which arise in this case are:

    1. (a)
       Whether such power arises where the plaintiff abandons his case after calling some evidence; and
    2. (b)
       If such power does arise, whether the Court ought to exercise its discretion to dismiss the proceedings based on that conduct, or it is ought to nonetheless require the defendant to call evidence and prove its case in the absence of the plaintiff.
78. [78]
    As to the first question, Mr Crow QC could not direct me to any case considering this particular factual scenario.   However, in my view, the fact that some evidence had been led by the plaintiff before the plaintiff ceased to appear and prosecute his case is not of itself a consideration which distinguishes this case from the case where a plaintiff fails to appear at all, or (as occurred in Thompson) appears but fails to prosecute its case when called upon to do so.  In both cases, it is the plaintiff’s conduct in abandoning prosecution of the proceedings which in my view enlivens the power to dismiss the proceedings.     
79. [79]
    As to the second question, in my view it was appropriate in this case to dismiss the proceedings without a hearing on the merits.
80. [80]
    First, and of central importance, in the circumstances set out above, Mr Dodd plainly evinced an intention to abandon prosecution of his proceedings, notwithstanding the efforts made to point out the consequences of doing so.
81. [81]
    Second, in my view it may have been difficult to conduct the trial on the merits fairly to the defendants in circumstances where Mr Dodd had given evidence in chief but had refused to permit proper cross examination.  A reasonable opportunity to cross examine is ordinarily an incident of a fair trial.^[5]  It certainly was in this case, where Mr Dodd’s evidence was central to many issues in dispute.  It was evident that Mr Crow’s cross examination was far from complete and the plaintiff, by abandoning the witness box, created the prospect of substantial unfairness in the further conduct of the trial on the merits by the defendants.    
82. [82]
    Third, it is relevant that the party who abandoned prosecution of the litigation was the plaintiff.  If the plaintiff fails to prosecute its case, I do not see any reason why the Court ought to insist that the defendant seek a decision on the merits.
83. [83]
    Finally, it was of some relevance that the defendants chose to make this application rather than seek to proceed to a hearing on the merits.  There can be different consequences for both the plaintiff and the defendant depending on whether judgment is granted in default rather than following a hearing on the merits.  I could see no good reason in the circumstances of this case to impose on the defendants the burden of proceedings with a hearing on the merits if they did not seek one.
84. [84]
    In those circumstances, I ordered that the proceedings be dismissed and that the plaintiff pay the defendants’ costs including reserve costs on the standard basis.

Judge Bernard T Porter QC