Usher v Palmer[2023] QDC 3

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   On 20 December 2018 the plaintiff filed a Claim seeking damages of $800,000.00, including aggravated damages, from the defendant for defamation.  That Claim was necessarily commenced in the Supreme Court. 
2. [2]
   A detailed outline of the history of the matter is not necessary, although some detail is required. 
3. [3]
   On 6 September 2019, the defendant filed an application for an order dispensing with the plaintiff’s signature on a Request for Trial Date. On 3 October 2019 that application was dismissed and the plaintiff was ordered to pay the defendant’s costs of the application.
4. [4]
   On 28 November 2019 a Request for Trial Date, signed on behalf of both parties, was filed.^[1]  A trial date was allocated in the Supreme Court for 5 May 2020.  For reasons not clear on the material, it was vacated. This will be discussed later. 
5. [5]
   On 11 February 2020 the parties attended a case conference with the Resolution Registrar in the Supreme Court.  Six days later the defendant emailed the Resolution Registrar and confirmed that he was agreeable to the matter being heard in the District Court. 
6. [6]
   On 3 March 2020 a consent order was made appointing a costs assessor to assess the costs payable under the order of 3 October 2019.
7. [7]
   On 11 August 2020 a Consent Order was made remitting the proceeding for hearing to the District Court, along with other ancillary orders. 
8. [8]
   On 2 December 2020 the plaintiff filed a notice that he was now acting in person, and, on 4 January 2021, the defendant filed a Notice of Change of Solicitors.
9. [9]
   On 4 March 2021 the order made on 3 October 2019 was perfected.^[2]
10. [10]
    On 5 October 2021 the defendant’s solicitor applied directly to the previously appointed costs assessor for a default assessment, presumably concerning the order of 3 October 2019.  The plaintiff’s affidavit before me states that the application was rejected, but his Counsel informed me during the course of submissions that the default assessment was refused and the resulting assessment is ongoing.^[3]  It seems that that was due to the dissatisfaction of the costs assessor with the material being given to her upon which she was asked to assess costs.  There had been correspondence between the parties and the costs assessor through to 28 October 2021, but particularly on 7 October 2021 correspondence was issued by the costs assessor concerning the material required. 
11. [11]
    It is in that context that the defendant, on 16 September 2022, filed an application that the Claim be dismissed for want of prosecution pursuant to s 22 of the Civil Proceedings Act 2011 (“CPA”).  In response, the plaintiff cross-applied for orders dismissing the defendant’s application and seeking leave to continue with the proceeding, pursuant to r 389(2) of the UCPR.  Both applications also sought orders for costs. 

Legislative Provisions

12. [12]
    Section 22 of the CPA provides:

1. “22Dismissal of proceedings for want of prosecution

1. (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.

1. (2)
   If 2 years have passed since the last step was taken in a proceeding, the court may dismiss the proceeding.
2. (3)
   For this section, an application on which no order was made is taken not to be a step.”

13. [13]
    The term “proceeding” is specifically defined for the purposes of the CPA:

“proceeding means a proceeding in a court (whether or not between parties), and includes—

1. (a)
   an incidental proceeding in the course of, or in connection with, a proceeding; and
2. (b)
   an appeal or stated case.”

Obviously enough, only paragraph (a) is relevant for present purposes.

14. [14]
    Rule 389 of the UCPR provides:

1. “389Continuation of proceeding after delay

3. (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.
4. (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.
5. (3)
   For this rule, an application in which no order has been made is not taken to be a step.”

Consideration

When was the last step taken for the purposes of the CPA?

15. [15]
    There is no definition of what amounts to an “step” being taken in a proceeding for the purposes of the CPA, but reference can legitimately be had to the jurisprudence on the cognate provision at r 389 of the UCPR. 
16. [16]
    For the purposes of r 389, to amount to a step in the proceeding, the act or activity must have the characteristic of carrying the matter forward towards its conclusion.^[4]  It is not necessary that the act or activity is required under the rules, but it must have the essential characteristic referred to earlier.^[5]  Also, not every application or order made will amount to a step in the proceeding, regardless of a possible construction of r 389(3) to the contrary.^[6] Notably, given the factual context of the present matter, the transfer of a proceeding from one Court to another does not constitute the taking of a step in the proceeding.^[7] These principles need to be adapted in light of the broader definition of “proceeding” applicable to the CPA.
17. [17]
    The defendant contends that the last step taken in the proceeding was on 28 November 2019 when the Request for Trial Date was filed.  The plaintiff asserts that the application for default assessment in October 2020, albeit made by the defendant, was the last step taken and relies in particular on Robinson v Laws & Anor^[8] in support of that proposition.  Although the plaintiff’s affidavit, filed and read on the application, asserted multiple steps had been taken in the previous two years, some of which are referred to in the factual summary above, Counsel restricted his argument to the application for default costs assessment on 5 October 2021 and the correspondence from the costs assessor two days later as, in combination, having been the only “step” taken in the previous two years.^[9]
18. [18]
    In Robinson v Laws the applicant argued that the filing of an application for assessment of a Bill of Costs to the Registrar followed by the assessment constituted a step in the proceeding.  While Moynihan SJA found that there was merit in that argument, he specifically found that it was the assessment of the Bill of Costs which constituted a step that had been taken in the proceeding.^[10]
19. [19]
    There is a curious feature of the decision in Robinson v Laws. His Honour referred to the provisions of the then existing s 85 of the Supreme Court of Queensland Act 1995, which was in identical terms to the present s 22 of the CPA, while also noting the inherent power of the Supreme Court to dismiss proceedings for want of prosecution.  Section 85 of the Supreme Court of Queensland Act 1995 only applied to proceedings in the District Court and Magistrates Court and so it had no application to the matter before his Honour. The terms of the judgment suggest his Honour was applying the criteria in s. 85 as a guide to the exercise of the inherent jurisdiction, but the authorities cited are of more general application. In any event this need not be decided finally as the decision does not support the plaintiff’s position given that costs have not been assessed in the present matter. 
20. [20]
    Independently that, I would have found that the refused application for default costs, resulting in an as yet uncompleted assessment of costs, did not constitute a step in the proceeding. 
21. [21]
    The defendant submits that an application to a costs assessor is not a “proceeding in a court”, and therefore not a step in the proceeding even if it falls under the wider definition in the CPA. The plaintiff submits that it should not matter whether the application has been made to a Registrar for assessment or directly to a previously appointed assessor. This is a dispute that need not be determined.  Even accepting, without deciding, that an assessment of costs following an application made directly to a previously appointed assessor is an incidental proceeding in a court and in the course of, or in connection with, the proceeding (which is the claim for damages) the fact it has not been granted means it has not carried that aspect of the proceeding towards conclusion.  As such the mere making of the application does not constitute a step in the proceeding, even bearing in mind the wider definition for the purposes of s 22 of the CPA. 
22. [22]
    Although r 389 of the UCPR is not directly part of my consideration under s 22 of the CPA, jurisprudence as to what amounts to a step in the proceeding is apposite to a consideration under s 22 of the CPA, and my conclusion is consistent with r 389(3).
23. [23]
    I consider that the last step in the proceeding was taken on 28 November 2019. 

Should the Claim be dismissed?

24. [24]
    That finding means that the discretion to dismiss the Claim arises.  It is convenient to consider at the same time the plaintiff’s alternative application for leave to take a further step, as they raise effectively the same considerations.  That is, if the plaintiff should have leave to take a step in the proceeding, the Claim should not be dismissed, and the reverse also applies. 
25. [25]
    In Tyler v Custom Credit Corp Ltd & Ors^[11] Atkinson J listed 12 considerations that, if applicable to the case at hand, were relevant considerations on an application of this nature. However, those 12 matters are not a complete list of relevant considerations, and the Court must take account of all relevant features and, after determining the weight to be given to them, decide if there is good reason for making the order.^[12]  The onus of satisfying the Court that the order is warranted lies on the applicant.^[13]  In the circumstances here, that means that the plaintiff has the onus of establishing that leave should be given, while the defendant bears the onus of establishing that the proceeding should be dismissed. The plaintiff’s Counsel accepted that his client effectively bore the onus in circumstances of the cross-applications.^[14]
26. [26]
    It is convenient to firstly consider the plaintiff’s primary submission. In essence, it is submitted that as the Request for Trial Date had been filed there was no step that could or needed to be taken. Reference was made to rule 470 of the UCPR to support the proposition. In effect, the submission was that the plaintiff should not be punished for not doing something that he could not do. The submission cannot be accepted.
27. [27]
    An act or activity may constitute a step in the proceeding, even if it is not required by the Rules. The plaintiff had an obligation pursuant to the implied undertaking at rule 5 of the UCPR to conduct the litigation in an expeditious manner. While it is true that ordinarily the filing of the request for Trial Date would result in the matter being listed for hearing, or otherwise for callover or mention, the matter was obviously not proceeding ordinarily given the extended period during which there had not been a new hearing date allocated since the transfer of the proceeding. The plaintiff is not entitled to sit on his hands and ignore the obvious fact that something was amiss. It was necessary for him to take steps to ensure that the matter was listed, whether unilaterally or together with the defendant. That would have constituted taking a step in the proceeding, had it resulted in a listing of some form. It is that lack of action which is at the heart of this dispute. That it would constitute taking a step in the proceeding is confirmed by the fact that the plaintiff has indicated that is his intention if given leave.
28. [28]
    The other considerations do not all tend in the one direction.
29. [29]
    The fact that the litigation is at an advanced stage tends to favour granting leave.  The next step is to seek another trial listing and it may be that no other steps are required.
30. [30]
    It is not possible to assess the plaintiff’s prospects of success.  The success or otherwise of the plaintiff’s case will turn on issues of the credibility and reliability of witnesses as assessed in the trial environment. On that basis, it cannot be said that the plaintiff’s case is particularly strong, but neither can it be said that it is very weak. 
31. [31]
    The overall delay in the matter tends against granting leave to proceed.  The incident the subject of the Claim is said to have occurred on 31 December 2017.  A concerns notice was delivered the same day, but the Claim was not filed until 20 December 2018.  The explanation provided, in effect that the plaintiff was waiting for a response to the concerns notice, is not wholly satisfactory, although the Claim was commenced within time.
32. [32]
    Each of the parties make allegations against the other about aspects of asserted delay in the conduct of the proceeding.  These cannot be resolved in the absence of oral evidence, but in any event do not need to be resolved.  Whatever delay there was, the fact remains that a Request for Trial Date was filed about 11 months the after proceeding commenced, which does not speak of gross delay, and a trial date for six months later was allocated.
33. [33]
    Although it is not clear on the material before me, the trial date may have been vacated as a consequence of the possibility of transferring the proceeding to the District Court having been raised in the course of the case conference.  That is consistent with the defendant’s email dated 17 February 2020, but it may also have been due to administrative arrangements in the early days of COVID-19 arrangements being in place in the Courts.^[15] The vacating of the trial date has not been adequately explained. 
34. [34]
    That it took until 11 August 2020 to have a consent order granted for the transfer of the proceeding may speak to the priority both parties were giving the matter by that time, although the fact that the defendant had earlier applied to dispense with the plaintiff’s signature on the Request for Trial Date and that he was awarded costs when the notice was signed prior to the hearing, suggests that the plaintiff had not earlier pursued the matter with diligence.^[16]
35. [35]
    The plaintiff accepts that it was “remiss” of him to have not followed up the allocation of a trial date in the District Court.  He refers to a number of assumptions he made concerning the conduct of the matter in the Courts during COVID-19 times.  Whilst some of these may have been understandable in the early times of COVID-19 restrictions, they hold less weight the longer things went on.  Notably, it was during that time that he gave notice that he, a solicitor, was now conducting the litigation himself. That is not entirely consistent with his explanations.
36. [36]
    Of more substance is the fact that three of the plaintiff’s potential witnesses have each suffered injuries, of varying seriousness, at various times since August 2020.  It is asserted that, in effect, one or more were unlikely to be available throughout the whole time between then and August 2022.  The implication is that no trial could have been conducted given these issues with his potential witnesses.  He also asserts that, given one of the witness lives in New South Wales, border lockdowns and travel restrictions, as well as flooding events, meant that that witness could not have attended Brisbane to testify during various periods. 
37. [37]
    The defendant correctly observes that there is no medical evidence offered to support the existence of, or extent of, these injuries.  While I accept each injury occurred and that they may have inconvenienced the ability on one or more of those witnesses to have testified, it is not clear to me that they would necessarily have precluded any such witness from testifying and, and certainly not for the whole duration of the roughly two-year period they are said to have occupied. 
38. [38]
    I do not consider that the border lockdowns and restrictions particularly assist the plaintiff’s position.  Had he made even perfunctory enquiries at any time from late 2020 onwards he would have been aware that the Courts were regularly receiving evidence by telephone and video-link.
39. [39]
    Nonetheless, I do accept that the medical issues, border issues and flooding events were something of a distraction for the plaintiff given each of those persons were family members of one sort or another.  However, I do not accept that they, either individually or collectively, should have so distracted him as to preclude even the barest of enquiry being made about a trial date allocation with the Court.  The plaintiff is a legal practitioner and should have taken steps to at least see if his own litigation could be progressed.  
40. [40]
    The defendant and his wife have each attested as to the impact the delay has had on them. There are reasons to doubt that the defendant having been prescribed medication for a period is substantially attributable to the pending litigation.  There are also reasons to doubt that the defendant, a police officer stationed in a watchhouse, would have been greatly affected by the words he attributes to the plaintiff, even though their neighbourly relationship was obviously deteriorating considerably.  Had the effects been as extreme as each deposes to, one might have expected that enquiries would have been made by or on their behalf as to the allocation of a trial date to bring the matter to finalisation. 
41. [41]
    I do accept that having the spectre of litigation, and the cost burden that necessarily entails, hanging over them for about five years has had a detrimental effect on them. 
42. [42]
    The defendant contends he has suffered prejudice both through the inherent effect of delay on the memories of witnesses and through the loss of recorded evidence the plaintiff asserted he held, at one point.
43. [43]
    Dealing with the latter issue first, and assuming there was such a recording as initially asserted by the plaintiff, it will be a matter of potentially fertile cross-examination as to why independent proof of the defamatory utterance was not secured.  While there is an obvious disadvantage in the asserted loss of the potential evidence which he asserts would have proven his case, avenues of cross-examination going to the central issue of credit remain open.
44. [44]
    Nonetheless I accept that a delay of five years will necessarily affect witnesses’ memories, thereby affecting the efficacy of cross-examination.  I also accept this is potentially a significant disadvantage where some of these witnesses are variously of mature years and quite young.  It is notorious, particularly in the case of youthful witnesses, that the earlier that witnesses’ accounts are recorded the more accurate they are likely to be.
45. [45]
    Finally, the plaintiff cannot and does not attempt to blame the delay on his legal representatives.  It is clear that the litigation was being handled by his wife, also a solicitor, before he took over the conduct of the matter personally.  This is therefore not one of these matters where the Court will be more reluctant to dismiss the proceeding where the dilatory conduct of the matter is not the fault of the plaintiff.
46. [46]
    There are matters which favour the grant of leave, and the failure to allocate a trial date in the District Court after transfer is an unusual feature.  But the plaintiff was under an obligation to proceed in an expeditious way.  While some of the period of delay is explained, the reality is that nothing of substance had been done to advance a matter that was ready for trial, and the defendant has suffered disadvantage as a result. 
47. [47]
    As has been noted in previous cases, the Courts are now less tolerant of delay than they were in the past.^[17]  I also consider it significant that the legislature has seen fit to limit the time for commencement of defamation actions to 12 months, thereby signalling a policy of promoting the early resolution of these types of disputes.  The delay which has been experienced in this matter is not consistent with that policy.
48. [48]
    Further, as observed by Atkinson J in Tyler v Custom Credit Corp Ltd & Ors:^[18]

“Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers.”

49. [49]
    Notably, the plaintiff’s application for leave to take a further step was not proactively taken. It was brought only in response to the defendant’s application for dismissal for want of prosecution, and so this is not a case where the plaintiff can be said to have proactively taken steps to rectify the delay.
50. [50]
    Notwithstanding the features that favour a grant of leave to the plaintiff, I consider that good reason has not been demonstrated as to why the plaintiff should be allowed to take a further step in these proceedings.
51. [51]
    While theoretically it would be possible to refuse leave to take a further step to the plaintiff and not dismiss the proceeding on the defendant’s application that would be undesirable, as it would leave the proceeding unresolved.  Accordingly, it is appropriate that the defendant’s application for the dismissal of the proceeding be granted.

Costs

52. [52]
    There is no reason why the cost of these applications should not follow the event, and the plaintiff’s Counsel accepted that to be the case in the event his client did not succeed. However, there is still the issue of the costs of the proceeding to be determined given my orders will finalise the proceeding. For that reason they will be reserved.
53. [53]
    I will hear the parties as to costs of the proceeding.

Orders

1. The defendant’s application is granted.
2. The proceeding numbered 2306/20 and commenced in the Supreme Court on 20 December 2018 is dismissed.
3. The plaintiff’s cross-applications are refused.
4. The costs of the applications before me are reserved.
5. I will hear the parties as to the costs of the proceeding.