Lu v Fenson Legal Pty Ltd

A complex issue arose here: whether the Court of Appeal was required to apply the principles in House v The King applicable to the review of discretionary decisions or the “correctness” standard in determining an appeal from a decision to refuse leave to proceed under r 389 Uniform Civil Procedure Rules 1999 (UCPR) and to dismiss a claim for want of prosecution. The Court concluded that, given the nature of the decision before the primary judge and the fact that there was not only one legally correct outcome, in this instance, a review of the decision should be on the discretionary standard.

Bond JA, Boddice JA and Bradley J

5 September 2025

The applicant sought leave to appeal from orders made by the primary judge in the District Court dismissing a claim for want of prosecution, arguing that the primary judge ought to have allowed her cross-application for leave to proceed. [1]. Whilst noting that in accordance with House v The King (1936) 55 CLR 499, for more than 25 years the Court has exercised its appellate discretion after an evaluative judgement of the particular circumstances of the case, [2], following the recent High Court decisions GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 and Moore (a pseudonym) v The King (2024) 98 ALJR 1119, that approach falls to be reconsidered. [3].

The "correctness standard" and the House v The King standard are separate and unique standards of appellate review, distinguished by whether the primary decision involved only one correct outcome (correctness standard) or a range of legitimate outcomes (House v The King standard). Briefly, as explained in Moore (a pseudonym) v The King (2024) 98 ALJR 1119, 1124 [15], in determining which standard of review applies, it is not the court’s task to consider whether the reasoning to be applied is evaluative or in respect of which reasonable minds may differ but rather, “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’”.

In the current matter, the respondents’ application for dismissal was founded on UCPR r 280, s 22 Civil Proceedings Act 2011, and further or alternatively on the inherent jurisdiction of the District Court. The applicant’s cross application for leave to proceed was based on UCPR r 389(2).[6]. There was no contention that the proceeding was an abuse of process because a fair trial could no longer be had.

In relation to the decision which had been made at first instance, Bond JA clarified that it “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].

The submissions on the standard of review of the primary judge’s decision

Whilst the applicant contended that the decision of the primary judge to dismiss the proceeding for want of prosecution warranted application of the correctness standard of review, conversely the respondents argued it was in order for the Court to apply the traditional House v The King principles. [55]–[56]. Citing Cooper v Hopgood & Ganim [1999] 2 Qd R 113, the respondents contended that since the primary judge’s determination of the application to dismiss under s 22(2) involved the evaluation of a range of relevant considerations for which various legally permissible conclusions on whether to strike out the proceeding were open, it followed that there was more than one permissible answer. It was not the case that the primary judge had been constrained by rigid rules. [57]–[58]. Essentially, the respondents argued that a true discretionary decision is one where a judge is able to come to different answers without falling into error, and elects one rather than the others. It is not the case that the question demands a uniquely correct outcome. [78].

Consideration

In terms of whether the correctness standard of review or the House v The King standard applied to the appeal, the court held as follows (Bradley JA; Boddice JA agreeing):

(1)The correctness standard is applicable in relation to matters where the relevant prejudice arises from facts or circumstances which are external to the court process, for example bringing 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 does not have any application in circumstances where the prejudice arises from conduct in the proceeding, for example delay which occurs after bringing the proceeding or contravening an undertaking to the court. [75].

(2)That in the current matter having regard to the statutory context of the power exercised by the primary judge under s 22 Civil Proceedings Act 2011, including rr 5 and 389 UCPR, the decision before the primary judge was properly defined as one concerning the practice and procedure of the court about a proceeding which had already been stayed. A decision-maker in the position of the primary judge could have regard to an unlimited range of potentially relevant considerations, and there was scope to balance those considerations against the effects of the applicant’s past delay in the proceeding. There was more than one legally correct outcome. Accordingly, it was appropriate that a review of the decision be on the discretionary standard. [80].

(3)That a plaintiff’s explanation for the delay is important, particularly with respect to rr 5 and 389. In the event the explanation was deemed credible and satisfactory, it would be capable of rebutting 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. [83].

Disposition

Since no reviewable error had been demonstrated by the applicant, the application for leave to appeal was dismissed. The applicant was ordered to pay the respondents’ costs of the application.

A Jarro