Mepham v Chief Executive, Department of Natural Resources and Mines
[2013] QLC 37
•26 June 2013 [Ex tempore]
LAND COURT OF QUEENSLAND
CITATION: Mepham & Ors v Chief Executive, Department of Natural Resources and Mines [2013] QLC 37 PARTIES: Norman Francis Amoore Mepham, Marie Agnes Mepham and Derek John Amoore Mepham
(applicants)v. Chief Executive, Department of Natural Resources and Mines
(respondent)FILE NO: SCA019-11 DIVISION: General Division PROCEEDING: Application made by the respondent to have the matter struck out for want of prosecution DELIVERED ON: 26 June 2013 [Ex tempore] DELIVERED AT: Brisbane HEARD ON:
26 June 2013
HEARD AT: Brisbane MEMBER: Mr PA Smith ORDERS: 1. The applicants be required to produce affidavit evidence from their experts setting out:
a. that those experts have been engaged by the applicants;
b. that fees for their services have been paid or as the actual case may be; and
c. that those experts are in a position to provide the expert reports to this Court by a date as nominated by those experts. However, in all the circumstances the Court requires any such date nominated by the experts to be no later than mid October 2013.
2. The affidavit evidence is to be filed in this Court and served on the respondent by no later than 4pm on 9 August 2013.
3. In the event that the affidavit evidence is not filed by the applicants by 9 August 2013, this matter will be struck out for lack of prosecution by the applicants without the requirement for any further appearance from either the applicants or the respondent.
4. The applicants pay the respondent costs for today’s proceedings in the fixed sum of $2000.
5. Order 8 of the Order dated 15 March 2013 be vacated.
6. In the event that the matter is not struck out, the matter be listed for further review and directions at 11am on 13 August 2013 in Court 40, Level 8, 363 George Street, Brisbane.
CATCHWORDS: PRACTICE AND PROCEDURE – Strike out application – factors to be considered – failure of applicants to take steps over a lengthy period
Calcifer Industrial Minerals Pty Ltd v Daraleigh Pty Ltd as Trustee for the DC and ML Dillon Trust [2010] QLC 0115
APPEARANCES: Mr Derek Mepham, on behalf of the applicants
Mrs Thea Johnson, Senior Lawyer for the Department of Natural Resources and Mines
[The matter was called on for review and directions due to a further extension request made by the applicant, Mr Derek Mepham, by way of email on 15 June 2013. The extension request was strongly opposed by the respondent. During the review and directions an oral application to have the matter struck out for want of prosecution was made by Mrs Thea Johnson on behalf of the respondent. Ex tempore reasons were then delivered.]
I have before me an application made by the respondent that this matter be struck out for want of prosecution. This situation arises following an application by the applicants for an extension of time to comply with various Court orders specifically relating to the provision of expert reports. This matter has had a long history before the Court as detailed in the affidavit of Mrs Thea Johnson, filed on 25 June 2013. The contents of that affidavit have not been challenged by the applicants, and its contents are taken as being correct. As the affidavit of Mrs Johnson shows, there have been numerous extensions and delays occasioned by the applicants in the provision of expert reports to this Court.
It has been indicated on a number of occasions that the applicants have engaged the services of professional experts, in particular the firm Gilbert & Sutherland, to provide the applicants with reports relating to their areas of expertise. Unfortunately, the Court has no documented proof before it backing up any of the statements made by the applicants as to the engagement of Gilbert & Sutherland and, indeed, as to who is working on the reports at Gilbert & Sutherland.
The law relating to striking out of applications has been well summarised in a decision of this Court in Calcifer Industrial Minerals Pty Ltd v Daraleigh Pty Ltd as Trustee for the DC and ML Dillon Trust, which was reported in.[1]
[1] [2010] QLC 0115.
In that decision of his Honour Mr Cochrane of this Court, there was a detailed summary given of the law as regards striking out of applications. I note, in particular, paragraphs 18 to 25 of the decision in Calcifer in which the following summary of relevant case law appears:
“[18]The Quinlan v Rothwell decision contains a number of observations apposite to the present circumstances. Those observations include:
‘[4]I at once observe that the discretion to dismiss for want of prosecution may these days confidently be exercised, in appropriate cases, with more robustness than would previously have been considered appropriate. Brisbane South Regional Health Authority v Taylor (1996) 186 C.L.R. 541, 551-552 jurisprudentially signalled that shift, and it is legislatively suggested through the Uniform Civil Procedure Rules. The focus of r. 5 rests strongly on ‘the just and expeditious resolution of the real issues … at a minimum of expense’, and avoiding undue delay, expense and technicality. The rule has gone to the length of expressly confirming that breach of a party’s ‘implied undertaking’ ‘to proceed in an expeditious way’ may attract sanctions including, as per the proffered example, dismissal of the proceeding.’ (per de Jersey C.J.)
[19]In a similar vein, Thomas JA observed
‘[24]There is a distinction between the setting aside of a proceeding for a specific non-compliance and a dismissal for want of prosecution. The dismissal of an action or proceeding because of non-compliance with a rule or a court direction has long been authorised by particular rules of court, as has the power to set aside proceedings, such as that recognised in the former Order 93 rule 17. The powers of dismissal for abuse of process and for want of prosecution have generally been regarded as recognition of a wider inherent power. In an appropriate case a guillotine order might be made with the objective of providing a recalcitrant party with added incentive to comply with directions, although some restraint was thought desirable in the peremptory making of such an order when a party might be in difficulty in performing within the prescribed time, or when the issues were not clear cut.6 Repeated non-compliance with the rules or directions thereunder was sometimes regarded as evidence of “contumelious disregard”7 of the rules and therefore as relevant to the exercise of a court's discretion to dismiss for want of prosecution or to excuse delay.’
[28]It is a noteworthy feature of recent cases that courts appear more ready than before to infer that substantial delays will substantially reduce the chance of a fair trial. Such an approach has no doubt been influenced by the eloquent statement of McHugh J in Brisbane South Regional Health Authority v Taylor concerning the prejudice that delay produces whether or not the actual prejudice can be clearly articulated. The present approach has also been influenced, I think, by a change in attitude which is reflected in and encouraged by the additional provisions now contained in the Uniform Civil Procedure Rules. Recently Gleeson CJ expressed, in an out of court statement, his perception of what I understand to have been referred to in Cooper v Hopgood & Ganim as a change in attitude since Birkett v James:
‘The pressure of business before the courts, and the necessity to respond to demands for judicial involvement in case management, has resulted in the acceptance by judges of responsibilities of a kind their predecessors never acknowledged. Forty, and even fifteen, years ago, it was not regarded as part of the role of a judge to manage the progress of cases towards readiness for trial, and judges were discouraged from undue intervention in the progress of cases during trial. As a rule, it was up to the parties and their lawyers to prepare cases for hearing, in such manner, and at such speed, as they desired. Interlocutory proceedings were available if one party sought judicial intervention for a special purpose. But, ordinarily, the role of a judge was to deal with cases once they had reached the head of a queue. And in dealing with a case which came on for trial, the judge assumed a relatively passive role. Things are different now. Courts are expected to manage their lists actively, and trial judges are expected to adopt a role most of their predecessors would have regarded as inappropriately interventionist.’
[29]There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules. The present respondents, like the appellant, appear to have been content over very lengthy periods to allow the action to go to sleep.
[30]On my reading, the combination of rules 5, 280 and 371 of the UCPR re-affirm the Supreme Court's longstanding powers of dismissal. Now the powers expressly mentioned in those rules have also been conferred on the District Court and Magistrates Court. Although this court's inherent power remains, these rules are a sufficient starting point in the determination of such applications. Rule 280 is an express and untrammelled statement of the power of all three courts in Queensland to dismiss a proceeding for want of prosecution. Subject to what is said below, the wide-ranging factors that have been identified as potentially relevant to such applications, such as those mentioned in Cooper v Hopgood & Ganim, will continue to guide courts in exercising the power. In addition, rule 5 gives express recognition to the importance of expeditious resolution of issues in proceedings. In my view the nature of the power of this court has not been altered, but the rules are a clear indication of the change in attitude that has independently taken place in courts throughout Australia. They suggest that courts will now be less tolerant of delay and that the expedition of proceedings should be encouraged to a greater extent than was formerly the case.’
[20]In the Field v Luxor decision His Honour dismissed an action for want of prosecution in circumstances where there had been a repeated failure by a plaintiff seeking damages arising out of a contractual relationship. That case like the present, was characterised by an absence of any proper explanation for the delay. Ultimately, it seemed to descend to a contention that the matter was complex and more time was required than expected. This was overlayed upon other difficulties in the solicitor’s office.
[21]His Honour P Lyons J observed (para 38):
‘[38]It has long been a “well-established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases.” To similar effect, in Queensland v J L Holdings Pty Ltd, in respect of an application to amend a defence, Dawson, Gaurdron and McHugh JJ said:
‘Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.’
[22]Later having referred to a number of cases including Mango Boulevard Pty Ltd v Spencer & Ors, Cooper v Hopgood & Ganim and Quinlan v Rothwell & Anor His Honour observed that rules now permitting the striking out and/or dismissal of proceedings were ‘a clear indication of a change of attitude that has taken place in Courts throughout Australia’.
[23]Having considered the facts of that case, His Honour observed:
‘[58]In my view, against the background of the case-flow management regime which I have mentioned, the repeated and persistent failures by the plaintiff to comply with orders of the Court, supported by explanations which lack credibility, and where the plaintiff is not prepared to commit to a trial until an indefinite time after November this year, the plaintiff’s conduct is in a category which to me seems comparable to intentional and contumelious default. If the test from Birkett v James were to be applied, it would result in the dismissal of the plaintiff’s claim. However, its authority in some contexts has been doubted.’
And later at para 61 His Honour observed:
‘[61]As mentioned, in Cooper, the Court of Appeal took the view that the discretion was a broad one, and that a number of factors are potentially relevant to its exercise. Atkinson J, when a member of the Court of Appeal in Tyler v Custom Credit Corp Ltd & Ors and again in Arc Holdings Pty Ltd v Riana Pty Ltd and Another identified a number of such factors. Some of these will be mentioned briefly.’
[24]The decision of Atkinson J in the Tyler v Custom Credit Corporation case has been extensively referred to in a number of Courts and decisions. As P Lyons J pointed out (para 63) in the Field v Luxor decision one of the factors referred to in Tyler was whether the litigation between the parties would be concluded by striking out the plaintiffs claim.
[25]In that case His Honour was concerned about whether the struck out plaintiff would be able to institute fresh proceedings. His Honour was uncertain about that but in any event he was still minded to strike out the proceedings.”
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Footnotes omitted
As is clear from the authorities, striking out of an application is a severe step, but one which is, at times, justified in order to ensure the progress of justice occurs within this State, in an efficient and time-appropriate manner.
In this case, I do believe that Mrs Johnson has made out the basis of a case for this matter to be struck out. However, I am concerned that if what Mr Mepham has said is correct, that he has engaged a firm of experts, and has paid a considerable sum of money to those experts for the preparation of reports which are substantially complete, then it would appear to be perhaps excessive, at this stage, to strike the matter out without allowing Mr Mepham the final opportunity to establish conclusively before the Court that Messrs Gilbert and Sutherland have been commissioned and are in a position to make the required reports to this Court.
Accordingly, I propose making orders that the applicants be required to produce affidavit evidence from their experts, setting out that those experts have been engaged by the applicants, that fees for their services have been paid, or whatever the actual case may be, and that those experts are in a position to provide the expert reports to this Court by a date as nominated by those experts. However, in all the circumstances, I require any such date nominated by the experts to be no later than mid October 2013. The affidavit evidence that I require from the experts is to be filed in this Court and served on the respondent no later than 4 pm on Friday, 9 August 2013.
In the event that the affidavit evidence is not filed by the applicants by this time and date, then this matter will be struck out for lack of prosecution by the applicants, without the requirement for any further appearance by either the applicants or the respondent.
[Following further discussion, an order was also made that the applicants pay the respondent’s costs fixed in the sum of Two Thousand Dollars ($2,000.00)]
Orders
1.The applicants be required to produce affidavit evidence from their experts setting out:
a. that those experts have been engaged by the applicants;
b. that fees for their services have been paid or as the actual case may be; and
c. that those experts are in a position to provide the expert reports to this Court by a date as nominated by those experts. However, in all the circumstances the Court requires any such date nominated by the experts to be no later than mid October 2013.
2.The affidavit evidence is to be filed in this Court and served on the respondent by no later than 4pm on 9 August 2013.
3.In the event that the affidavit evidence is not filed by the applicants by 9 August 2013, this matter will be struck out for lack of prosecution by the applicants without the requirement for any further appearance from either the applicants or the respondent.
4.The applicants pay the respondent costs for today’s proceedings in the fixed sum of Two Thousand Dollars ($2000.00).
5.Order 8 of the Order dated 15 March 2013 be vacated.
6.In the event that the matter is not struck out, the matter be listed for further review and directions at 11am on 13 August 2013 in Court 40, Level 8, 363 George Street, Brisbane.
P A SMITH
MEMBER OF THE LAND COURT
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