MQ v SC
[2019] ACTCA 29
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | MQ v SC |
Citation: | [2019] ACTCA 29 |
Hearing Dates: | 6 June 2018 and 20 September 2019 |
DecisionDate: | 20 September 2019 |
Before: | Loukas-Karlsson J |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL – PRACTICE AND PROCEDURE – application to dismiss appeal for want of prosecution – where appellant ordered to progress appeal but no further action taken – where there is an absence of satisfactory reasons for delay – appeal dismissed for want of prosecution |
Legislation Cited: | Court Procedures Rules 2006 (ACT) rr 5191, 5603 Supreme Court Act 1933 (ACT) s 37J |
Cases Cited: | Davis Samuel Pty Ltd v Commonwealth of Australia [2016] ACTCA 22 Greenwood v Irving [2018] ACTSC 310; 86 MVR 406 MQ v SC [2017] ACTSC 221 |
Parties: | MQ ( Appellant) SC ( Respondent) |
Representation: | Counsel No appearance ( Appellant) Rachel Bird ( Respondent) |
| Solicitors No appearance ( Appellant) Rachel Bird & Co ( Respondent) | |
File Number: | ACTCA 41 of 2017 |
Decision under appeal: | Court: ACT Supreme Court Before: Elkaim J Date of Decision: 14 August 2017 Case Title: MQ v SC Citation: [2017] ACTSC 221 Court File Number: SCA 62 of 2014 |
LOUKAS-KARLSSON J:
Introduction
This matter was listed for directions on 20 September 2019 in light of orders made on the last occasion regarding the progress of the appeal. Specifically, Order 4, made on 6 June 2018, was as follows:
In the event that the appellant does not progress the appeal proceedings with appropriate effort, the matter will be referred to the Court of Appeal pursuant to rule 5603 of the Court Procedures Rules 2006 – Want of Prosecution of Appeal.
Other orders that were made on that date included a requirement that the respondent file and serve a Notice of Intention to Respond within 7 days and for the appellant to comply with a number of requirements under Practice Direction No 1 of 2016 (the Practice Direction).
On 14 June 2018, the respondent filed a Notice of Intention to Respond.
The appellant did not file any of the documents required by the 6 June 2018 orders, nor any other document or application since that date.
When this matter came before me on 20 September 2019 for directions, it had been 1 year, 3 months and 15 days since the above orders were made.
The directions listing was originally set down for 30 August 2019. On 27 August 2019, the Registry was copied in on an email from the appellant stating she had received legal advice but did not have legal representation and therefore requested an adjournment. On 28 August 2019, in order to allow time for the appellant to gain legal representation for the matter, an adjournment was granted until 20 September 2019.
Since the notification of the adjourned listing, the appellant has sent various emails both to the Registry and to my chambers, which include the following:
(a) a request that “the employment of the Court Magistrates, Judges, Judiciary Council, principal Registrar, ombudsman and court Registrar, Deputy Registrar, court registry” be terminated (email dated 4 September 2019);
(b) a request that “all orders made against me from 2014-2019” be dismissed without further court appearance (email dated 17 September 2019);
(c) a statement that the appellant had not yet secured legal representation and a further request that all orders against her should be dismissed (email dated 18 September 2019); and
(d) a statement that the appellant could not appear in court due to medical conditions, unsupported by a medical certificate (email dated 18 September 2019).
On 20 September 2019, I dismissed the appeal for want of prosecution. The appellant made no appearance.
Background
This matter arises from a Notice of Appeal dated 11 September 2017 appealing a decision made by Elkaim J on 14 August 2017 (MQ v SC [2017] ACTSC 221).
That decision was itself an appeal from the decision of Magistrate Fryar on 8 July 2014. Magistrate Fryar had dismissed a personal protection order resulting from allegations by the appellant of stalking and assaults by the respondent.
Elkaim J dismissed the appeal and ordered the appellant pay the respondent’s costs of the appeal.
On 15 May 2018, the respondent filed an application seeking the present appeal be dismissed and the appellant pay the respondent’s costs. The application was heard on 6 June 2018 and the orders outlined above were made.
The Rule
Pursuant to s 37J(1)(h) of the Supreme Court Act 1933 (ACT) the Court of Appeal may be constituted by a single judge for hearing and deciding the dismissal of an appeal for want of prosecution.
Rule 5603 of the Court Procedures Rules 2006 (ACT) relevantly provides:
5603 Appeals to Court of Appeal—want of prosecution of appeal
…
(2)This rule applies if an appellant—
(a) has not done anything required to be done under these rules during a period of 3 months after the day the requirement arises; or
(b) otherwise has not prosecuted the appellant’s appeal with appropriate effort during a period of 3 months after the day the last step in the proceeding was taken.
(3)The Court of Appeal may—
(a) order that the appeal be dismissed for want of prosecution and confirm the order appealed from; or
(b) on its own initiative, set a time for the doing of a thing required to be done in relation to the appeal and—
(i) at the same time order that, if the appellant does not do the thing within the time, the appeal will be dismissed for want of prosecution and the order appealed from confirmed; or
(ii) if the appellant does not do the thing within the time—order that the appeal be dismissed for want of prosecution and confirm the order appealed from; or
(c) make any other order the Court of Appeal considers just.
Principles
I have had regard to the principles relevant to the exercise of the discretion under r 5603 as set out in detail by Burns J in Davis Samuel Pty Ltd v Commonwealth of Australia [2016] ACTCA 22 at [68]-[70]:
The principles guiding the exercise of the inherent jurisdiction to dismiss an appeal for want of prosecution were considered by the Western Australian Court of Appeal in Roddan v Gwilliam & Anor [2005] WASCA 209, when the Court said, at [17] – [18]:
The principles in this area are similar to those which apply in the case of the court's inherent jurisdiction to dismiss an action for want of prosecution: Muto v Faul [1980] VR 26 (Full Court); Roddan v R [2005] WASCA 87, per Malcolm CJ at [41], per McLure J at [49].
The Court recently had occasion to review the principles to guide the exercise of the discretion in relation to the dismissal of an action for want of prosecution in Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93. At [99], [100] and [103], Steytler P and Owen JA said:The general principles identified in … [Birkett v James [1978] AC 297 and Lewandowski v Lovell (1994) 11 WAR 124] include consideration of these points:
(a) whether any default has been intentional and contumelious, for example, disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or
(b) whether there has been inordinate and inexcusable delay on the part of the plaintiff or his or her lawyers, and, if so
(c) whether such delay:
(i) will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action; or
(ii) is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.
But as with so many areas in the law, it is one thing to identify general principles and another properly to apply them. It should always be borne in mind that the power to dismiss for want of prosecution calls for the exercise of discretion. It is a discretion that must be exercised judicially but is otherwise open. It exists to serve the ends of justice. Caution should therefore be employed so that these general principles are not elevated to the level of a 'test' or a 'rule'. They are more appropriately to be seen as guidelines indicating some of the matters to which the court should have regard in exercising the discretion. The court's discretion to dismiss an action for want of prosecution is not fettered by any absolute or inflexible rules. There are however five matters to be considered which will usually be relevant to the court's decision to exercise the discretion:
• the length of the delay;
• the explanation for the delay;
• the hardship to the plaintiff if the action is dismissed and the cause of the action left statute-barred;
• the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; and
• the conduct of the defendant in the litigation.
Ulowski v Miller [1968] SASR 277 at 280 (FC); Dzienciol v Logie Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1998.
…
In our view it is inappropriate to take the considerations identified in Birkett or the five matters mentioned in Ulowski and use them as a check list to be ticked off one after the other. They are all things to which the court should have regard and they will usually be persuasive. But the absence of one or more of them from the credit or debit side of the check list process will not necessarily determine the result. It will always be necessary for the court to stand back and ask: what does justice, in all the notions or senses of it that are relevant, require in the circumstances of this case?
See also per Roberts-Smith JA, at [161]–[166].
The relevant principles were examined at length by Penfold J in Commonwealth of Australia v Australasian Correctional Services Pty Ltd [2013] ACTSC 37 at [36] – [41]:
The parties agreed that the matters to be considered in deciding whether to exercise the power to strike out for want of prosecution were as set out in Weston v Publishing and Broadcasting Ltd (2011) 83 ACSR 206; [2011] NSWSC 433 (13 May 2011) by Ward J, who noted first at [498] that:
It has been held that the principles the court applies are the same whether it acts under the rules or the inherent jurisdiction. (citations omitted)
Her Honour went on:
The power to dismiss an action for want of prosecution is not confined by rigid guidelines. Although delay is the threshold circumstance that potentially enlivens the discretion to dismiss an action, delay is a relative concept and the significance of any delay must depend on the particular circumstances of the case involved.
The proposition that the power to dismiss an action for want of prosecution should be exercised only where the plaintiff’s default has been intentional and contumelious or where there has been inordinate and inexcusable delay giving rise either to a substantial risk that a fair trial would not be possible, or to a risk of serious prejudice to the defendant has been rejected as unduly restrictive of the true scope of the power.
The ultimate question (keeping in mind the overriding purposes mandated by ss 56–59 of the Civil Procedure Act) is whether, balancing the prejudice to the respective parties by making or not making an order dismissing the proceedings, justice demands that the action be dismissed. (citations omitted)
Sections 56–59 of the Civil Procedure Act 2005 (NSW) cover similar ground to r 21 of the Court Procedures Rules 2006 (ACT), although the NSW provisions are more detailed and appear to impose more specific obligations on parties.
Ward J went on to identify the specific matters to be considered in deciding whether justice demands that an action be dismissed:
Simpson J in [Hoser v Hatcher [1999] NSWSC 527] at [21]–[30], with whose analysis Levine J agreed in Gill v Eatts [1999] NSWSC 1056 at [61] said this of the balancing exercise to be undertaken on such an application:
(2) the discretion should be exercised only in a clear case where it is manifestly warranted; per Kirby P; as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of the discretion; (citations omitted)
(3) any explanation offered by the plaintiff for the delay in proceeding must be considered; (citations omitted)
(4) personal blamelessness on the part of a plaintiff (as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant. (citations omitted)
(5) a defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage. A defendant has two choices: to attempt to prod the plaintiff into action, or to stand by, doing nothing, trusting that time will bring about the slow death of the action. Either choice represents something of a gamble, dependent upon future events that the defendant is unable with any degree of confidence to predict. If the defendant opts for the former course, of prodding the plaintiff into action, it may succeed in doing so, precluding an application to strike out. On the other hand, if the plaintiff remains inert, the defendant’s case for striking out strengthens with passing time. If the defendant chooses the latter option and takes no action, the plaintiff may take no further steps, or may take no further steps until such irremediable prejudice is caused to the defendant that the application to strike out will succeed; if, however, some other event galvanises the plaintiff into action the defendant, having done nothing to progress the matter, can hardly be heard to complain of the plaintiff’s earlier inactivity; (citations omitted)
(6) delay between the date the cause of action arose and the commencement of the proceedings may be a relevant factor. But in my view, this circumstance must be treated with some caution. The weight that can be accorded to that delay is limited. Where an action is commenced within the period provided for by an applicable statute of limitations, it would not ordinarily be appropriate to take that period into account. However, if a plaintiff has delayed significantly in the commencement of the proceedings, and that delay is followed by further lethargy in the advancement of the proceedings, the effect of the initial (but permissible) delay is compounded. The real question is not the length of the delay, but the impact that delay has upon the defendant’s capacity properly to defend the plaintiff’s claim. That will be a question of fact in each case. While there may be some prejudice presumed by reason of the passage of time, much will depend upon the nature of the proceedings, and the identification of the issues involved in the litigation. Where, for example, at the close of pleadings it can be seen that there are disputed questions of fact dependent upon the oral evidence of witnesses, or their recollections, the prejudice will plainly be greater than in cases that depend essentially upon the application of legal principle to largely undisputed facts, or upon disputed questions of fact that will be resolved by reference to documentary or other objective evidence not likely to be affected by the effluxion of time; (citations omitted)
(7) the onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or death of witnesses, the fading of their recollections, or the destruction of records, are some obvious examples of the kind of prejudice that might arise;
(8) prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; delay in the commencement of proceedings by a plaintiff is sometimes taken as evidence contra-indicating prejudice to the plaintiff in the sense that he/she/it has evinced no interest in his/her/its own case. Such an inference may be contra indicated by explanatory evidence; in this regard the plaintiff’s personal responsibility for the delay is an important factor as is any explanation provided for the delay; (citations omitted)
(9) what the defendant has (or has not) done by way of preparation for trial may be a factor. This is a distinct question from that concerning any steps taken (or not taken) by the defendant in prompting the plaintiff to action. A defendant who has not interviewed witnesses, taken statements or collected documents, after being served with the claim, has a less meritorious complaint about the effect of prejudice caused or presumed by reason of delay; (citations omitted)
(10) the plaintiff’s prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff’s case is strong (absent the kind of prejudice to the defendant to which I have referred) it is less likely that justice will be done by striking the action out; (citations omitted)
(11) the exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics. The ultimate aim of a court is the attainment of justice. To adapt the words of the High Court in [Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146], discretions such as that presently invoked ought not to be used to supplant the overall aim of the attainment of justice. (other citations omitted)
Applying those principles to the case at hand, I accept that rigid formulae should not be applied and the discretion should be exercised only in a clear case (a conclusion that can only be reached having regard to the other factors to which reference is there made). (emphasis in original)
The summary quoted by Ward J identifies both factual issues that may be relevant, and principles to be applied, in exercising the strike-out power.
An earlier consolidation of relevant matters was referred to in the ACT case of Caterina Raso v Mark Ronald Bayliss [2005] ACTSC 94 (Raso), in which Gray J, considering a case in which the plaintiffs had taken no steps for 14 years after bringing their action, said at [18]:
In Tyler v Custom Credit Corp Ltd [2000] QCA 178, before the Full Court of Queensland, Atkinson J (with whom McMurdo P and McPherson JA agreed) set out a helpful list of matters to be considered (at [2]). These include:
(1) How long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
(2) How long ago the litigation was commenced or causes of action were added;
(3) What prospects the plaintiff has of success in the action;
(4) Whether or not there has been disobedience of Court orders or directions;
(5) Whether or not the litigation has been characterised by periods of delay;
(6) Whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
(7) Whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecuniosity;
(8) Whether the litigation between the parties would be concluded by striking out [in this case, dismissing] of the plaintiff’s claim;
(9) How far the litigation has progressed;
(10) Whether or not the delay has been caused by the plaintiff’s lawyers being dilatory …;
(11) Whether there is a satisfactory explanation for the delay; and
(12) Whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial. [Footnotes omitted]
These matters show the wide ambit of matters that the court is to consider in the exercise of its discretion.
See also Snaidero v Crampton & O’Sullivan [2014] ACTSC 262, and Blunden v Commonwealth of Australia [2014] ACTSC 123.
(emphasis in original).
I also note the following passage from McWilliam AsJ in Greenwood v Irving [2018] ACTSC 310; 86 MVR 406 at [20], in considering the analogous rule (r 5191) with respect to Supreme Court appeals:
Relevant (although neither mandatory nor exhaustive) considerations include:
(a) how long ago the events, the subject of the proceedings, occurred and any delay before the litigation was commenced;
(b) what prospects of success the appellant has on the appeal;
(c) whether there has been disobedience to court orders;
(d) whether the appeal has been characterised by periods of delay;
(e) the degree of responsibility of the appellant for the delay;
(f) whether the litigation between the parties would be concluded by dismissing the proceedings;
(g) whether the respondent would suffer prejudice if the appeal were not struck out;
(h) what preparation the respondent had done towards the hearing of the appeal; and
(i) whether there was a satisfactory explanation for the delay.
Consideration
In the present case, I have had regard to the following matters:
(a)the subject of the proceeding, the protection order, was dismissed in July 2014. The notice of appeal against the decision of Elkaim J was lodged 11 September 2017, now over two years ago;
(b)having regard to the grounds of appeal, I do not consider there to be strong prospects of success;
(c)there is no indication the appellant has complied with any of the orders made on 6 June 2018;
(d)the appeal has been characterised by periods of delay;
(e)the responsibility for the delay appears to be exclusively that of the appellant;
(f)the dismissal of the appeal would conclude the proceedings;
(g)in compliance with the orders of 6 June 2018, the respondent filed a Notice of Intention to Respond on 14 June 2018; and
(h)there is not a satisfactory explanation for the delay.
Orders
Pursuant to r 5603 Court Procedures Rules 2006 (ACT), the appeal is dismissed for want of prosecution and the orders made on 14 August 2017 by Elkaim J are affirmed.
The appellant is to pay the respondent’s costs of the appeal.
| I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: 18 October 2021 |
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