Page v The Central Queensland University - [2006] QCA 478

SUPREME COURT OF QUEENSLAND

CITATION:

Page v The Central Queensland University [2006] QCA 478

PARTIES:

JAMES SMITH PAGE
(plaintiff/appellant)
v
THE CENTRAL QUEENSLAND UNIVERSITY
(defendant/respondent)

FILE NO/S:

Appeal No 4786 of 2006
SC No 1258 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 November 2006

DELIVERED AT:

Brisbane

HEARING DATE:

10 November 2006

JUDGES:

Williams and Keane JJA and White J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal dismissed1.

Appellant to pay the respondent's costs of the appeal2.

CATCHWORDS:

PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION - appellant commenced action in January 1997 - appellant sought to recover damages from respondent for loss allegedly suffered because of respondent's failure in 1991 to admit appellant to course of PhD study and failure to award scholarship to appellant - appellant made a number of complaints to agencies of the executive government seeking redress for the wrong allegedly done him by the respondent - respondent applied for dismissal of action for want of prosecution in March 2006 - learned primary judge acceded to respondent's application - whether appellant's delay had prejudiced prospects of a fair trial of his claim - whether occasion for exercise of power conferred by s 85(2) of Supreme Court Act 1991 (Qld) had arisen - whether appellant denied natural justice

Supreme Court of Queensland Act 1991, s 85
Uniform Civil Procedure Rules 1999 (Qld), r 5

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 227 ALR 425, cited
Quinlan v Rothwell [2001] QCA 176; [2002] 1 Qd R 647, cited
Raabe v Brisbane North Regional Health Authority (No 1) [2000] QSC 257; No 2762 of 1994, 31 July 2000, cited
Smits v Roach [2006] HCA 36; (2006) 228 ALR 262, cited

COUNSEL:

M J Foley for the appellant
R M Derrington SC, with D J Schneidewin, for the respondent

SOLICITORS:

Cranston McEachern for the appellant
Minter Ellison for the respondent

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Keane JA and I agree with all that he has said therein. One of the matters which influenced the judge at first instance in deciding to dismiss the action for want of prosecution was that delay on the part of the appellant had seriously prejudiced the respondent. I agree with what the judge at first instance and Keane JA have said in that regard, but would add the following as a specific example of where the respondent has been prejudiced.

In his statement of claim the appellant alleged that he had been admitted to the degree of Master of Education at the University of New England; that degree was completed entirely by research and thesis and he was awarded second class honours, division B. That is not in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] QCA 478
Decision Date: 17 November 2006

CaseChat Overview and Summary

Page, the appellant, initiated legal proceedings against The Central Queensland University, the respondent, in January 1997, seeking damages for alleged losses resulting from the respondent's failure to admit him to a PhD program in 1991 and its refusal to award him a scholarship. The appellant also sought redress through various government agencies. In March 2006, the respondent applied for the dismissal of the action due to the appellant's lack of prosecution. The primary judge agreed with the respondent's application, leading to the appellant's appeal against the decision. The central legal issue was whether the appellant's delay prejudiced the prospects of a fair trial of his claim, whether the conditions for exercising the power under section 85(2) of the Supreme Court Act 1991 (Qld) had been met, and whether the appellant was denied natural justice.

The court examined the relevant provisions of the Supreme Court of Queensland Act 1991 and the Uniform Civil Procedure Rules 1999 (Qld). It considered previous cases such as Batistatos v Roads and Traffic Authority of New South Wales, Quinlan v Rothwell, Raabe v Brisbane North Regional Health Authority (No 1), and Smits v Roach. The court found that the appellant's delay had indeed prejudiced the respondent's prospects of a fair trial and that the conditions for the exercise of the dismissal power were met. The court concluded that the appellant had not been denied natural justice. The court upheld the primary judge's decision to dismiss the action for want of prosecution and dismissed the appeal. Additionally, the court ordered the appellant to pay the respondent's costs of the appeal.

Orders

Orders of the court

Appeal dismissed1.

Appellant to pay the respondent's costs of the appeal2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Page v The Central Queensland University [2006] QCA 478
PARTIES:	JAMES SMITH PAGE (plaintiff/appellant) v THE CENTRAL QUEENSLAND UNIVERSITY (defendant/respondent)
FILE NO/S:	Appeal No 4786 of 2006 SC No 1258 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 November 2006
DELIVERED AT:	Brisbane
HEARING DATE:	10 November 2006
JUDGES:	Williams and Keane JJA and White J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal dismissed1. Appellant to pay the respondent's costs of the appeal2.
CATCHWORDS:	PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION - appellant commenced action in January 1997 - appellant sought to recover damages from respondent for loss allegedly suffered because of respondent's failure in 1991 to admit appellant to course of PhD study and failure to award scholarship to appellant - appellant made a number of complaints to agencies of the executive government seeking redress for the wrong allegedly done him by the respondent - respondent applied for dismissal of action for want of prosecution in March 2006 - learned primary judge acceded to respondent's application - whether appellant's delay had prejudiced prospects of a fair trial of his claim - whether occasion for exercise of power conferred by s 85(2) of Supreme Court Act 1991 (Qld) had arisen - whether appellant denied natural justice Supreme Court of Queensland Act 1991, s 85 Uniform Civil Procedure Rules 1999 (Qld), r 5 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 227 ALR 425, cited Quinlan v Rothwell [2001] QCA 176; [2002] 1 Qd R 647, cited Raabe v Brisbane North Regional Health Authority (No 1) [2000] QSC 257; No 2762 of 1994, 31 July 2000, cited Smits v Roach [2006] HCA 36; (2006) 228 ALR 262, cited
COUNSEL:	M J Foley for the appellant R M Derrington SC, with D J Schneidewin, for the respondent
SOLICITORS:	Cranston McEachern for the appellant Minter Ellison for the respondent