Cooper v Hopgood & Ganim [1998] QCA 114

"In Birkett v. James the consequence of inordinate delay was not a consideration which was in issue. From now on it was going to be a consideration of increasing significance.

Litigants and their legal advisers had therefore to recognise that in the future any delay which occurred would be assessed not only from the point of view of the prejudice caused to the particular litigants whose case it was, but also in relation to other litigants and the prejudice which was caused to the due administration of justice.

The existing rules contained time limits which were designed to achieve the disposal of litigation within a reasonable time scale. Those rules should be observed.

It was already recognised by Grovit v. Doctor (. . . [1997] UKHL 13; (1997) 1 W.L.R. 640) that to continue litigation with no intention to bring it to a conclusion could amount to an abuse of process.

The change in culture which was already taking place would enable courts to recognise for the future, more readily than heretofore, that a wholesale disregard of the rules was an abuse of process.

While an abuse of process could be within the first category identified in Birkett v. James, it was also a separate ground for striking out or staying an action, which did not depend on the need to show prejudice to the defendant or that a fair trial was no longer possible.

Ready recognition that wholesale failure as such to comply with the rules justified an action being struck out, as long as it was fair to do so, would save much time and expense relating to questions of prejudice, and allow the striking out of actions whether or not the limitation period had expired."

These reasons do not constitute a complete abandonment of the guidelines established in Birkett v. James, but they continue the diminution of the authority of that case, so far as the English courts are concerned, begun in Department of Transport v. Chris Smaller (Transport) Ltd [1989] A.C. 1197 and continued in Grovit v. Doctor. In this country, reluctance to apply the Birkett v. James guidelines rigidly was early manifested, by the New South Wales Court of Appeal in Stollznow v. Calvert [1980] 2 N.S.W.L.R. 749. The Court there approved a judgment of Walsh J.A. (as his Honour then was) in Witten v. Lombard Australia Ltd. (1968) 88 W.N. (Pt. 1) N.S.W. 405 at 412, given after the decision of the Court of Appeal in Allen v. Sir Alfred McAlpine & Sons Ltd [1968] 2 Q.B. 229, which laid down the principles later approved in Birkett v. James. Moffitt P. referred with approval to Walsh J.A. having said that:

". . . the exercise of the Court's discretion should not be fettered `by rigid rules', but required `a decision to be reached, upon a balance of the relevant circumstances'".

I am in respectful agreement with that view. Moffitt P. went on to quote further from the reasons of Walsh J.A.:

"Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory. It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised.

I have made these observations because it appears to me that there are some statements in the recent judgments of the English Court of Appeal which tend to restrict to some degree the exercise of the discretion in cases of this kind, so that it becomes something less than the exercise of a full judicial discretion in accordance with what justice seems to require in the circumstances of the particular case. There is a tendency to propound rules which are to govern the exercise of the discretion in the sense that it will be fettered by them. It is entirely proper that, in the exercise of a judicial discretion, guidance should be sought and obtained from decided cases of a similar kind, but I think that care must be taken to ensure that a discretionary power is not trammelled by set rules, by means of which one conclusion is to be automatically reached, regardless of other factors in the case which may point to the opposite conclusion. Therefore, I do not wish to be taken as assenting without qualification to everything that has been said in the recent English cases." (751, 752)

The Full Court of the Federal Court, having been referred in Lenijamar Pty Ltd v. AGC (Advances) Limited [1990] FCA 520; (1990) 27 F.C.R. 388, to Birkett v. James and later English decisions, remarked that:

"These cases involved a variety of factual situations, the common element being unjustified delay at some stage of the curial process. They turned upon a miscellany of Rules of Court, depending upon the nature of the case and the Division of the High Court of Judicature in which the case was brought. They afford little assistance to us." (394)

In Masel v. Transport Industries Insurance Co. Ltd [1995] VicRp 59; [1995] 2 V.R. 328 the Appeal Division of the Victorian Supreme Court referred, at 332 and 333 with approval to the remarks of Walsh J.A. in Witten and at 335 to Stollznow. The Court cited at 334 the observations of Brennan J. (as his Honour then was) in Norbis v. Norbis [1986] HCA 17; (1986) 161 C.L.R. 513 at 538, describing guidelines as ". . . not rules of universal application but . . . generally productive of just and equitable orders" and added:

". . . one would say that the discretion to dismiss an action for want of prosecution inherent in courts may be made the subject of guidelines which may be expected to arrive at a just result in the generality of cases, but that the guidelines are not rules of universal application and that they may and should be departed from if justice requires it".

In Neil J. Williams' work "Civil Procedure Victoria", the author cites Grovit v. Doctor and adds:

"Dismissal of a proceeding for want of prosecution involves an exercise of discretion. Whether the decided cases that have identified factors relevant to the proper exercise of the discretion have established principles or merely guidelines, a proceeding will only be dismissed for want of prosecution if the interests of justice so require. Thus, occasionally there may be cases in which, although application of the principles (guidelines) might indicate that the proceeding should be dismissed, justice does not on balance demand that outcome".

To my mind, in the 20 years since Birkett v. James was decided, experience has shown that difficulties arise from treating the rules there laid down as absolutely binding. Even if default has not been "intentional and contumelious", it may yet be so substantial and persistent that it is a potent consideration in favour of striking an action out. Where it cannot be established that the plaintiff's delay in pursuing the action (as opposed to the total period which has elapsed since the events in issue occurred) has led to a substantial risk of the kind mentioned in Birkett v. James, it must surely sometimes be the case that the delay is of such a character as, with other circumstances, to provide a good ground for bringing the action to an end. Here, the primary judge drew the inference, from the history of the matter, that the plaintiff's claim might be incapable of rational formulation; if that were so then that, again, might - although not covered by the Birkett v. James principles - be an important consideration in favour of granting a striking out application.

It appears, however, that in this State - the present case as an illustration - there has been a tendency to treat the Birkett v. James guidelines almost as if they were part of the Rules of the Court. I am inclined to think the time has come to accept what was said by Walsh J.A. in Witten:

". . . care must be taken to ensure that a discretionary power is not trammelled by set rules, by means of which one conclusion is to be automatically reached, regardless of other factors in the case which may point to the opposite conclusion".

The argument advanced for Mr Dorney was based upon the assumption that Birkett v. James guidelines necessarily provide a solution. Mr Dorney contended that it was not shown either that there was intentional and contumelious default or that there was inordinate and excusable delay giving rise to a substantial risk that a fair trial could not be had or a substantial risk of serious prejudice to the respondent; I am of opinion that there is substance in both these contentions.

The action in question was begun in November 1994, but the writ was not served until 1 day short of a year later. Under O. 9 r. 1 the writ was in force for 12 months and so the delay in service was permissible; it is, nevertheless, a circumstance to be taken into account against the appellant in exercising the discretion to strike out. In December 1995, a little over a year after the issue of the writ, the appellant's solicitor mentioned an extension of 14 days being needed to complete the statement of claim and that was followed by correspondence in which the respondent threatened an application to strike out. A statement of claim was delivered in December 1996, over 2 years after the action began. Under O. 24 r. 5(c) it should have been delivered with the writ or within 28 days after appearance. The respondent had entered an appearance on 8 November 1995, so the statement of claim delivered in December 1996 was about a year late. The respondent wrote a letter complaining about that statement of claim and ultimately filed a summons to strike it out; on that an order was made, by consent, that it be struck out and that a further statement of claim be delivered on or before 15 April 1997. A second statement of claim was delivered on 7 May 1997, 3 weeks later than the time ordered and the respondent, again, complained of its content. On 12 June 1997 this second statement of claim was struck out and leave was given to deliver a third statement of claim on or before 26 July 1997. That did not occur and on 21 August 1997 the order was made from which this appeal was brought, striking the action out.

It can be discerned from the material that the matters of which the appellant seeks to complain in his action took place from mid-1987 to mid-1991 and that the central point in the case is an allegation of defective advice from the respondent to the plaintiff late in 1988 - nearly 10 years ago. The record includes a draft statement of claim prepared in August 1997 and placed before the primary judge. Mr Dorney told us that this pleading was not thought to be in satisfactory form and that a substantially different pleading, not yet prepared, would be delivered if the appeal was successful. Nevertheless, the document is of some use as disclosing that the appellant alleges that the respondent was retained in August 1987 and that the appellant appears to place substantial reliance upon oral communication between the parties in that year and in 1988.

Mr Dorney's argument included four specific criticisms of the primary judge's reasons. Of those the two most substantial were, in my opinion, as follows. First, it was contended that the judge was wrong in holding that there was intentional and contumacious default, that being a reference to the first branch of the Birkett v. James guidelines. Fryberg J. explained, in effect, that he used the word "contumacious" as referring to "[p]erverse and obstinate resistance to authority". It appears to me, with respect, to be right that the characterisation of the appellant's conduct in that way involved drawing a doubtful inference from the facts. As Mr Dorney argued, what happened is at least as consistent with simple incompetence, or inability to handle what was seen as a very complex case, as with any defiance of the court's authority. One knows how putting off completion of a difficult and unattractive task from day to day, or week to week, can result in its not being done until a length of time has passed the total of which surprises the procrastinator; this may occur without the slightest intention to resist any authority, perversely or otherwise.

Secondly, Fryberg J. concluded, as an alternative to the finding of intentional and contumacious regard of the court's order, that the claim might be incapable of rational formulation. Again, I am of the respectful opinion that such an inference is not justified, on the material. That a particular counsel may have great difficulty in fitting facts into a proper legal framework does not necessarily warrant a conclusion that no framework will comfortably accommodate them. The onus on this and other issues lay on the party applying for the striking-out order. The explanation suggested by Mr Dorney, to the effect that what went wrong was that the solicitors unwisely left the task of producing a proper pleading in the hands of a counsel for whom, despite no doubt earnest efforts over a long period, the task proved too formidable, is reasonable and not disproved by any of the evidence. I would add that the appellant made an affidavit in which he explained what he saw as the essence of his complaint against the respondent. He was never cross-examined on this; the suggestion that there was any intention to defy or treat lightly the authority of this Court comes merely from the bar table, not from anything put to the appellant, or to his solicitor who also made an affidavit.

To my mind the factors would suggest that the order made by the primary judge was a proper one are principally the following:

1. The case is, or at least has to date been pleaded as, one of considerable complexity, the resolution of which will depend in substantial part upon deciding what people said to each other 10 years ago.

2. Not having begun the action until long after the last relevant event occurred, the appellant, by his solicitors, showed no inclination to move it quickly towards trial; at the outset, there was a delay of nearly a year in serving the writ.

3. When the matter came before the primary judge, 1 year and 8 months had elapsed since the time when, under the rules, a statement of claim should have been delivered. (Even now, there is no proper statement of claim ready for delivery.)

4. There were a number of failures to comply with intimations or promises as to imminent delivery of a statement of claim, and a failure to comply with an order of Byrne J. of 10 April 1997 for delivery of a statement of claim.

5. When, following the striking out of the second statement of claim, Byrne J. on 12 June 1997 afforded the appellant a further opportunity to deliver a statement of claim, that was not done.

In my opinion, although I see difficulty in fitting the case into what was described in Wright v. Morris [1997] F.S.R. 218 at 227, as the "strait-jacket of the guidelines laid down in Birkett v. James,"; the judge's order should stand. This Court should hold that the circumstances are such as to necessitate putting an end to the suit, under the inherent jurisdiction. Despite much encouragement on the part of the respondent, the appellant has not yet, in 1998, properly set out his allegations against the respondent, in an action begun in 1994, in relation to events which seem principally to have taken place in 1987 and 1988. It is desirable that litigants and their lawyers be given to understand that the Court will not necessarily countenance such a long delay in achieving a formulation of the allegations on which the action is based. The delay should in my view be treated as inexcusable.

It is necessary to refer to two other points. Mr Dorney argued that we should decide the matter on the basis that if the action was struck out, another could be instituted, within time; he said that there was a case of concealed fraud which would enable that to be done. The relevance of this contention is to one of the Birkett v. James guidelines, to the effect that an action should not be dismissed for want of prosecution before the limitation period has expired, other than in exceptional cases ([1978] A.C. at 321). There is no way of telling whether there has been concealed, or any, fraud, so that principle cannot apply. Secondly, Mr Keane Q.C. S.G. argued on behalf of the respondent that the Court has power to strike out under O. 31 r. 1 and should not be inhibited, in considering that rule's application, by the guidelines, in Birkett v. James; he said that those guidelines apply only to applications to strike out in reliance on the inherent jurisdiction. Mr Keane pointed out in support of his submission that in Birkett v. James Lord Diplock referred to a practice which had developed under which "judges began to have recourse to the inherent jurisdiction of the court to dismiss an action for want of prosecution even where no previous peremptory order had been made . . ." (318). The difficulty about the submission is that the reference to a "peremptory" order was, it appears, intended to be to an order that "the action should be dismissed unless the plaintiff took within a specified additional time" the step on which he had defaulted (318). Another problem in giving effect to the submission in the present case is that the only order on which Mr Keane could rely was that made by Byrne J. on 10 April 1997, in response to which a statement of claim was delivered. Although the pleading was not in satisfactory form and was delivered late, the respondent did not then apply to strike the action out, relying on these defects, and Byrne J. gave leave to deliver a further statement of claim. In those circumstances, it would not be a proper course to strike the action out under O. 31 r. 1, the order which was not complied with having been supplanted by another.

I would, nevertheless, dismiss the appeal with costs, for the reasons I have given.

This is an appeal against an order dismissing for want of prosecution an action in the Supreme Court. The nature of the action and the circumstances occasioning its dismissal are set out in detail in the reasons of Pincus J.A. which I have had the advantage of reading.

In Ellis v. Leeder [1951] HCA 44; (1951) 82 C.L.R. 645, 653, Dixon Williams and Kitto JJ. expressed their agreement with the statement of Jordan C.J. in In Re Will of Gilbert [1946] NSWStRp 24; (1946) 46 S.R.(N.S.W.) 318, 323, that there is a material difference between the exercise of a discretion on a point of practice or procedure, and the exercise of a discretion which determines substantive rights. In Gilbert, Sir Frederick Jordan went on to say that in the former class of case:

"... if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal".

See also Queensland Trustees Limited v. Fawckner [1964] Qd.R. 153, 166, where this passage from the judgment of Jordan C.J. was referred to with approval.

It is not clear in this instance, any more than perhaps it was in that, that the discretion exercised to terminate the plaintiff's action here was one which determined "substantive rights" in the sense in which that term was used by Jordan C.J. Striking out is procedural in character, but it has potentially substantive consequences where, as in this case, the expiry of a limitation period may operate to prevent a further action from being instituted in respect of the same cause of action: cf. William Crosby & Co. Pty. Ltd. v. Commonwealth [1963] HCA 6; (1963) 109 C.L.R. 490, 493. To that extent, the decision now under review may be seen to have produced the result that the plaintiff has been deprived of substantive rights arising from what is alleged to have been a breach of duty on the part of the defendant.

Somewhat surprisingly, it was the plaintiff on this appeal who was anxious to insist that the limitation period had not expired. The explanation lies in the fact that in Birkett v James [1978] A.C. 297, it was accepted that non-expiry of a period of limitation was a matter tending against dismissal of an action for want of prosecution. The reason given was that in those circumstances it was open to the plaintiff to institute a further action by the simple expedient of issuing another writ. In Madden v. Kirkegard Ellwood & Partners [1983] 1 Qd.R. 649, 655, the fact that the limitation period had run was regarded as a cogent reason for not striking out a second action instituted within the limitation period but during the pendency of an earlier action, which was itself liable to be defeated under O. 90, r. 9 of the Rules of the Supreme Court.

The result in that case is consistent with the attitude disclosed in the speeches in Birkett v. James, but it perhaps does not altogether accord with the purpose and function of the Queensland rule. Order 90, r. 9 serves to prevent a step from being taken without an order of the Court or a Judge when three years have elapsed from the time when the last proceeding was taken in an action. It is a rule peculiar to Queensland, although, as can be seen from William Crosby & Co. Pty. Ltd. v. Commonwealth, it has or had an analogue in the High Court Rules. It operates without the need for any affirmative step to be taken to have the action dismissed. Having operated in that way, the action becomes subject to what is, in effect, an automatic stay unless on application under the rule leave is granted to proceed with the action. If leave is not sought and granted, the action may be struck out in reliance on other provisions in the Rules, such as O. 39, r. 15, or O. 39, r. 30A(8), or, as in this case, O. 31, r. 1; or under the Court's inherent power to dismiss for want of prosecution. Even without applying to have it dismissed, the action is simply left to expire of its own inanition.

What has been said shows that the structure of the relevant procedural regime in Queensland differs, in some respects widely, from that in other Australian States and in England. Although there are points of identity, the provisions and effect of O. 90, r. 9 are sufficiently specific and special to make the underlying basis of the reasoning in Birkett v. James not altogether relevant to proceedings in Queensland. Even if it were otherwise, I would not be prepared to regard what was said by their Lordships in that case as laying down particular rules controlling the decision of whether to dismiss an action for want of prosecution. The power so to dismiss is one that is confided to a judicial discretion, and, for that if no other reason, is incapable of being exhaustively defined or delimited in a detailed and binding fashion. Birkett v. James suggests only some of the factors relevant in exercising the discretion, which include matters such as the duration of the time lapse involved; the cogency of any explanation for delay; the probable impact of procrastination on fading recollection; the death or disappearance of critical witnesses or records; costs already or likely in future to be expended or thrown away; the apparent prospects of success or otherwise at a trial of the action; and the progressively growing problem of effectively hearing and determining questions of fact arising out of events that have taken place many years before. The list is not, and is not intended to be, exhaustive; and it takes no account of another factor that is often likely to be material, which is that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them. The psychological as well as the commercial effects of such a state of affairs ought not to be underestimated.

Judged by considerations such as these, of which a number are specifically adverted to and identified by Pincus J.A. in his reasons, it is in my opinion not possible to say that in dismissing this action the primary judge's discretion miscarried. Even if the ultimate consequences of that decision may be to affect substantive rights, the discretion is not shown to have been wrongly exercised.

The point of the discretion invested in the Court to strike out an action or not is the application of fairness and justice to both parties, and that should not be limited by strict rules that might have a contrary result.

The position of a party innocent of any delay should not be viewed in the same light as that of a party who is responsible for persistent delay. Though the striking out of an action has serious consequences, the prejudice to a defendant of very long delay should not be underestimated.

Where a plaintiff is guilty of unexplained delay in commencing an action and then withholds service till the last moment, the Court will not be tender as to his further unconscionable delay. In those circumstances, subsequent disobedience to more than one court order to proceed with the matter at once cannot be accepted, much less excused, on the basis of any urge to procrastinate because of the difficulty of the task.

The gross delay that had already attended the matter and the default in following the Court's instruction allowed for no further self-indulgence of that kind. The imperative nature of that situation was so strong that the failure to act, if not deliberate disobedience, was highly reckless disregard of the Court's orders. The excuse of counsel's incompetence (not Mr Dorney QC or Mr Erskine, of course), is not a convincing answer here. The misbehaviour went beyond that. If the task of drafting the pleading was beyond the competence of the original counsel, the circumstances required that if he did not admit defeat and withdraw, the task should have long since been taken from him.

With the exception of the foregoing, I agree with the reasons given by the learned presiding judge.