Page v The Central Queensland University [2006] QCA 478

[1] 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.

[2] 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 dispute. The appellant then alleges that degree was regarded by the University of New England for purposes of scholarships and entry into PhD programs as a superior qualification to a Bachelor degree with second class honours, division A, and a superior qualification to a Master's degree by course work. One of the particulars of negligence relied on by the appellant is the allegation that the respondent failed to make proper enquiries of the University of New England as to the status of the appellant's relevant degree.

[3] In its defence the respondent does not admit that the University of New England regarded the appellant's Master's degree in the way alleged. To the contrary it alleges that the appellant's relevant degree was regarded by the University of New England as an insufficient qualification for admission to its own PhD program. It seems clear from the material before the Court that in about 1991 the respondent had contact with the University of New England with respect to the appellants' scholarship application.

[4] It would be necessary at any trial for the respondent to lead evidence of enquiries made of personnel at the University of New England in 1991 and the information so obtained. Even if after a lapse of 15 years witnesses could recall the nature of those enquiries and the responses, it would be asking too much of any witness to indicate now what weight was given to such matters in evaluating the appellant's application.

[5] That is only one of the areas where prejudice has been demonstrated, but it suffices to establish that the judge at first instance was justified in concluding that there was such prejudice to the respondent as to warrant dismissing the proceeding for want of prosecution.

[6] I agree the appeal should be dismissed with costs.

[7] KEANE JA: On 31 January 1997, the appellant commenced an action to recover damages from the respondent for loss allegedly suffered by him by reason of the respondent's failure in 1991 to admit him to a course of study for the award of a PhD and to award him a scholarship to enable him to study for that degree. The appellant alleged that the respondent was negligent, or breached a contractual obligation to exercise skill, care and diligence in its assessment of the appellant's application for the scholarship and for admission to the course of study for the PhD. The appellant alleged that the respondent failed "to consider, or give sufficient or proper weight to ... [his] qualifications; [his] membership of learned societies; [and his] research publications".

[8] On 2 March 2006, the respondent applied for the dismissal of the appellant's action for want of prosecution. On 12 May 2006, the learned primary judge acceded to the respondent's application.[1]

[9] His Honour's overall conclusion was that, although the appellant may have an arguable case, it was not so compelling as to warrant its continuation in circumstances where the appellant's inordinate delay had prejudiced the prospects of a fair trial of his claim. In reaching that conclusion, his Honour made the following relevant observations:

(a) "One cannot have any confidence that the plaintiff's case will succeed, although he may have an arguable case."

(b) "The delays are quite extravagant. It is 15 years since the events for which the cause of action arises occurred". The appellant's writ was not served until 12 January 1998. The action proceeded through the interlocutory stages to inspection of documents, which was completed on 15 March 2002. On 3 December 2002, there was a settlement conference and further inspection of documents. "No steps have been taken in the action since then."

(c) The appellant's explanation for his delay was that he has been "pursuing his studies which have preoccupied him". The appellant's prosecution of the action "has been characterised not only by delay but by serious distractions" by way of complaints to agencies of the executive government seeking to obtain redress for the wrong allegedly done him by the respondent. His Honour said: "There is, I think, an element of vexation in the conduct of the action, in bringing this unusual case and in not prosecuting it quickly, even making allowance for the [appellant's] lack of resources."

(d) "The recent discovery that the [appellant] has completed a course of study which gave him a PhD gives rise to a number of new issues in relation to quantum which will have to be the subject of disclosure and request for particulars."

(e) "... I think it undoubted that there will have been a degree of evaluation and assessment of the [appellant's] application" by the respondent which means that it is now "too much to expect that anyone who took part in the initial assessment or the appeal process could now remember what it was about the [appellant's] application, as compared to others which were then before [the respondent], as to why it was not successful. The events are now 15 years old. They were seven years old when the statement of claim was served upon the [respondent] and it knew that it might have to find evidence to resist the claim. There does not appear to have been any attempt then or since to find that evidence but the delay, I think, in commencing the proceedings and serving them would itself have been enough to deprive the [respondent] of any realistic chance of recalling what it was that led to the [appellant's] rejection."

(f) The evaluation carried out by the respondent which was allegedly wrongful was not only an evaluation of the appellant's academic results. It was also a process of scrutiny, evaluation or assessment of the appellant's preferred topic which may have led to the conclusion that it "was not compatible with the university's program".

[10] His Honour then summarised the reasons for his decision in the following terms:

"because the ... [appellant's] claim, is doubtful, ... has not been prosecuted promptly, has been marked by great delays and distractions and is still not ready for trial, and there is, I think, clear prejudice to the [respondent], I think the appropriate order is that the action be struck out for want of prosecution."

[11] I turn now to discuss the arguments advanced by the appellant to challenge his Honour's conclusion.

[12] The appellant contends that his Honour's decision was based on a factual error, in that the last step in the action occurred on 18 March 2005 when the respondent answered a request by the appellant for particulars of its defence. The appellant focuses upon s 85(2) of the Supreme Court of Queensland Act 1991, which provides that if "2 years have passed since the last step was taken in a proceeding, the court may dismiss the proceeding", and contends that the jurisdiction conferred by s 85(2) of the Supreme Court of Queensland Act had not been enlivened because the last step in the proceeding was taken on 18 March 2005.

[13] This point was not argued at first instance. Indeed, it was common ground below that the occasion for the exercise of power conferred by s 85(2) of the Supreme Court of Queensland Act had arisen. While it is true to say, as the appellant does, that jurisdiction may not be conferred upon a court by consent, this was not a case where the court's jurisdiction depended upon the consent of the parties. The appellant's point relates, in truth, to the power of the court to grant relief of a particular kind. Section 85(2) does not prescribe the conditions upon which a court may entertain an application for dismissal of proceedings pending before it. The distinction between jurisdiction and power in this context is frequently blurred or overlooked, but it is an important distinction.[2]

[14] It was for the parties to put before the court their respective contentions as to the factual basis on which the court's power was to be exercised. By reason of the appellant's concession that the last step in the action had occurred more than two years before, the learned primary judge was entitled to proceed on that factual basis. The appellant is bound by the conduct of his case at first instance.[3]

[15] It is only fair that the appellant should be so bound. If the present point had been raised, other sources of power and reasons for their exercise could have been invoked by the respondent. Reference could have been made, for example, to the court's inherent power to dismiss an action for want of prosecution. That power remains available to the court, notwithstanding the express conferral of statutory power to dismiss an action for want of prosecution.[4] In exercising that power, the court would be entitled to refer to the correspondence of 18 March 2005 and to consider whether, even in the light of that correspondence, a conclusion that the appellant had culpably failed to prosecute the action was still warranted. The respondent might have made out a case for dismissing the action on this broader basis. Because of the appellant's conduct of its case before the learned primary judge, the respondent was denied this opportunity. Because of the appellant's conduct of his case at first instance, it cannot be said that the learned primary judge erred in proceeding on an erroneous premise as to the existence of power to dismiss the appellant's action.

[16] For these reasons, it is not necessary to decide whether the letter in question did constitute a step in the proceedings as something apt to carry the matter forward towards a trial.[5]

[17] The appellant contends that the learned primary judge, in making the observations referred to in paragraph [9](e) and (f) of these reasons, wrongly prejudged an issue of fact in dispute in the proceedings, namely the compatibility of the appellant's thesis with the respondent's research agenda. The appellant contends that his Honour thereby denied the appellant natural justice.

[18] This complaint is misconceived. His Honour's comments in relation to a possible reason for the respondent's rejection of the application, other than a negligently mistaken assessment of the appellant's qualifications, were not intended to suggest that he had come to a concluded view that the appellant's claim was bound to fail. His Honour was clearly not of that view. The point which his Honour was making was that there are likely to be difficulties of recollection involved for those witnesses who might be expected to give evidence of the reasons for the respondent's failure to accept the appellant's application, and that these difficulties must inevitably have been exacerbated by delays in the prosecution of the action.

[19] The appellant contends that there was no evidentiary basis for the learned primary judge's view that there was an "element of vexation in the conduct of the action". It is also argued that his Honour erred in characterising the appellant's attempts to obtain redress for his grievance through other agencies as "distractions" from the litigation.

[20] The learned primary judge's comments were made in the context of his Honour's discussion of the sufficiency of the explanation given by the appellant for his delay in prosecuting the action. That explanation involved reference to a lack of resources and time to devote to the prosecution of the litigation. The observations by the learned primary judge were made to contrast the manner in which the appellant initiated and prosecuted the action with the energy and effort he was plainly able to devote to the pursuit of extra-curial remedies. His Honour was making the point that the appellant's explanation for his delay was unsatisfactory when seen in the light of the extent to which the appellant devoted energy and resources to the pursuit of alternative forms of redress.

[21] The appellant chose to prosecute the proceedings at a pace of his own choosing, and did not devote sufficient energy to the prosecution of the action in compliance with r 5 of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR"). It was, therefore, open to the primary judge to describe the appellant's approach, which involved the visiting of the burdens and inconvenience of delayed litigation on the respondent, as involving an element of vexation.

[22] The appellant also complains that this description of the conduct of the litigation involved a finding adverse to the appellant which could properly be made in proceedings under the Vexatious Proceedings Act 2005 (Qld). But his Honour was not concerned to find a basis for the imposition of the sanctions which may be imposed on vexatious litigants; nor was his Honour concerned to determine whether or not the appellant was a vexatious litigant. His Honour was rightly concerned with the sufficiency of the appellant's explanation for his delays in prosecuting the litigation, and was entitled to express his dissatisfaction with that explanation in trenchant terms. This aspect of the appellant's complaint is quite without substance.

[23] The appellant contends that his Honour erred in finding that the appellant's delay had enured to the prejudice of the respondent.

[24] The appellant's case puts in issue the process of scrutiny and evaluation of his application by officers of the respondent. This process occurred 15 years ago. The appellant's case will inevitably involve, to some considerable extent, oral evidence of discussions involving the respondent's officers and other persons, including the appellant. The learned primary judge was entitled to conclude, by reason of these circumstances alone, that the prospects of a fair trial of the appellant's case lay in the realm of pious hope rather than reasonable expectation. While it is true to say that the court will be reluctant to deny a litigant with an arguable case the opportunity for a fair trial of his or her claim, it must be emphasised that the opportunity in question is the opportunity for a fair trial. The court is not in the business of preserving the opportunity to conduct solemn farces in which parties and witnesses are invited to attempt to reconstruct recollections which have long since disappeared. Such a trial would not be fair for either party.

[25] At the hearing of the appeal, the appellant sought to rely on evidence which had not been put before the learned primary judge. This evidence consisted of documents of the respondent exhibited to an affidavit of Mark John Brennan. The respondent opposed the reception of this affidavit by this Court. The Court received the evidence on a provisional basis. Senior Counsel for the respondent, in his oral submissions, referred to parts of the evidence to make the point that the respondent's records of crucial events are not comprehensive and that crucial issues in the case will, indeed, depend upon oral evidence of discussions and cerebral processes that occurred many years ago. In my view, the respondent's objection should be overruled, and the affidavit of Mr Brennan should be admitted.

[26] The decision of the learned primary judge involved the exercise of a discretionary judgment. It has not been shown that his Honour's discretion miscarried.

[28] The appellant should pay the respondent's costs of the appeal.

[29] WHITE J: I agree with the reasons of Keane JA and the orders which his Honour proposes.

[1] Page v The Central Queensland University, No BS 1258 of 1999, 12 May 2006.

[2] Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 227 ALR 425 at [10] - [11].

[3] Smits v Roach [2006] HCA 36; (2006) 228 ALR 262 at 275 - 276 [46].

[4] Quinlan v Rothwell [2001] QCA 176; [2002] 1 Qd R 647 at 685 [30].

[5] See Raabe v Brisbane North Regional Health Authority (No 1) [2000] QSC 257 at [9].