Ferrari Estate Holdings Pty Ltd v Cooktown Earthmoving & Quarrying Pty Ltd & Anor [2016] QCA 266

SUPREME COURT OF QUEENSLAND CITATION: Ferrari Estate Holdings Pty Ltd v Cooktown Earthmoving & Quarrying Pty Ltd & Anor [2016] QCA 266 PARTIES: FERRARI ESTATE HOLDINGS PTY LTD ACN 099 918 760 (applicant/appellant) v COOKTOWN EARTHMOVING & QUARRYING PTY LTD ACN 010 827 540 (first respondent) MATTHEW TROY CAREY TRADING AS MTC BUILDER BN 17682757 (second respondent) FILE NO/S: Appeal No 9194 of 2015 SC No 139 of 2010 DIVISION: Court of Appeal PROCEEDING: Application for Extension of Time/General Civil Appeal ORIGINATING COURT: Supreme Court at Cairns – [2015] QSC 220 DELIVERED ON: 20 October 2016 DELIVERED AT: Brisbane HEARING DATE: 22 June 2016 JUDGES: Morrison and Philip McMurdo JJA and Peter Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDERS: 1. The application for an extension of time within which to appeal is granted. 2. The appeal is dismissed. 3. The appellant is to pay the respondents’ costs of the appeal, to be assessed on the standard basis. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – UNIFORM CIVIL PROCEDURE RULES – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – where the appellant owned a building that was flooded and damaged in 2004 – where the appellant claims that the resultant damage was caused by development and construction work done on neighbouring property – where the appellant commenced proceedings in 2010 against the -- 1 of 18 -- 2 neighbouring land owner, the building company as the first respondent, and the builder as the second respondent for damages for negligence, alternatively nuisance and trespass – where more than five years later the proceedings had still not come to trial – where the learned primary judge dismissed the case against the owner of the neighbouring land for want of prosecution on 13 May 2015 – where the first and second respondents applied under r 280 of the Uniform Civil Procedure Rules 1999 (Qld) for the proceedings against them to be dismissed for want of prosecution – where the learned primary judge dismissed the case against the respondents on 31 July 2015 – where the appellant seeks to appeal from that order – whether the learned judge erred in dismissing the proceedings against the respondents for want of prosecution APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN GRANTED – where the notice of appeal was not filed in time – where the appellant has filed an application for extension of time in which to appeal – where the only opposition to the application for an extension of time was on the basis that the proposed appeal lacked merit – where the application for extension of time is granted Uniform Civil Procedure Rules 1999 (Qld), r 5, r 280, r 389(2), r 428, r 429 Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2013] 2 Qd R 202; [2012] QCA 272, considered Cooper v Hopgood & Ganim [1999] 2 Qd R 113; [1998] QCA 114, cited Ferrari Estate Holdings Pty Ltd v Sovereign Resort Developments Pty Ltd [2015] QSC 126, cited Ferrari Estate Holdings Pty Ltd v Sovereign Resort Developments Pty Ltd (No 2) [2015] QSC 220, affirmed Hookway Aerospace Pty Ltd v Commonwealth of Australia [2000] TASSC 112, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Mbuzi v Hall [2010] QSC 359, cited Quinlan v Rothwell [2002] 1 Qd R 647; [2001] QCA 176, cited Stollznow v Calvert [1980] 2 NSWLR 749, cited Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178, applied COUNSEL: J A Griffin QC, with I Klevansky, for the applicant/appellant D M Turner for the first respondent R S Ashton QC for the second respondent SOLICITORS: Simmons & McCartney Lawyers & Attorneys for the applicant/appellant Gadens Lawyers for the first respondent Moray & Agnew for the second respondent -- 2 of 18 -- 3 [1] MORRISON JA: In March 2004, water flooded and damaged a building in Cooktown, owned by Ferrari Estate Holdings Pty Ltd. Mrs Ferrari (the sole director of Ferrari Estate) claims the resultant damage was caused by development and construction work done on the neighbouring land of the Sovereign Hotel. That work was carried out by Cooktown Earthmoving & Quarrying Pty Ltd and Mr Carey (a builder). [2] On 19 March 2010, about six years later, Mrs Ferrari commenced proceedings against Cooktown Earthmoving, Mr Carey, and the owner of the Sovereign Hotel. The claim was for damages for negligence, alternatively nuisance, and trespass.1 [3] More than five years later the proceedings had still not come to trial. On 13 May 2015 the case against the owner of the Sovereign Hotel was dismissed for want of prosecution.2 [4] Cooktown Earthmoving and Mr Carey applied under r 280 of the Uniform Civil Procedure Rules 1999 (Qld) for the same relief. On 31 July 2015 the learned primary judge dismissed the claim against them for want of prosecution.3 [5] Mrs Ferrari seeks to appeal from that order. However, a notice of appeal was not filed within the specified time and therefore she has filed an application to extend the time to do so. Before this Court the only opposition to the application for an extension of time was on the basis that the proposed appeal lacked merit. There is, therefore, no need to consider that application separately. [6] The issue on the appeal is whether the learned primary judge’s exercise of discretion miscarried. As the grounds of the proposed appeal are drawn, that requires consideration of whether his Honour erred in: (a) grounds (a)-(e): on the question of whether Cooktown Earthmoving and Mr Carey had suffered relevant prejudice by: (i) finding that there was prejudice; (ii) giving excessive weight to the prejudice alleged by them; (iii) finding that the delay would have inevitably resulted in prejudice; and (iv) not considering whether it was still possible to have a fair trial; (b) ground (f): giving undue weight to an expert report of Mr Fox; and (c) grounds (g)-(h): not giving sufficient weight to the difficulties that Mrs Ferrari had experienced in conducting the litigation, specifically her state of health and its impact on the conduct of the litigation; also that she was self-represented for much of the time. The chronology of the litigation [7] The development and construction works on Sovereign Hotel land commenced about 9 February 2004. Mrs Ferrari claims that the works caused damage to her property on about 19 March 2004. Mrs Ferrari alleges that is when the cause of action accrued. [8] The claim and statement of claim was filed on 19 March 2010, about six years after Mrs Ferrari became aware of the damage. Defences under the statute of limitation were raised. 1 On the appeal this Court was invited to treat Ferrari Estate Holdings Pty Ltd and Mrs Ferrari as one and the same: Appellant’s outline paragraph 26. Therefore, in these reasons I shall refer to “Mrs Ferrari” as encompassing both entities. 2 Ferrari Estate Holdings Pty Ltd v Sovereign Resort Developments Pty Ltd [2015] QSC 126. (Ferrari Estate Holdings No 1) An appeal against that decision was filed, but dismissed by consent on 29 October 2015: second respondent’s outline paragraph 7. 3 Ferrari Estate Holdings Pty Ltd v Sovereign Resort Developments Pty Ltd (No 2) [2015] QSC 220. (Ferrari Estate Holdings No 2). -- 3 of 18 -- 4 [9] The damages claimed were: $982,241.30 for negligence or alternatively nuisance, and $114,990 for trespass. [10] Defences were filed on 28 April 2010 (Cooktown Earthmoving) and 6 May 2010 (Mr Carey). The pleadings therefore closed on 12 May and 20 May 2010, respectively: r 169 UCPR. [11] A request for further and better particulars of the claim was made by Cooktown Earthmoving on 17 May 2010, and the reply to that request was given on 22 June 2010. A similar request was made by Mr Carey on 1 June 2010. [12] To that point the parties had been generally adhering to the time limits prescribed under the UCPR. [13] On 23 November 2010 Mr Carey filed an amended defence. He filed a list of documents on 1 April 2011. [14] Mrs Ferrari’s next step in the proceedings was to serve a list of documents, as against Mr Carey on 2 March 2012, and as against Cooktown Earthmoving on 5 March 2012. Then copies of documents from those lists were provided on 30 May 2012. [15] No further step in the proceedings was taken until the two applications under r 280 UCPR in May 2015. Therefore on any view Mrs Ferrari had not taken any step for about three years. The learned primary judge noted the contention that the work done by Mrs Ferrari on the documents was quite perfunctory and that in reality Mrs Ferrari had not meaningfully progressed the claims for over five years.4 [16] In November 2010 Cooktown Earthmoving and Mr Carey engaged Mr Fox, a civil and construction engineer, to provide an expert report. The general thrust of this report was that the development and construction works did not increase the surface or subsurface water flow between Sovereign Hotel’s land and Mrs Ferrari’s land, and did not cause or contribute to the damage claimed. This report was served on Mrs Ferrari on 6 January 2011. [17] Pursuant to UCPR r 429 Mrs Ferrari should have obtained any expert report on which she wished to rely within 90 days of 20 May 2010, the close of pleadings against Mr Carey. That is, by 20 August 2010. Applicable legal principles [18] Rule 389(2) of the UCPR relevantly provides: “(2) If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.” [19] Rule 280 provides: “(1) If— (a) the plaintiff or applicant is required to take a step required by these rules or comply with an order of the court within a stated time; and 4 Ferrari Estate Holdings No 2, at [9]. -- 4 of 18 -- 5 (b) the plaintiff or applicant does not do what is required within the time stated for doing the act; a defendant or respondent in the proceeding may apply to the court for an order dismissing the proceeding for want of prosecution. (2) The court may dismiss the proceeding or make another order it considers appropriate.” [20] In Tyler v Custom Credit Corp Ltd & Ors,5 this Court observed that the factors which the Court will consider in deciding whether the interests of justice require a case to be dismissed because of delay in advancing it 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 the striking out 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. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers; (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.” [21] The decision appealed from was a discretionary one. Therefore, to succeed the appeal has to demonstrate that the learned primary judge has erred in the sense described in House v The King,6 namely: acting upon a wrong principle; allowing extraneous or irrelevant matters to guide the discretion; mistaking the facts; or failing to take account of a material consideration. 5 [2000] QCA 178, at [2], per Atkinson J, with whom McMurdo P and McPherson JA agreed. 6 (1936) 55 CLR 499, 505. -- 5 of 18 -- 6 [22] However, it is not enough that this Court would have exercised the discretion differently. The discretion must involve an error of law which has led to “an unreasonable or plainly unjust” result, or has involved a “substantial wrong”, before the discretion will be held to have been improperly exercised. Nature of the work [23] The following description of the work has been taken from Ferrari Holdings No 1:7 “The plaintiff alleges that the works carried out by the second and third defendants in 2004 were done negligently and also involved some transgression beyond the property boundary onto its land. The natural conformation and contours of both the first defendant’s land and the plaintiff’s land were allegedly altered by the works, resulting in the diversion of surface and subsurface water onto the plaintiff’s land from the first defendant’s land. It is alleged that the diverted water pooled, causing flooding, and that this flooding caused structural and superficial damage to the Ferrari Estates Building in 2004, requiring significant repairs.” [24] The pleaded work was summarised in a report by Mr Fox, as follows: (a) demolition of existing landscaping elements including a pathway and rock retaining wall; (b) earthworks to construct a level platform; (c) construction of a new rock retaining wall; (d) construction of the laundry facility, with concrete slab on ground, reinforced concrete block walls and steel sheet roof; and (e) new landscaping works. Discussion [25] Before this Court the contention was that the learned primary judge failed to give sufficient weight to the difficulties that Mrs Ferrari had experienced in conducting the litigation, and in particular her state of health, its impact on the conduct of the litigation, and the fact that she was self-represented for much of the time. In that respect several points were advanced:8 (a) Mrs Ferrari was overwhelmed by the task of collating the necessary expert reports; reliance was placed on Cooper v Hopgood & Ganim;9 (b) she did not disobey any order or direction of the court; whilst it was accepted that UCPR r 5 had been breached that did not necessarily lead to r 280 relief; (c) no steps were taken by Cooktown Earthmoving or Mr Carey, to require the production of the reports from Mrs Ferrari; they could have applied for directions or made an appropriate application; and 7 Ferrari Estate Holdings No 1, at [4]. 8 Appellant’s outline, paragraphs 26-30. 9 [1999] 2 Qd R 113, at 120-121. This was as to whether “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.” -- 6 of 18 -- 7 (d) the acknowledged problems with Mrs Ferrari’s conduct of the litigation should nonetheless have resulted in a guillotine order rather than dismissal. [26] Those points were developed further in oral submissions. Delay [27] On any view there has been protracted delay in the proceedings. A number of explanations were proffered, including problems with lawyers, ill health and the fact that Mrs Ferrari represented herself for a significant period of time. Mrs Ferrari’s outline accepts, with a degree of under-statement, that the explanations “did not impress the primary judge”.10 His Honour’s conclusion was expressed in this way:11 “[11] The considerations relevant to an application of this kind were canvassed in Tyler v Custom Credit Corp Ltd & Ors. They include reference to how long ago the relevant events occurred, the extent of the delay in commencing the litigation, how long ago it was commenced, whether the litigation has been characterised by periods of delay, to whom the delay is attributable and how far the litigation has progressed. All of those considerations are adverse to [Ferrari Estate’s] position. [12] The events occurred over 11 years ago. It took [Ferrari Estate] at least six years to even commence the action notwithstanding longstanding knowledge of the fact of damage and the defendants’ alleged liability for causing it. In the five years since filing the claim it has done little to advance the action. It has not progressed it past disclosure and has not taken a step in over three years. None of that failure to comply with the litigant’s implied undertaking to proceed expeditiously is the fault of the defendants.” [28] The learned primary judge commenced his examination of the reasons for the delay by saying: “Such explanations as are proffered for the delay fall far short of explaining delay and inaction of such magnitude as has occurred here.”12 [29] In my view, it cannot be concluded that the learned primary judge erred in finding that there was excessive delay in this case. In reality the submissions by senior counsel for Mrs Ferrari accepted that to be so, but sought to explain it away by reference to the other matters raised, and particularly the issues of prejudice, ability to have a fair trial, and Mrs Ferrari’s personal predicaments that were said to have overwhelmed her and prevented the timely progression of the proceedings. Expert reports [30] There was evidence before the learned primary judge as to the exchange of correspondence concerning the production of expert reports. That included Mrs Ferrari’s statements, to the solicitors for Cooktown Earthmoving and Mr Carey, about her efforts to obtain expert reports. That evidence can be summarised as follows:13 10 Appellant’s outline paragraph 5, referring to Ferrari Estate Holdings No 2 at [13]-[23]. 11 Ferrari Estate Holdings No 2 at [11]-[12]. Internal footnotes omitted. 12 Ferrari Estate Holdings No 2 at [13]. 13 Ferrari Estate Holdings No 2 at [31]-[32]; AB 122-123, 131, 132. -- 7 of 18 -- 8 (a) 29 December 2010: Mrs Ferrari said “I am getting a report prepared by a Registered builder … [and] A report from a Professor/Associate at the University of Melbourne is currently being prepared on the cement used in the building… I haven’t the final report yet”; (b) 16 March 2011: Mrs Ferrari said “I was due to have the report from the Builder this week. Cardwell was flooded again last week. I have been advised that I will get the report next week 25 March then it has to go to the Engineer … Could I please have an extension I would prefer two months by then I hope all reports will be in”; (c) 17 July 2012, 27 August 2012 and 15 October 2012: letters were sent by Mr Carey’s solicitor to Mrs Ferrari, seeking delivery of documents relating to the damages claim and the expert reports that had been foreshadowed in 2010 and 2011;14 (d) 19 November 2012: Mrs Ferrari advised she was in the process of obtaining further expert reports from explosive and hydraulic experts and was trying to get everything together before Christmas; (e) 18 February 2013: Mrs Ferrari advised that she envisaged obtaining three further reports from a hydrologist, an explosives expert and a heritage conservation expert; and (f) 19 December 2014 (to Sovereign Resort Developments’ solicitor): almost four years after the first statement on 29 December 2010, Mrs Ferrari stated “Now we are proceeding to Court we need updated reports from the experts (Dept. of Heritage will accept nothing less and to their specifications of their experts) on how the building will be repaired; we had all the experts in the various field appointment all of us waiting on the reports from our Barrister whether to have the cases heard separately or all together;… the Solicitor never passed the money onto the Barrister. … I repeat we have to get updated reports to proceed. … If the Solicitor had of [sic] paid the Barrister the reports provided would have involved the Insurance Company where the claim should have gone in the first instance; … Our Solicitor and Barrister will attend to all the matters in the New Year when we start again to get the Court Action going.” [31] Notwithstanding everything said, no expert reports were forthcoming. [32] An affidavit by Mrs Ferrari attached a number of documents which, she said, related to the building and the repair of the damage.15 None of them could be said to be an expert report going to the issues of liability or the cause of the resulting damage, let alone one conforming to the requirements under r 428 UCPR. The closest to that is a report from Mr McPherson, Ex EDPF-9.16 There are several features of Mr McPherson’s report that should be noted: (a) it is dated 23 October 2009, and therefore pre-dates the institution of the proceedings; (b) it refers to an earlier report dated 19 November 2008, but that report is not reproduced; (c) it refers to an inspection, and though it is not said when that was, it may be inferred that it is at least four years after the works that are said to have caused the damage; 14 AB 149-152. 15 AB 154, Exhibits EPDF-3 to EPDF-10. 16 AB 210. -- 8 of 18 -- 9 (d) it records the inspection as: “inspected the site, examined the adjacent properties, checked the configuration of the land, assessed stormwater runoff patterns, reviewed your history of damage caused in moderate rainfall events and examined various aspects of the condition of the building”; (e) it deals with the surface flow of water at the time of the inspection; in so far as it may be taken to refer to water flow at any other time, that time is not specified; (f) reference is made to Mrs Ferrari’s instructions as to what occurred in 2004, namely that during the construction of the Sovereign Hotel an earth bank at the rear of Mrs Ferrari’s property was cut away or removed, allowing surface water from the road and hillside at the rear to enter the property; however, at the time of the inspection “the bank had been restored”; even so, the author noted that “surface flows could still enter your property” and that there were “damp spots in the rear lawn” which “appear to be caused by the irrigation system owned by the Sovereign Hotel and Seagren Inn”; the excess water “appears to be taking a path across your property just below the surface”, and to seep underground towards the rear of the building;17 (g) further, the report notes that recent work of the Seagren Inn “would tend to exacerbate the problem of the dampness against your building and foundations”; (h) certain rectification work was recommended; and (i) some of the damage (cracks to the parapet, front column and some walls) was not caused by the development works to the rear.18 [33] It is evident that Mr McPherson’s report does not conform to r 428 UCPR, nor does it purport to deal with the works done in 2004 and whether that was done negligently. Consequently, even if it was a report that conformed to r 428, it does not deal with the issues central to the litigation. [34] Finally, one of the exhibits to Mrs Ferrari’s affidavit was a proposal from a firm for an expert stormwater assessment report.19 The proposal was dated 3 June 2015, after the applications to end the proceedings had been filed. It said that the report could be done within approximately 20 working days from being commissioned.20 The commissioning form was executed by Mrs Ferrari on 5 June 2015. [35] There was no evidence that the report had been progressed. That was the subject of criticism by senior counsel for Mr Carey, who contended that it could be taken into account as a further example of Mrs Ferrari’s delay or failure to progress the proceedings. I do not accept that contention. The hearing of the applications took place two weeks after the commission document was signed. The decision was reserved until 31 July 2015. Given that one result might be that the action would be dismissed it is not surprising that Mrs Ferrari did nothing further on that report. [36] The history of the expert report issued as outlined above was examined by the learned primary judge. His Honour’s conclusion, and one with which I respectfully agree, was:21 17 AB 211. 18 AB 212. 19 AB 218. 20 AB 220. 21 Ferrari Estate Holdings No 2 at [33]-[34]. -- 9 of 18 -- 10 “[33] On any view the plaintiff has repeatedly failed to advance its case through obtaining and serving expert evidence pursuant to the UCPR. [34] Its pattern of intimating something would be done about that but still not doing it was persisted in even after the filing of the present applications. Ms Ferrari’s affidavit exhibits a letter dated 3 June 2015 from Storm Water Consulting Pty Ltd, referring to Mr McPherson’s letter of 23 October 2009 and quoting for the carrying out of a hydraulic analysis of the catchment flows to the plaintiff’s property. This was presumably intended to show the plaintiff was intending to procure potentially relevant expert evidence. Instead it merely highlights a failure to gather potentially relevant evidence in the more than five years since Mr McPherson’s report.” [37] The review above also shows why the contentions of Mrs Ferrari on the issue of delay cannot be accepted. [38] First, the other parties (Cooktown Earthmoving and Mr Carey) did attempt to get the reports. Whilst it is true that they could have applied for directions or some other order to compel the reports, it is not really for a defendant to run a plaintiff’s case for them. Mrs Ferrari asserted from time to time, in 2010, 2011 and 2012, that she was getting reports, and nominated categories (builder, engineer, explosives, cement, hydrologist and a heritage conservation expert). The other parties had provided an expert report from Mr Fox in January 2011. Until there was something to contradict that report it is hard to conclude that the other parties should have done more. [39] Secondly, the failure to provide the expert report(s) was a continuing breach of r 429 UCPR. [40] Thirdly, I do not accept that the evidence before the learned primary judge reveals that Mrs Ferrari was overwhelmed by the task of collating the necessary expert reports. She insisted that she was getting reports, and did get at least one that could have been developed into an expert report. That report was obtained before legal proceedings were instituted, at which time she had solicitors on the record.22 Their retainer was terminated about six months later, on 17 September 2010.23 New solicitors were retained in September 2011, albeit in relation to other actions she had instituted.24 There is no reason to think that the first firm of lawyers could not have given instructions to experts, notwithstanding the criticisms levelled at the second lawyer (Mr Towne) by Mrs Ferrari.25 In any event Mrs Ferrari said she was receiving advice from counsel at the time Mr Towne was retained, and in any event did searches of her own to find a suitable expert.26 [41] It is evident that Mrs Ferrari decided to represent herself while the actions under the control of Mr Towne were being sorted out.27 That self-representation cannot really be seen as an excuse in respect of the failure to produce expert reports as it was Mrs Ferrari 22 A firm named Marino Moller: AB 222. 23 Second Respondent’s outline paragraph 10. 24 One was against the Cook Shire Council: AB 169. The other was against G and V Armstrong: AB 175. 25 In her letter to the Legal Services Commission: AB 169. 26 AB 169-170. 27 AB 171. -- 10 of 18 -- 11 herself who commissioned a report from a consulting structural engineer (Mr West) in February 2008,28 the report from Mr McPherson in October 2009, and the expert hydrologists, Storm Water Consulting Pty Ltd, in June 2015. Further, Mrs Ferrari did not direct the experts to focus on issues going to liability and causation, but more to repairs and rectification. Report of Mr Fox [42] The challenge to the weight given by the learned primary judge to the report of Mr Fox, was based on the fact that Mr McPherson had given a report which contradicted it, and therefore the case had some prospects of success.29 For the reasons set out in paragraphs [32]-[33] above, Mr McPherson’s report had significant limitations, both as to content and admissibility as an expert report. In truth it did not have much weight in terms of being a contradiction of what Mr Fox said. That is not surprising given that Mr McPherson’s report preceded that of Mr Fox, and there was no follow up report dealing with Mr Fox’s conclusions. [43] This point was only faintly advanced in oral submissions, and then only in the context of a submission that the learned primary judge held that there were some prospects of success. That may be accepted, but the learned primary judge compared Mr McPherson’s report to that of Mr Fox, and made the ultimate finding:30 “[29] [Mr McPherson’s report] raises the possibility that expert evidence in admissible form might be raised in support to some extent of the plaintiff’s case but the plaintiff has not obtained and served expert evidence under the UCPR. On the materials as they stand the defendants’ prospects of success appear better than the plaintiff’s. Given the imprecision in the known state of the plaintiff’s case I do not regard that consideration of prospects as a determinative consideration against it but plainly it is not a consideration that positively assists its position either.” [44] It has not been demonstrated that the learned primary judge erred in giving too much weight to Mr Fox’s report. Mrs Ferrari’s state of health [45] Mrs Ferrari was born on 22 June 1935, and thus was 80 years old at the time of the hearing below. She proffered some evidence that she had suffered from depression which she said was caused by the emotional and financial strain of the aftermath of the negligent work and damage to her building. Also she had surgery to remove a malignant cancer from her leg. She said these matters explained, at least in part, the delay in commencing the proceedings, and in the progress of the case.31 She also deposed to the strain that two other proceedings had caused.32 [46] The learned primary judge had reservations as to just what the medical evidence as to depression proved, finding that it related only to her condition in 2007, and did not constitute a diagnosis of the condition as opposed to recording that she was treated for it.33 28 AB 194. 29 Appellant’s outline paragraphs 11-16. 30 Ferrari Estate Holdings No 2 at [29]. 31 Affidavit of Mrs Ferrari, paragraphs 9-10; AB 156-157. 32 Affidavit of Mrs Ferrari, paragraph 11; AB 157. 33 Ferrari Estate Holdings No 2 at [19]-[22]. -- 11 of 18 -- 12 [47] The learned primary judge reviewed the medical evidence, such as it was, and concluded that whatever ill health issues there were, they did not debilitate her to such an extent that it provided an excuse for the delay and non-compliance with the steps that should have been taken to progress the case:34 “[23] Even accepting that she has suffered depression to varying degrees since the alleged damage and that it was aggravated by her melanoma diagnosis it does not follow that she was for prolonged periods debilitated to the extent of being unable to actively assist the plaintiff company to advance [the plaintiff’s] case. Moreover there is no evidentiary basis to conclude that the plaintiff company did not have the resources to advance its case without the active assistance of Ms Ferrari.” [48] No compelling reason has been advanced to challenge that finding, which was open to the learned primary judge. This aspect of the submissions should be rejected. Prejudice [49] The primary point on appeal was that the learned primary judge had wrongly assessed the prejudice that was said to flow from the unavailability of witnesses. The contention was that the recollection of events by the individuals involved was not likely to be critical or determinative. In that respect the submission focussed on the following part of the reasons below:35 “[36] Mr Coggins’ affidavit deposes to the director of [Cooktown Earthmoving] having informed him that the plant operators who performed the relevant works left [Cooktown Earthmoving’s] employ in 2004 and insofar as the director is aware they no longer live in Cooktown. That falls short of evidence that on detailed enquiry those potential witnesses cannot be found. However it does highlight the difficulty confronting the defendants in ensuring relevant witnesses will be available in support of the defendants’ case so long after the event. The affidavit of Ms Ellis complains more generally of the inevitable diminution in witness recollection and the adverse effect of having the ‘threat, uncertainty and stress of ongoing litigation’ hanging over [Mr Carey]. [37] I infer from the nature of this case and the delay involved that the defendants will inevitably have been prejudiced by the delay. The recollections of such witnesses as they can find will obviously be less reliable than would be the case had the litigation been instituted promptly and thereafter pursued in a timely way.” [50] That was attacked on the basis that it amounted to a finding that prejudice would inevitably flow from the delay whereas the evidence did not establish that the witnesses could not be found. I do not accept that contention. The learned primary judge made it clear that he did not regard the evidence as establishing that the relevant witnesses could not be found, with diligence. [51] The submission was that the only evidence of prejudice was what appears above and a recitation by Mr Carey’s solicitor, that his instructions were that his “recollection 34 Ferrari Estate Holdings No 2 at [23]. 35 Ferrari Estate Holdings No 2 at [36]-[37]. -- 12 of 18 -- 13 of events will inevitably diminish with time and further delay.”36 Then, the submission continued, the case was not one where it would depend on the recollection of plant operators or anyone else, but that the main issue being causation, expert evidence would be the main determinant. It was also said that the learned primary judge took a broad brush approach to the issue of prejudice. [52] For a number of reasons I do not consider those contentions can be accepted. [53] First, the experts would need to focus on the cause of the water intrusion into Mrs Ferrari’s property. The pleaded case was that: (i) the development and construction works were carried out on the neighbouring land of Sovereign Hotel;37 (ii) that altered the natural contours of both the Sovereign Hotel land and Mrs Ferrari’s land; and (iii) as a result, water was diverted onto Mrs Ferrari’s land, causing flooding.38 The relevant work was pleaded to be construction of an access road of the Sovereign Hotel land, a laundry, a retaining wall, and earthworks on the boundary of the adjoining blocks.39 [54] Mrs Ferrari pleaded the trespass case on the basis that both Cooktown Earthmoving and Mr Carey carried out the work and, in doing so, trespassed onto Mrs Ferrari’s land. The damage was pleaded to be destruction of a water pipe, removal of soil on Mrs Ferrari’s land, and the placement of rocks and soil on that land.40 [55] Particulars of the claim were given. They alleged that both Cooktown Earthmoving and Mr Carey performed the works, and both trespassed and caused the trespass damage.41 They also alleged certain precautions that should have been taken, including not doing the works in the wet season, installing water retention and diversion measures.42 [56] The defences put in issue were: (i) where the work was done; Cooktown Earthmoving pleaded its work was done only on the Sovereign Hotel land;43 (ii) by whom it was done; Mr Carey pleaded that he was not involved in earthworks except to do a retaining wall and drainage, and he was not retained to do the access road, and had nothing to do with it;44 (iii) what was done in relation to the contours of the land; Cooktown Earthmoving and Mr Carey deny that they did anything to alter the natural contours of Mrs Ferrari’s land or divert water;45 and (iv) the trespassing allegation; both Cooktown Earthmoving and Mr Carey deny they went onto the land at all.46 [57] That recitation of the issues demonstrates that any resolution of the issues would involve factual questions as to at least the following: what work was done by which defendant; where it was done; what the contour levels were before and after the works; what state the soil was in following completion of the work; what precautions could have been taken; did anyone trespass on Mrs Ferrari’s land, and if so, who; and if there was a trespass, was any damage done, and by whom? 36 AB 146, paragraph 20(a). 37 Statement of Claim, paragraph 8, AB 226. 38 Statement of Claim, paragraph 13, AB 228. 39 Statement of Claim, paragraph 9, AB 227. 40 Statement of Claim, paragraph 14, AB 228. 41 AB 256-259. 42 Paragraphs 7(d), (e), AB 258. 43 Second Defendant’s defence, paragraph 6, AB 240. 44 Third Defendant’s defence, paragraph 6, AB 264. 45 Second Defendant’s defence, paragraph 10, AB 241; Third Defendant’s defence, paragraphs 7 and 10, AB 265. 46 Second Defendant’s defence, paragraph 11, AB 241; Third Defendant’s defence, paragraph 11, AB 266. -- 13 of 18 -- 14 [58] That highlights the difficulty identified by the learned primary judge in the passages referred to above. The events were about 12 years ago, and assuming the witnesses could be located, they would have to recall a series of specific events from that time, and specific details such as contours, levels and locations in relation to the land boundaries. [59] Secondly, those matters show that the factual assumptions underpinning the expert reports would be critical to the opinions offered. Examples of that are: the question whether the water was diverted by the altered contours; the question of who was responsible for what area of the works; and whether there were reasonable measures that could have been taken that would have obviated the risk. [60] Thirdly, the case against the First Defendant was dismissed. It was pleaded that it retained the other defendants so questions might arise as to its responsibility for directing what work was to be done where, or even how. Further, the case against it being over, there is no incentive for its potential witnesses to be involved. [61] Fourthly, there is another aspect that follows from the fact that there was no timely preparation or delivery of expert reports. Central to Mrs Ferrari’s case, and those reports, is the allegation that the contours of the land were altered from what they had been, by the works carried out in 2004. The failure to commence proceedings for six years after the event, and the failure to achieve timely delivery of reports to substantiate the claim of negligence, causation and damages, have had the inevitable effect that the experts have been denied the chance to make the best inspection they could and to assess the damage closer in time to when it occurred. Both Mr Fox and Mr McPherson inspected the land many years after the event. Mr McPherson’s report suggested that the contours had changed between the works and when he inspected.47 Further, those failures have meant that the chance of properly responsive reports between the experts has been adversely affected. [62] Those factors support the conclusion that in this case a fair trial cannot now be had.48 In my respectful view there was an ample basis for the conclusion reached by the learned primary judge. Acquiescence and case management [63] A related submission was advanced, that the failure to complain about the delay meant that one could infer that there was, in truth, no prejudice. This submission had two parts, the other parties’ failure to take steps to force the matter on, and the fact that there was no case management because the matter was in the Cairns’ registry. [64] The submission accepted that there was a “total disconnect between Mrs Ferrari and the legal procedures involved in the conduct of litigation”.49 Further, that Mrs Ferrari had (at least at one point) put forward “a sort of a mish-mash of propositions that appear to be put forward to substantiate her claim”, but “how she saw that all playing out remains a mystery”.50 The submission proceeded that whilst Mrs Ferrari undoubtedly caused the delay, the other parties could have filed a request for a trial date or brought an application for directions. 47 AB 211. 48 Cf Quinlan v Rothwell [2002] 1 Qd R 647, per Thomas JA at [34]-[36]; Jeremy Taylor v State of Queensland [2009] QSC 318 at [39]. See also Prince Alfred College Incorporated v ADC [2016] HCA 37 at [105]. 49 Appeal transcript T1-8, line 39. 50 Appeal transcript T1-9, lines 1-3. -- 14 of 18 -- 15 [65] As to the parties’ acquiescence, reliance was placed on what was said by Thomas JA in Quinlan v Rothwell:51 “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.” [66] Reliance was also placed on the following passage from the decision of Underwood J in Hookway Aerospace Pty Ltd v Commonwealth of Australia:52 “[6] With respect to the issue of delay, although it is quite clear, as I say, that the respondent has been guilty of inordinate delay, I would venture to note that at no stage during the period of delay did the applicant seek to invoke the case management procedures available by the Rules of Court, formerly O32A. In this context, I repeat a passage from my judgment in Kosta Khavounitis v NRMA Insurance Ltd [1999] TASSC 2: ‘In my view, an applicant who complains of delay and asks for a strike out order but has not sought pre-trial orders pursuant to O32A, needs to explain why he or she did not have recourse to the case management offered by O32A in an attempt to eliminate that delay at an early stage. Unexplained failure to invoke case management to eliminate delay may, as it does in this case, lead to the inference that no objection was taken to the delay.’” [67] The submission also referred to what was said in Stollznow v Calvert:53 “[11] … the right of defendants to let sleeping dogs lie and that defendants should not be penalized for earlier inaction when subsequently an application is made to dismiss proceedings for want of prosecution, no rigid rule can be laid down on the matter. By way of example, which I give because of its relevance in the present case, in some cases inaction by a defendant in the face of impending prejudice to him if delay continues, may render a later claim of actual prejudice less creditworthy, and the prejudice, if established, a less weighty factor… It is too simplistic an approach to regard preparation for, and bringing the proceeding to trial, as a one sided affair resting entirely on the plaintiff, who has the carriage of the action. I cannot accept, for example, that a defendant, who has written complaining of the delay and warning that particular prejudice will occur to him if delay continues, is not, on a later application to dismiss the proceedings, in a position superior to that of a defendant who has lain silent, and later claims for the first time that prejudice has occurred by reason of the delay. Whatever may have been past views of the adversary system in regarding skill in exploiting the rules in an adversary duel as some kind of virtue, current ideas of justice, at least in this country, are directed to the substance of things. 51 [2002] 1 Qd R 647 at [29]. 52 [2000] TASSC 112, at [6]. (Hookway) 53 [1980] 2 NSWLR 749, at [11], per Moffitt P, Hope and Mahoney JJA concurring. (Stollznow) -- 15 of 18 -- 16 The exercise of the undoubted right of a defendant to do nothing runs the risk of being classified in the circumstances of some cases as being in the category of the ‘ambush’ approach to litigation.” [68] For the following reasons I do not consider that this contention should be accepted. [69] It may be accepted that the Uniform Civil Procedure Rules (UCPR) have the purpose of facilitating the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense: r 5(1). However r 5(3) only casts an obligation on a party to proceed expeditiously. The balance of the rules dealing with such things as applications for directions, applications generally, or the filing of request for a trial date, provide for various steps to be taken, either compulsorily or as an option to a party. However, absent the strictures of the Supervised List or some other form of case management such as being listed on the Commercial List, the rules themselves do not make it compulsory to apply to court if a party does not observe some step or obligation under the rules.54 Even in the case of those rules that enable the premature termination of the proceedings, such as r 280 or r 293, the rules are permissive. [70] Whatever the effect of r 5(3), it does not make a defendant responsible to prosecute a plaintiff’s case. In my view one cannot necessarily infer the absence of prejudice from the failure of a defendant to take steps to compel a plaintiff to obey the rules so as to avoid delay. Every case will depend on the particular facts. The correct conclusion is, in my respectful view, as was put in Stollznow, that inaction by a defendant in the face of impending prejudice if delay continues, may render a later claim of actual prejudice less creditworthy, and the prejudice, if established, a less weighty factor. [71] In this case Mrs Ferrari periodically stated that she was in the process of retaining experts, and obtaining reports, and the other parties sought to obtain them: see paragraphs [30]-[38] above. The bulk of those statements occurred after the other parties had delivered the report of Mr Fox, on 6 January 2011. In my view, it is difficult to maintain that the failure of the other parties to resort to applications to compel the reports should lead to the conclusion that their assertion of prejudice is less credible or weighty. It was open to the learned primary judge to reach the conclusion that there was relevant prejudice. [72] I would not, with respect, adopt the proposition in Hookway in the terms expressed. Failure to invoke case management may be a relevant factor but whether it is, and what weight it carries, will depend on the circumstances of the particular case. In this case the use of the Supervised List cannot be criticised given that it applies to cases in the Brisbane registry. Case management issue [73] As to the case management aspect, reliance was placed on the following passage from the reasons of Applegarth J in Mbuzi v Hall:55 “The just resolution of the real issues in civil proceedings may on occasions require a judge to give proper assistance to self-represented litigants to ensure that the proceedings are conducted fairly and to avoid ‘undue delay, expense and technicality.’” 54 For example see r 366 (directions), r 371 (failure to comply with the rules), r 374(3) (failure to comply with an order), r 429S (appointment of an expert), r 467 (request for trial date). 55 [2010] QSC 359, at [25]. Internal footnote omitted. -- 16 of 18 -- 17 [74] The contention based on case management was not raised before the learned primary judge. It suffers also from the fact that it drew support from Practice Direction No. 10 of 2014, governing the operation of the Supervised Case List in the civil jurisdiction in Brisbane. There was no equivalent in Cairns. Those matters are sufficient to dispose of the submission. Conclusion [75] Senior Counsel for Mrs Ferrari placed emphasis on a passage from Artahs Pty Ltd v Gall Standfield & Smith (A Firm):56 “[77] It seems to me to be a very strong thing to deny a plaintiff a trial, in a case where it appears to have reasonable prospects of success, preparation of the matter is well advanced, and the delay does not mean that a fair trial cannot be ensured.” [76] The learned primary judge accepted that Mrs Ferrari had some prospects of success in the proceedings, but it was qualified by the fact that there was no expert evidence that showed it was a strong case.57 The only support that could be pointed to was in the report of Mr McPherson, and its limitations have been addressed above. That led the learned primary judge to conclude that:58 “On the materials as they stand the defendants’ prospects of success appear better than the plaintiff’s. Given the imprecision in the known state of the plaintiff’s case I do not regard that consideration of prospects as a determinative consideration against it but plainly it is not a consideration that positively assists its position either.” [77] On that finding, which in my view was open, the case cannot be said to have reasonable prospects of success in the way mentioned in Artahs. [78] More importantly, the present case is, as was found by the learned primary judge, nowhere near to trial.59 Therefore the reliance on Artahs is misplaced. [79] The learned primary judge’s conclusion as to the fate of the application was expressed in this passage:60 “[39] In summary the plaintiff has engaged in prolonged delays both before and after the institution of this litigation. It has failed to comply with its implied undertaking to proceed in an expeditious way. Such explanations as are proffered for its delays are wholly inadequate to explain delays of the magnitude that have occurred here. On the face of what little evidence it has actually gathered to date its case cannot be said to have developed good prospects of success and is far short of being ready to be listed for trial. [40] The conclusion is irresistible that the plaintiff has long considered the defendants should wait for the case to be progressed as and when it suits its director Ms Ferrari to progress it.” 56 [2012] QCA 272, at [77], per P Lyons J, Fraser JA concurring. (Artahs) 57 Ferrari Estate Holdings No 2, at [25]-[29]. 58 Ferrari Estate Holdings No 2, at [29]. 59 Ferrari Estate Holdings No 2, at [39]. That finding was not challenged on appeal. 60 Ferrari Estate Holdings No 2, at [39]-[40]. -- 17 of 18 -- 18 [80] In my view, for the reasons set out above those conclusions were open to the primary judge and it cannot be demonstrated that his exercise of the discretion has miscarried. I would dismiss the appeal. [81] The orders I propose are: 1. The application for an extension of time within which to appeal is granted. 2. The appeal is dismissed. 3. The appellant pay the respondents’ costs of the appeal, to be assessed on the standard basis. [82] PHILIP McMURDO JA: I agree with Morrison JA. [83] PETER LYONS J: I have had the advantage of reading in draft the reasons for judgment of Morrison JA. I agree with them and the orders proposed by his Honour. -- 18 of 18 --