Biddle v Formosa

[2000] QCA 366

SUPREME COURT OF QUEENSLAND

CITATION:

Biddle v Formosa [2000] QCA 366

PARTIES:

ANNE SHIRLEY BIDDLE
(plaintiff/respondent)
v
KATRINA JULIETTE FORMOSA
(defendant/applicant)

FILE NO/S:

Appeal No 6208 of 2000
DC No 154 of 1991

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

12 September 2000

DELIVERED AT:

Brisbane

HEARING DATE:

1 September 2000

JUDGES:

McPherson and Thomas JJA, Atkinson J
Separate reasons for judgment of each member of the Court,
each concurring as to the order made

ORDER:

Application refused with costs

CATCHWORDS:

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – DISPOSITION WITHOUT TRIAL - application for leave to appeal from dismissal of application to set aside a judgment in default of appearance –– whether plaintiff would suffer irreparable prejudice – whether defendant responsible for the delay and/or the prejudice suffered by the plaintiff – whether satisfactory explanation for delay 

District Court Rules (Qld), r 229

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, referred to
Evans v Bartlam [1937] AC 473, considered

National Mutual Life Association of Australasia Limited v Oasis Developments Pty Ltd [1983] 2 Qd R 441, considered

COUNSEL:

G D Garrick for the applicant
D A Kelly for the respondent

SOLICITORS:

Boyce Garrick for the applicant
Sykes Pearson & Miller for the respondent

1. McPHERSON JA:  I agree with the reasons of Thomas JA, which I have had the advantage of reading.

1. The application should for those reasons be refused with costs.

1. THOMAS JA:  The applicant was the defendant in proceedings instituted in the District Court in 1991.  Judgment was given against her on 23 February 1995 when she failed to appear at the hearing after the matter had been set down for trial.  On 31 March 2000 she filed an application to set aside that judgment, and her application was dismissed on 21 June 2000.  She now applies to this court for leave to appeal against that order.  It will be convenient to refer to the respondent as the plaintiff and to the applicant as the defendant.

1. The claim made in the action related to dealings between the plaintiff and the defendant between April 1990 and June 1991 during which the defendant managed the plaintiff's jewellery shop at Noosa.  The claim was for alleged failure of the defendant to account in respect of certain jewellery which comprised part of the stock managed by her.  The relevant events therefore occurred nine or 10 years ago.

1. The action progressed fairly normally through stages of pleading and discovery until April 1993.  The matter then seems to have lost some impetus.  In the meantime, in November 1992 the defendant had left Australia and returned to England where it seems, apart from some travelling including trips to Australia in October 1997 and February 1999, she has resided ever since.

1. On 22 October 1993 the defendant's legal aid was terminated.  Her own solicitor thereafter…