Cameron v Qantas Airways Ltd - [2009] NSWCA 339

New South Wales

Court of Appeal

CITATION: CAMERON v QANTAS AIRWAYS LTD [2009] NSWCA 339

HEARING DATE(S): 14 October 2009

JUDGMENT DATE:
14 October 2009

JUDGMENT OF: Basten JA at 1; Macfarlan JA at 1

EX TEMPORE JUDGMENT DATE: 14 October 2009

DECISION:
(1) By consent:
(i) allow the appeal;
(ii) set aside the judgment and orders of the District Court;
(iii) remit the matter to the District Court.
(2) Respondent to pay the legal disbursements of the applicant in this Court.
(3) Refer the applicant to the Registrar for referral to a lawyer on the Pro Bono Panel for advice and assistance in preparing for any further proceedings in relation to the consent judgment in the District Court.

CATCHWORDS: APPEAL – application for leave to appeal – proposed appeal from dismissal of motion to set aside consent judgment – motion heard by trial judge – rejection of applicant’s evidence not subject of cross-examination – no express credibility finding - PROCEDURE – challenge to consent judgment – allegation of duress or unde influence in relation to settlement agreement – whether proper procedure required separate proceeding – whether notice of motion appropriate

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 (NSW), Pt 36, r 15

CASES CITED: Across Australia Finance Pty Ltd v Bassenger [2008] NSWSC 799
Cameron v Qantas Airways Limited [2008] NSWCA 275
Logwon Pty Limited v Warringah Shire Council (1993) 33 NSWLR 13
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691

PARTIES: Rita Cameron – Applicant
Qantas Airways Ltd - Respondent

FILE NUMBER(S): CA 40218/09

COUNSEL: Self-represented – Applicant
J Catsanos - Respondent

SOLICITORS: Self-represented – Applicant
HWL Ebsworth Lawyers- Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 6941/01

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

LOWER COURT DATE OF DECISION: 14 April 2009

CA 40218/09
DC 6941/01

BASTEN JA
MACFARLAN JA
14 October 2009

Rita CAMERON v QANTAS AIRWAYS LTD

Judgment

1 JUDGMENT of THE COURT delivered by BASTEN JA: This was an application for leave to appeal against a judgment of the District Court delivered by McLoughlin DCJ on 14 April 2009.

2 The issue in dispute concerns a consent judgment made by the District Court, based on terms of settlement of a dispute between the applicant and the respondent. This matter has a history, which need not be recounted, but it has been before this Court on a previous occasion. The applicant originally sought to challenge that consent judgment by way of application for leave to appeal to this Court, which was dismissed on 14 October 2008: see Cameron v Qantas Airways Limited [2008] NSWCA 275. In the course of dismissing that application, the Court noted that there was an alternative procedure available which might allow a consent judgment to be challenged by way of separate proceedings.

3 The matter then went back to the District Court. On 11 December 2008 the applicant filed a notice of motion which alleged that the consent orders had been made under extreme pressure…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2009] NSWCA 339
Decision Date: 14 October 2009

CaseChat Overview and Summary

Cameron, the applicant, sought leave to appeal from a decision of the District Court that dismissed a motion to set aside a consent judgment. The motion was heard by the trial judge, and the applicant's evidence was rejected without cross-examination and without an express finding of credibility. The dispute concerned an allegation of duress or undue influence in relation to a settlement agreement that led to the consent judgment.

The primary legal issues before the Court of Appeal were whether the applicant had followed the proper procedure in challenging the consent judgment, specifically whether a separate proceeding was required or if a notice of motion was appropriate, and whether the trial judge had erred in rejecting the applicant's evidence without cross-examination or a credibility finding.

The Court of Appeal allowed the appeal by consent. It set aside the judgment and orders of the District Court and remitted the matter back to the District Court for further proceedings. The respondent was ordered to pay the legal disbursements of the applicant in the Court of Appeal, and the applicant was referred to the Registrar for assistance in preparing for any further proceedings concerning the consent judgment.

Orders

Orders of the court

(1) By consent:

(i) allow the appeal;

(ii) set aside the judgment and orders of the District Court;

(iii) remit the matter to the District Court.

(2) Respondent to pay the legal disbursements of the applicant in this Court.

(3) Refer the applicant to the Registrar for referral to a lawyer on the Pro Bono Panel for advice and assistance in preparing for any further proceedings in relation to the consent judgment in the District Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	CAMERON v QANTAS AIRWAYS LTD [2009] NSWCA 339
HEARING DATE(S):	14 October 2009
JUDGMENT DATE:	14 October 2009
JUDGMENT OF:	Basten JA at 1; Macfarlan JA at 1
EX TEMPORE JUDGMENT DATE:	14 October 2009
DECISION:	(1) By consent: (i) allow the appeal; (ii) set aside the judgment and orders of the District Court; (iii) remit the matter to the District Court. (2) Respondent to pay the legal disbursements of the applicant in this Court. (3) Refer the applicant to the Registrar for referral to a lawyer on the Pro Bono Panel for advice and assistance in preparing for any further proceedings in relation to the consent judgment in the District Court.

CATCHWORDS:	APPEAL – application for leave to appeal – proposed appeal from dismissal of motion to set aside consent judgment – motion heard by trial judge – rejection of applicant’s evidence not subject of cross-examination – no express credibility finding - PROCEDURE – challenge to consent judgment – allegation of duress or unde influence in relation to settlement agreement – whether proper procedure required separate proceeding – whether notice of motion appropriate
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 (NSW), Pt 36, r 15
CASES CITED:	Across Australia Finance Pty Ltd v Bassenger [2008] NSWSC 799 Cameron v Qantas Airways Limited [2008] NSWCA 275 Logwon Pty Limited v Warringah Shire Council (1993) 33 NSWLR 13 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
PARTIES:	Rita Cameron – Applicant Qantas Airways Ltd - Respondent
FILE NUMBER(S):	CA 40218/09
COUNSEL:	Self-represented – Applicant J Catsanos - Respondent
SOLICITORS:	Self-represented – Applicant HWL Ebsworth Lawyers- Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 6941/01
LOWER COURT JUDICIAL OFFICER:	McLoughlin DCJ
LOWER COURT DATE OF DECISION:	14 April 2009