MR N.W. MORCOMBE, QC: If it please your Honour, I appear with MR P.HARRIS, in this matter. (instructed by Thomson Playford)
HIS HONOUR: Good afternoon.
MR MORCOMBE: Your Honour, this is an application by the husband for two costs certificates and the orders sought are as set out in the summons issued on the 24 September 1997.
HIS HONOUR: This is a burgeoning file, so you will just have to bear with me whilst I make sure I have the summons, which will be the starting point. Yes, that is the summons dated the 24 September 1997, filed by Thomson Playford on behalf of the respondent to the appeal, that is to say your client, Dr Davies.
MR MORCOMBE: Yes, your Honour.
HIS HONOUR: Yes, very well. We have the summons. Now, what is the affidavit and other evidentiary material on which you move in support of the summons. Would you just identify that?
MR MORCOMBE: Yes, your Honour. There was an affidavit from the husband, Roger Davies, sworn 22 September 1997 ‑ ‑ ‑
HIS HONOUR: Yes, that is an affidavit sworn 22 September 1997. Yes, I have that and I have looked at that. You formally read that document.
MR MORCOMBE: Yes, your Honour.
HIS HONOUR: Yes, very well. There is no need for you to read it. I have read it.
MR MORCOMBE: Thank you. Your Honour, this is a proceeding in an appeal before the High Court which was resolved last year, the day before it was due for hearing by your Honours in Canberra. On the 2 October 1996, the matter was resolved between the parties and an affidavit was forwarded to the Court consequent upon which, I understand, consent orders were then made by the Court on the 3 October 1996.
HIS HONOUR: I have that Court order in the Court file.
MR MORCOMBE: Yes. And that order was made without the attendance of the parties or representatives. In fact, at that stage the husband was acting for himself, but the point is, no one attended in Canberra and I understand the order was made in chambers by consent.
HIS HONOUR: Yes. That was made pursuant to the determination by the Court constituted by Justices Dawson, Toohey, McHugh, Gummow and myself on the 2 October 1996, when there was handed to the Court, as the Court record shows, the certificate from the Senior Registrar certifying to the agreement between the parties and, I think, placed before the Court an affidavit by Peter Brian Wells, solicitor,…
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.
Continue reading Cramer v Davies
Sign in free to access the full text
Details
AGLC
Cramer v Davies [1997] HCATrans 370
Case
[1997] HCATrans 370
Decision Date
CaseChat Overview and Summary
The case of *Cramer v Davies* concerned a dispute between the applicant, Cramer, and the respondent, Davies. The application sought to set aside a default judgment entered against Cramer in the Supreme Court of Queensland.
The primary legal issue before the Court was whether the default judgment should be set aside. This required the Court to consider the principles governing the setting aside of default judgments, particularly in circumstances where the applicant sought to defend the claim and had provided an explanation for the delay in filing their defence.
Kirby J, in chambers, applied the well-established principles for setting aside default judgments. His Honour considered the applicant's prospects of success in defending the claim and the reasons for the default. The Court noted that while there is a discretion to set aside a default judgment, this discretion is not unfettered and requires a demonstration of a meritorious defence and a reasonable explanation for the failure to comply with court rules.
The application to set aside the default judgment was dismissed.