Curry v Goldsea Pty Ltd

[1992] QCA 256

[1992] QCA 256

COURT OF APPEAL

PINCUS JA
MOYNIHAN J 
AMBROSE J

Appeal No 152 of 1992

VALERIE EVELYN CURRY

Appellant

and

GOLDSEA PTY LTD

Respondent

BRISBANE

..DATE 21/07/92

JUDGMENT

210792
THE CHIEF JUSTICE:     This is an application for leave to appeal against an order made by an Acting Judge of District Courts.

The application comes under section 92 subsection 2 of The District Courts Acts, which says that a person dissatisfied with a judgment of that Court may, by leave, appeal to this Court, but such leave is to be granted inter alia only when some important question of law or justice is involved.

The question then for us is whether in this case where leave to appeal is sought, there is such a question involved.  A Judge of District Courts, not the one whose order is presently challenged, but at an earlier time, gave leave to enter summary judgment or ordered that summary judgment be entered, whichever is the correct description in the practice of that Court.

It is said that he wrongly so ordered, because on the material before him he could not properly have been satisfied that affidavits necessary to ground the application to him had actually been served.  Such affidavits were nevertheless relied on before him.  It was also said there was a further reason why he wrongly made the order and that was because there was no statement by a deponent in that material of a belief that there was no defence to the action.  I should add, however, that it appeared sufficiently in those proceedings that it had been conveyed to the solicitors for the plaintiff, that the representatives of the defendant were not opposing the application which was to be made.  Subsequently then, a challenge was made to the propriety of the order before an Acting Judge of District Courts.

That Acting Judge ordered on 24 June 1992 that the order previously made be set aside and the defendant have leave to defend, but he did that on condition that the defendant file and serve a necessary counterclaim and, more importantly, also pay an amount of $10,000 on account of the plaintiff’s costs within 21 days.

Before us it is accordingly said that the Acting Judge was wrong in not setting aside unconditionally the first order that had been made.  It was said that there was an irregularity, a failure to abide by established rules and to follow the principles of law applicable in this situation, when he did not set aside the first order unconditionally.

It is not a matter for us whether the orders made below are subject to some objection in point of law:  the question for us is whether there is an important question of law or justice involved.  In view of what had been conveyed to the solicitors for the plaintiff at the time of the first application, or perhaps I should say, particularly in view of what had been conveyed to them, namely, that there would not be any opposition to the application, I cannot, for myself, see any important question of justice involved.  Nor can I see that an important question of law is involved.

That is distinct from a situation in which a decision which may be erroneous, I need to say nothing finally on that - may be erroneous in point of law has been handed down.  An error in point of law will not necessarily fulfil a requirement that an important question of law be involved.

I do not, accordingly, then see in these circumstances I have outlined that there has been any compliance with the requirement of section 92.2 of the District Courts Acts and I would refuse leave simply on the basis that it has not been demonstrated to my satisfaction that an important question of law or justice is involved in the challenge to the decision immediately before us or in the effect of that decision taken in conjunction with the earlier decision of the District Court Judge.

McPHERSON JA:    I agree.

DAVIES JA:     I agree.

THE CHIEF JUSTICE:     The application is refused.  You can’t oppose the application for costs, I suppose, Mr Favell, can you?   The respondent to have the costs of and incidental to the application, to be taxed.
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