Doyle v James

[1993] QCA 332

IN THE COURT OF APPEAL	[1993] QCA 332
SUPREME COURT OF QUEENSLAND

Appeal No. 69 of 1993

Brisbane

[Doyle v James]

BETWEEN:

MICHAEL FREDERICK DOYLE

(Plaintiff) Respondent

AND:

ROBERT ERNEST JAMES

(Defendant) Appellant

____________________________________________________________
_____

DAVIES J.A. AMBROSE J.

WHITE J.

____________________________________________________________

_____

Judgment delivered 13/09/1993

REASONS FOR JUDGMENT - THE COURT
____________________________________________________________

_____

APPLICATION FOR LEAVE TO APPEAL DISMISSED WITH COSTS
____________________________________________________________

_____

CATCHWORDS:	PRACTICE - SUMMARY JUDGMENT - Application for leave to appeal against alleged refusal to adjourn summary judgment application and order granting liberty to sign judgment - Defendant on summary judgment application failed to show cause by personal affidavit dealing with critical facts deposed to by plaintiff - Leave required to appeal against order granting liberty to sign judgment - Whether important question of law or justice involved to warrant granting leave
District Courts Act, s.92(2) District Courts Rules, rr. 153(c), 160
Cox Brothers (Australia) Ltd v. Cox (1934) 50 C.L.R 314 Dudgeon v. Chie (1955) 92 C.L.R. 342 Hewitt v. American Express International Inc. Q.L.R. 17/7/93 Landerwood Pty Ltd v. Smith (1986) 13 Qld Lawyer Rep. 85
Racemate Holdings Pty Ltd v. Weston (1990) 13 Qld Lawyer Rep. 82
Counsel:	R.W. Morgan for the Appellant A. Heyworth-Smith for the Respondent
Solicitors:	Halletts for the Appellant Georgeson & Co. for the Respondent
Hearing Date(s):	31 August 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 69 of 1993
Brisbane
Before Mr Justice Davies

Mr Justice Ambrose

Justice White

[Doyle v. James]

BETWEEN:

MICHAEL FREDERICK DOYLE

(Plaintiff) Respondent

AND:

ROBERT ERNEST JAMES

(Defendant) Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 13/09/1993

The applicant was the defendant in a District Court action in which the respondent, the plaintiff in the action, sought summary judgment. In these reasons we will refer to them as the defendant and plaintiff respectively. The action was for moneys lent by the plaintiff to the defendant pursuant to an oral agreement.

The defendant submitted to this Court that on the hearing of the application for summary judgment he sought an adjournment which was refused. He seeks leave to appeal against that alleged refusal. In the alternative, he seeks to adduce further evidence on this appeal and, based on that evidence, leave to appeal against the order made authorising the plaintiff to sign judgment.

Upon the application for summary judgment, the plaintiff swore an affidavit deposing to the fact that, at the defendant's request, he lent him, on specified occasions, sums totalling $107,524.88 and was repaid, also on specified occasions, sums totalling $38,584.00, leaving a balance owing of $68,940.88. He swore that the defendant, an earthmoving contractor, promised, on the occasions upon which sums of money were advanced, that the loans would be paid in a very short time when he received payment for earthmoving work in which he was at that time engaged, or, failing that, upon demand.

The defendant did not show cause by a personal affidavit which rr. 153(c) and 160 of the District Courts Rules have been construed to require: Landerwood Pty Ltd v. Smith (1986) 13 Qld Lawyer Rep. 85; Racemate Holdings Pty Ltd v. Weston (1990) 13 Qld Lawyer Rep. 82. Instead, his solicitor, Mr Casalegno, swore that on 25 March 1993 he was informed by the defendant and verily believed:

(a)  that moneys sought to be recovered by the plaintiff in the action constituted a loan to Bo's Plant Hire Pty Ltd, a company of which he was formerly a director and which went into liquidation in or about November 1990;

(b)  the company made several payments to the plaintiff prior to going into liquidation in reduction of the amount owing;

(c)  the defendant did not recall any cash payments being made either by himself or the company to the plaintiff in payment of the said loan;

(d)  due to the fact that all documentation relating to the business carried on by the company was in the hands of its liquidators, the defendant was unable to produce receipts and other documentation concerning the advance to the company;

(e)  consequently the defendant considered that the company was responsible for the payment of the moneys claimed by the plaintiff and not himself personally;

and that he was instructed to seek leave of the court to
enable the defendant to defend the proceedings.

It does not seem that Mr Casalegno's affidavit was objected to on the basis that the above rules required a personal affidavit by the defendant. However, in addition to its hearsay character, the affidavit of Mr Casalegno failed to deal with the critical facts deposed to by the plaintiff, namely the making of an oral agreement for loan. He did not say what the defendant said had passed between him and the plaintiff from which it could be inferred that there was a common intention between them that the moneys paid by the plaintiff would be loans, not to the defendant, but to his company which went into liquidation in November 1990. Of the five advances sworn to by the plaintiff totalling $107,524.88, two of them were made in September 1990 and three in October 1990, the last on 25 October 1990.

In an affidavit filed by leave in this Court, Mr Casalegno has sworn that in the course of the hearing of the application below he informed the learned District Court judge that the defendant might be able to obtain documentation concerning the loan from the liquidators of the company. Her Honour responded by asking whether he was applying for an adjournment on that basis and he replied "Yes, if the Court is minded to grant one." No further exchange is deposed to between her Honour and Mr Casalegno on this question and it appears from his affidavit that submissions were then made on both sides on the merits of the application. At no stage did her Honour in terms make an order refusing the adjournment and it may be doubted whether a formal application for an adjournment was ever in fact made.

On the assumption which we make, for the purpose of considering this question, that an application for an adjournment was made and refused, the first question which arises in this Court is whether, pursuant to s. 92(2) of the District Court Act, leave should be granted to appeal against that decision. That depends on whether some important question of law or justice is involved. We do not think that any question of law was involved in her Honour's consideration of the application for an adjournment, nor do we think that there is any important question of justice involved. There is much to be said for the view that, for there to be an important question of justice involved, there must be a question going beyond the consequence of the decision upon the immediate parties: compare Hewitt v. American Express International Inc. & anor. Q.L.R. 17/7/93. But even if consideration of this question were confined to the consequences to those parties, the affidavit of the defendant which would be filed and read if we were to allow additional evidence on this appeal shows that, even if an adjournment had been granted, the defendant had no intention of contradicting in any particularity the conversations to which the appellant deposed in which the agreements to lend the money were made. It exhibits copies of a number of documents which were internal documents of either the defendant or a company with which he was associated and which were not said to have ever come to the knowledge of the plaintiff. And it baldly deposes to the fact that he approached the plaintiff on behalf of the company to borrow money and that the plaintiff agreed to lend money to the company. No attempt is made to specify what was said in conversations which he admits he had with the plaintiff in which it was agreed that the loans would be made.

It may well be that, despite that obvious deficiency, if this affidavit of the defendant had been filed upon the summary judgment application, the proper course would have been to refuse leave to sign judgment. However, in that application the defendant failed to file any affidavit at all; his solicitor, Mr Casalegno, failed to depose to what the defendant said had been discussed between him and the plaintiff; and the only possibility of further material coming from the defendant appeared to be the possibility of documents in the hands of the liquidators which, it now appears, do not bear on the contract made between the plaintiff and the defendant. Even looking at it with hindsight, the refusal to grant an adjournment for the purpose of obtaining that material does not seem to have been unjust.

We would therefore refuse leave to appeal against the decision, assuming, which we doubt, that there was one, refusing an adjournment.

It is unnecessary to consider whether we should at this stage admit further evidence in the form of a further affidavit from the defendant to which we have already referred because, even having regard to that further affidavit, we would not grant leave to appeal against the order made giving leave to sign judgment. It was accepted by the applicant that to appeal against that order required leave. That appears to be plainly correct. See Cox Brothers (Australia) Ltd v. Cox (1934) 50 C.L.R. 314; Dudgeon v. Chie (1955) 92 C.L.R. 342.

No question of law is involved. The plaintiff deposed to an oral agreement between the parties and the defendant has failed to show cause by deposing with particularity, even at this stage, to what he said passed between them. Rather, he has sought to swear to the issue; that the agreement was made with his company, not with him. For those reasons also no question of justice is involved.

We would therefore refuse leave to appeal against the order giving leave to sign judgment. The defendant must pay the costs of these proceedings.