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

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DAVIES J.A. AMBROSE J.

WHITE J.

____________________________________________________________

_____

Judgment delivered 13/09/1993

REASONS FOR JUDGMENT - THE COURT
____________________________________________________________

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APPLICATION FOR LEAVE TO APPEAL DISMISSED WITH COSTS
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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

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 Doyle v James

Details

AGLC: Doyle v James [1993] QCA 332
Case: [1993] QCA 332
Decision Date: 13/09/1993

CaseChat Overview and Summary

The case of Doyle versus James involved a summary judgment application where the defendant failed to respond to the plaintiff's critical facts. The matter was heard in the Supreme Court of Queensland. The plaintiff, Doyle, applied for summary judgment against James, who did not provide an affidavit addressing the key issues raised in Doyle's application. The defendant subsequently applied for leave to appeal against the refusal to adjourn the summary judgment application and the order granting liberty to sign judgment. The legal issues before the court were whether the refusal to adjourn the summary judgment application and the order granting liberty to sign judgment were correct and whether the appeal should be heard due to an important question of law or justice involved.

The court examined the application and found that the defendant had not provided an affidavit that addressed the critical facts deposed to by the plaintiff. The court concluded that the defendant had failed to show cause for the adjournment of the summary judgment application. The court also found that the order granting liberty to sign judgment was appropriate as the defendant had not raised any valid defences or objections. The court considered whether an important question of law or justice was involved to warrant granting leave to appeal. The court held that the appeal did not raise any important question of law or justice that would warrant granting leave.

The court dismissed the application for leave to appeal against the order granting liberty to sign judgment. The court found that the defendant had not demonstrated that the refusal to adjourn the summary judgment application and the order granting liberty to sign judgment were incorrect. The court also held that the appeal did not raise any important question of law or justice that would warrant granting leave. The court concluded that the plaintiff's application for summary judgment should be granted.

Orders