Embrey v Smart

Case [2014] QCA 75

SUPREME COURT OF QUEENSLAND

CITATION:

Embrey v Smart [2014] QCA 75

PARTIES:

ADRIAN JAMES EMBREY
(appellant)
v
PHILLIP JOHN SMART
(respondent)

FILE NO/S:

Appeal No 9564 of 2013
SC No 7490 of 2010
SC No 9104 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

27 March 2014

JUDGES:

Muir and Morrison JJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal allowed.

2.   Set aside orders made on 17 May 2013 in proceeding No 9104 of 2010.

3.   The application filed 24 April 2013 in proceeding No 9104 of 2010 be dismissed.

4.    The respondent pay the costs of and incidental to the application filed on 24 April 2013 in proceeding No 7490 of 2010, the costs of and incidental to the application filed 24 April 2013 in proceeding No 9104 of 2010 and the costs of and incidental to the appeal to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SERVICE – SUBSTITUTED SERVICE – where the appellant was injured in October 2007 after being allegedly assaulted by the respondent – where the respondent was personally served with a Notice of Claim – where the Notice was not responded to – where in July the appellant’s filed an originating application seeking the dispensation of attending a compulsory conference and pursuant to r 116 of the Uniform Civil Procedure Rules 1999 (Qld) that service of the appellant’s claim be substituted by causing those documents to be personally delivered to a specified address – where the document for which substituted service was sought had not yet been filed – whether the document for which substituted service was sought needed to have been filed before an order under r 116(1) UCPR could be made – whether order for substituted service was validly made

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – JURISDICTION AND GENERALLY – SETTING ASIDE JUDGMENTS – where an order for substituted service was made and service effected according to order – where the order for substituted service was not set aside prior to service being effected – whether the order was a judicial order of a superior court – whether the order remains valid until set aside

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – JURISDICTION AND GENERALLY – SETTING ASIDE JUDGMENTS – where a default judgment was regularly entered – where the respondent failed to give a satisfactory explanation for his failure to appear to the proceeding – where the respondent’s affidavit stated legal conclusions without supporting evidence – where the affidavit did not swear to the truth and accuracy of an attached draft defence – whether a prima facie defence disclosed

Continue reading Embrey v Smart

Sign in free to access the full text

Details
AGLC
Embrey v Smart [2014] QCA 75
Case
[2014] QCA 75
Decision Date

CaseChat Overview and Summary

The appeal in Embrey v Smart concerns the validity of certain procedural orders made in the context of an assault claim. The appellant, who was injured in October 2007, sought damages from the respondent who allegedly assaulted them. The respondent was initially served with a Notice of Claim but did not respond. Subsequently, the appellant filed an originating application seeking dispensation from attending a compulsory conference and substituted service of their claim documents under rule 116 of the Uniform Civil Procedure Rules 1999 (Qld). The court granted this application and ordered substituted service, which was subsequently effected. A default judgment was entered against the respondent for the appellant's failure to appear. The respondent then applied to set aside the orders, which was dismissed.

The court was required to determine two primary legal issues. First, whether the document for which substituted service was sought needed to be filed before an order under rule 116(1) UCPR could be made. Second, if the order for substituted service was a judicial order of a superior court, whether it remained valid until set aside. Additionally, the court needed to determine if the respondent's affidavit disclosed a prima facie defence to the appellant's claim.

In resolving these issues, the court found that the document for which substituted service was sought did not need to be filed before the order could be made. The court also held that the order for substituted service was a judicial order of a superior court, and thus, it remained valid until set aside. Regarding the respondent's affidavit, the court found that it did not disclose a prima facie defence as it contained legal conclusions without supporting evidence and did not swear to the truth and accuracy of an attached draft defence. Consequently, the appeal was allowed, the orders made on 17 May 2013 were set aside, and the application filed on 24 April 2013 was dismissed. The respondent was ordered to pay the costs of the application, the appeal, and the proceedings.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside orders made on 17 May 2013 in proceeding No 9104 of 2010.

3. The application filed 24 April 2013 in proceeding No 9104 of 2010 be dismissed.

4. The respondent pay the costs of and incidental to the application filed on 24 April 2013 in proceeding No 7490 of 2010, the costs of and incidental to the application filed 24 April 2013 in proceeding No 9104 of 2010 and the costs of and incidental to the appeal to be assessed on the standard basis.

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.