Gallagher v Boylan

[2012] QCA 159

SUPREME COURT OF QUEENSLAND

CITATION:

Gallagher v Boylan [2012] QCA 159

PARTIES:

DONNA MARIE GALLAGHER
(applicant)
v
KYM BOYLAN
(respondent)

FILE NO/S:

Appeal No 4482 of 2011
SC No 7518 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application - Civil

ORIGINATING COURT:

Court of Appeal at Brisbane

DELIVERED ON:

15 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2012

JUDGES:

Muir and Fraser JJA, Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application refused with costs.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – JUDGMENTS AND ORDERS – OTHER MATTERS – where Court of Appeal had previously found in favour of respondent – where applicant applied under r 388 UCPR for orders of Court of Appeal to be set aside – where applicant contended that her senior counsel accidently omitted to draw the Court’s attention to parts of her amended statement of claim – where applicant contended that this omission by counsel enlivened Court’s power under r 388(2) UCPR to change the orders made – where the respondent contended that r 388 UCPR was not enlivened – whether the Court has the power to grant the application under r 388 UCPR – whether the Court should exercise its power to grant the application

Uniform Civil Procedure Rules 1999 (Qld), r 388

Atwood v Chichester (1878) 3 QBD 722, cited
Boylan v Gallagher[2011] QCA 240, related
Copping v ANZ McCaughan Ltd (1997) 67 SASR 525; [1997] SASC 5995, considered
Ex parte Britt [1987] 1 Qd R 221, considered
Gallagher v Boylan [2011] QSC 94, related
Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36, considered
L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1983) 151 CLR 590; [1982] HCA 59, cited
Ross Neilson Property Pty Ltd v Orchard Capital Investments Ltd [2011] QCA 49, considered
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446, considered

COUNSEL:

A J Greinke, with R Brandon, for the applicant
J McKenna SC, with A Pomerenke, for the respondent

SOLICITORS:

Morgan Conley for the applicant
Reichman Lawyers for the respondent

1. MUIR JA: I agree that the application should be refused with costs for the reasons given by Fraser JA.

1. FRASER JA: The applicant (Ms Gallagher) has applied under r 388 of the Uniform Civil Procedure Rules 1999 (“UCPR”) for orders that the orders of the Court made on 16 September 2011 in favour of the respondent (Ms Boylan), and the consequential costs orders made on 14 October 2011, be set aside and that it be ordered instead that Ms Boylan’s appeal be dismissed with costs or, alternatively, that the proceeding be remitted to the Trial Division to determine Ms Gallagher’s contentions in paragraphs 14 and 15 of the amended statement of claim.

The “slip rule”

1. Rule 388 is a procedural…