Goldsea Pty Ltd v Oayda

[1992] QCA 309

[1992] QCA 309

COURT OF APPEAL

MACROSSAN CJ

THOMAS J
AMBROSE J

Appln No 177 of 1992

GOLDSEA PTY LTD  Plaintiff/Respondent

v

GRANT OAYDA  Applicant

and

ROBERT OAYDA & ANOR  Applicant

BRISBANE

DATE 21/08/92

JUDGMENT

210892 D.1

THE CHIEF JUSTICE: This is an application under section 92.2 of the District Courts Act which regulates the conditions upon which leave may be granted to appeal from judgments of the District Court.  In the category with which we are concerned, that is the category other than final judgment specified in rule 92.1, there must be shown some important question of law or justice before this Court is authorised to grant leave.

The decision which was given, and in respect of which leave to appeal is sought, was a decision dismissing an application to set aside a judgment of an interlocutory kind which had been earlier entered.  The facts were that in May 1991 a plaint was issued making a pecuniary claim and it was served also in May.

From the material, it seems that a Judge of the District Court in August 1991, gave liberty to enter final judgment for damages to be assessed and then in November 1991, damages were assessed by another Judge of the District Court in a sum of just over $112,000 and costs.

The two defendants who are asking for leave before us today, and against whom judgment was given, applied to set aside that judgment, but did not do so until July of this year.  Before the District Court Judge who heard the application to set aside the judgment, it was conceded on behalf of the present applicants, that the judgment earlier entered had been regularly entered.  The Judge gave brief reasons for his refusal to set aside that earlier judgment.  It is apparent from those reasons that he discerned that he had a discretion to exercise.

Reading his reasons it is clear to me that he regarded his task as involving a consideration of the merits that were involved, that is the merit so far as the applicant/defendants wish to air them.  He also looked at the delays which had occurred. He declared that there had been a failure to explain the non-entry of appearance and it appears also that the present applicants instructed their solicitors only after the default judgment and assessment of November 1991 had been made.

In any event, in refusing to set aside the judgment the District Court Judge made it plain that he was coming to his decision as a matter of exercise of his discretion, so he dismissed the application with costs ordering that those costs be taxed on a solicitor and client basis. A number of arguments were raised before us and in the written material filed in support of the argument. Fundamentally, the applicants wish to show some errors of law. The problem that confronts them of course is that it is not just an error of law simpliciter which would justify the granting of leave but only errors which involve questions of the kind described as important in section 92.2 of the District Courts Act.

The District Court Judge, if he came to an erroneous conclusion, would have erred.  I do not, for myself, say that he did.  I do not detect any insufficient attention to the need to examine merits in his judgment but even if he did that would have been an error in the discretion which he was exercising.  In short, all that I can discern in the present application is a submission that the Judge was erroneous in his conclusion on a number of grounds that the judgment should not be set aside. I do not see anything here involving an important question of law or justice and I would refuse the application for leave.

THOMAS J:  I agree.

AMBROSE J:  I agree.

THE CHIEF JUSTICE:  The application is refused.

...

THE CHIEF JUSTICE:  The respondent should have an order for its costs on the ordinary basis.

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