Goodhew v Trustee of the Federated Engine Drivers' & Firemen's Assoc

[1993] QCA 26

STATE REPORTING BUREAU

TRANSCRIPT OF PROCEEDINGS

(Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.)

[1993] QCA 026

COURT OF APPEAL

MACROSSAN CJ McPHERSON JA BYRNE J

CA No 165 of 1992

KENNETH WALLACE GOODHEW APPELLANT (Second

Defendant)

and

THE TRUSTEE OF THE FEDERATED
ENGINE DRIVERS’ AND FIREMEN’S
ASSOCIATION OF AUSTRALASIA,
QUEENSLAND BRANCH, UNION OF
EMPLOYEES and the FEDERATED
ENGINE DRIVERS’ AND FIREMEN’S
ASSOCIATION OF AUSTRALASIA,
QUEENSLAND BRANCH, UNION OF
EMPLOYEES RESPONDENT (Plaintiff)
BRISBANE
..DATE 15/02/93
THE CHIEF JUSTICE: This is an appeal against an order made by

a District Court Judge whom I shall call the second District Court Judge in which he ordered that the present appellant have final judgment entered against him for damages to be assessed and that he pay the respondents’ costs of and incidental to the application and of the action to be taxed.

The application which had been made to that second District Court Judge was based on a non-compliance by the appellant with orders which had previously been made by another District Court Judge. Those orders were made in proceedings which had been commenced by the respondent seeking orders against a certain trust and the appellant who was connected with that trust, and the orders were sought arising out of, as was alleged, dealings by the appellant with property of the respondent.

It is not necessary to go into the facts in any great length at this stage, but the plaint sets out the necessary matters on which the respondents’ claim against the appellant were made. This drew from the appellant an entry of appearance and defence in those proceedings in the District Court. That pleading of the appellant consisted of non-admissions or denials and nothing more specific, except that in one respect in relation to the claim of the respondent, the appellant alleges that he had paid two sums which total $52,000 to the respondent, at its office at 424 Upper Roma Street, Brisbane, and that such sums were accepted in full and final satisfaction of any claim that the respondent may have had against the appellant, which claims were denied.

Attempts were made by the respondent to procure from the appellant, who was unrepresented below but is now represented before us, an appropriate affidavit of discovery and also certain particulars. Some discovery was offered but in the judgment of the first District Court Judge, it was not sufficient. Some information was stated in response to the respondents’ request for particulars but again, in the opinion of the Judge who considered the matter, it was not sufficient.

What we have to note in the course of proceedings before the two District Court Judges was that orders were made for further discovery and for particulars and they were simply not complied with.

No appeal was ever lodged against the order of the first District Court Judge. Although an appeal is brought against the order of the second District Court Judge, no request was made, for example, for extension of time to appeal against the first District Court Judge’s order. The simple situation with which we are presented is that an order for discovery and particulars was made against the appellant and he has simply failed to comply with it, and in effect, by his appeal to this Court, he asks to be excused from compliance although the orders of the first District Court Judge remain in place for that reason, unchallenged.

The second District Court Judge made the order he did, entering final judgment for damages to be assessed with costs, presumably under - or principally under Rule 103 of the District Court Rules, and perhaps under some other sources of power in addition.

Rule 103 of the District Court Rules specifically empowers that Court or a Judge of that Court to order final judgment when particulars have been ordered and the request for particulars has not been complied with. It might be worth mentioning that a further provision of Rule 103 provides that any judgment entered under that Rule may be set aside or varied by the Court or a Judge within seven days from such entry.

No such action was taken here. The only action which subsequently occurred is that an appeal has been lodged to this Court.

In my opinion the order which was made by the second District Court Judge was made within his jurisdiction and he was justified in taking the attitude and making the order which he did because of the appellant’s failure to comply with the previous order which remained in place and was just not being complied with by the appellant who had indicated that he was not going to make, in effect, any further compliance with that order.

I think it is probably worth adding that the respondent had offered what might fairly be called some assistance tot he unrepresented appellant - had coached the unrepresented appellant even as to the form of an appropriate reply to its requests for particulars and for discovery, but to no avail. In my opinion this Court should not interfere with an order made when it was so manifestly within the discretion of the Judge who had to consider the matter and I would dismiss the appeal.

McPHERSON JA: I agree. Whether or not the order under appeal should have been made was a matter within the discretion of the second District Court Judge acting under the provisions of Rule 103 of the District Court Rules. The District Court Judge in question exercised his discretion in favour of the plaintiff and against this defendant, who now appeals.

It was urged on behalf of the appellant that the remedy so afforded was extreme, but it is a form of relief that is expressly contemplated by the rule in circumstances like these; and, as has been pointed out by the Chief Justice, r 103(c) goes so far as to provide a specific right in a person against whom the order is made to apply within seven days to have it set aside.

Far from taking any such step as that, the appellant in this instance responded to service of the order upon him by writing a letter, which is in the record, to solicitors for the plaintiff, saying, “I have no intention of wasting any more of the Court’s time or mine for that matter by filing another affidavit of documents and further and better particulars, when I cannot expand on them any better.”

Whatever might be said about the case in respect of an affidavit of documents, there was no reason at all why the order of particulars should not have been complied with. The appellant is, in that respect, the author of his own misfortune in insisting, in the letter that he wrote, that there was nothing he could do and, in fact, in doing nothing thereafter.

I would, therefore, as I’ve said, dismiss the appeal.

BYRNE J: I agree with the reasons of the Chief Justice and Mr Justice McPherson and wish to add only a few remarks. In my opinion the conduct of the appellant to which reference has been made by my brother McPherson, evinced an unwillingness to comply with the order for particulars. For that reason, and for the others adverted to by the Chief Justice and Mr Justice McPherson, the order appealed from was comfortably within the Judge’s discretion.

It was submitted for the appellant that no prejudice was likely to be sustained by the respondent as a result of the non-compliance with the requests for discovery and particulars. I cannot agree. It is sufficient for present purposes to refer to the particulars. They sought information with respect to the defence of accord and satisfaction which was obviously material to that defence and which clearly enough was necessary to enable the respondent to prepare for trial.

I agree in the orders proposed.

MR BOCCABELLA: I ask for costs, Your Honours.

THE CHIEF JUSTICE: Yes. Mr Hughes, can you say anything to that?

MR HUGHES: No.

THE CHIEF JUSTICE: The appeal then is dismissed with costs to
be taxed.
BRISBANE

... DATE

JUDGMENT