Johns v Cosgrove

[2000] QCA 157

SUPREME COURT OF QUEENSLAND

CITATION:

Cosgrove & Anor v Johns [2000] QCA 157

PARTIES:

JENNIFER MARGARET COSGROVE
(first defendant/first appellant)
CHEVRON QUEENSLAND LIMITED
(second defendant/second appellant)
v
DALLAS MIDGLEY JOHNS
(plaintiff/respondent)

FILE NO/S:

Appeal No 453 of 1998
SC No 599 of 1993

DIVISION:

Court of Appeal

PROCEEDING:

Personal Injury – Liability and Quantum (Leave granted)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 May 2000

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2000

JUDGES:

de Jersey CJ, McMurdo P and Thomas JA. 
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal allowed; judgment of Derrington J of 12 December 1997 set aside; direction that there be a new trial of the action; respondent/plaintiff to pay the appellants' costs of and incidental to the proceedings before Derrington J and of and incidental to this appeal, including the proceedings before Fryberg J to be assessed

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT – WHERE FRAUD, MISREPRESENTATION OR SUPPRESSION OF MATERIAL FACTS – setting aside judgment for fraud – reference by Court of Appeal to Trial Division for finding whether fraud proved – alleged errors by trial division judge in making findings – approach of Court of Appeal to acceptance of such findings and to whether fraud should be found – consideration of power under s 68(3) of Supreme Court of Queensland Act 1991 – powers of Court of Appeal on remitter – whether findings of fact by trial division should be accepted in whole or in part – whether judgment against the second defendant tainted by fraud in judgment against the first defendant - whether discretion exists to refuse to set aside judgment obtained by fraud – exercise of discretion

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – FRESH EVIDENCE – PARTICULAR CASES

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – FURTHER EVIDENCE

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – ENTRY OF JUDGMENT OR NON-SUIT OR GRANT OF NEW TRIAL

EVIDENCE – ADMISSIBILITY AND RELEVANCY – SIMILAR FACTS – TO PROVE FACT IN ISSUE – IN GENERAL
EVIDENCE – WITNESSES – CORROBORATION – INDEPENDENT CIRCUMSTANTIAL EVIDENCE 

EVIDENCE – WITNESSES – CORROBORATION – ADMISSIONS – CONDUCT – OTHER CONDUCT

EVIDENCE – WITNESSES – CORROBORATION – WHAT CONSTITUTES - whether corroboration of statement of deceased person required – whether evidence capable of implicating plaintiff in fraud – reasonable evidence of agreement between plaintiff and witness – whether evidence of witness' expectation of money from the plaintiff corroborates allegation of fraud – conduct of other persons supporting inference of fraudulent agreement – evidence of lies by witness not corroborating allegation of fraud – effect of legal error in use of evidence of lies by witness

TORT – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE –…