Johns v Cosgrove

Case [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 –…

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Johns v Cosgrove [2000] QCA 157
Case
[2000] QCA 157
Decision Date

CaseChat Overview and Summary

The case of Johns v Cosgrove involves a dispute between the plaintiff, Johns, and the defendants, Cosgrove and another party. The plaintiff brought an action against the defendants for damages resulting from a road accident. The case was initially heard in the Supreme Court of Queensland, where a judgment was entered against the defendants. The defendants subsequently appealed to the Court of Appeal, arguing that the judgment against them was obtained through fraud and misrepresentation by the plaintiff. The Court of Appeal referred the matter back to the Trial Division to determine whether fraud was indeed proven.

The legal issues before the Court of Appeal were whether the Trial Division judge correctly found that fraud had been committed, and if so, whether the Court of Appeal should set aside the judgment against the defendants. The Court of Appeal considered the evidence presented, including whether the evidence could corroborate the allegations of fraud, and whether the trial judge erred in using certain evidence. The Court also examined the power of the Court of Appeal to set aside the judgment and whether there was discretion to refuse to set aside a judgment obtained by fraud.

The Court of Appeal found that the Trial Division judge had erred in concluding that fraud was proven. The Court held that the evidence did not support the findings of fraud and that the Trial Division judge had misapplied the law in using certain evidence. Consequently, the Court of Appeal set aside the judgment against the defendants and directed a new trial. The plaintiff was ordered to pay the defendants' costs for the proceedings before Derrington J and the appeal. The Court concluded that the findings of fraud were not supported by the evidence and that the judgment against the defendants should be set aside, leading to a new trial to determine the merits of the case.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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