Pioneer Industries Pty Ltd v Baker

[1995] QCA 565

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 58 of 1995.

Brisbane

[Baker v. Pioneer Industries P/L]

BETWEEN:

PETER DOUGLAS BAKER

(Third Defendant) Applicant/Appellant

AND:

PIONEER INDUSTRIES PTY LTD

(Plaintiff) Respondent

___________________________________________________________________

Fitzgerald P.
Pincus J.A.

Dowsett J.

___________________________________________________________________

Judgment delivered 19/12/1995

Separate reasons of each member of the Court; Fitzgerald P. dissenting in part.
___________________________________________________________________

1.         AMEND THE NOTICE OF APPEAL -

(A)	BY REPLACING PARAGRAPH 1 BY "THE APPELLANT APPEALS AGAINST THE JUDGMENTS OF THE DISTRICT COURT ENTERED PURSUANT TO THE ORDERS OF HIS HONOUR JUDGE BOULTON DATED 10 MARCH 1995, INSOFAR AS JUDGMENT WAS ENTERED AGAINST HIM ON 14 MARCH 1995 IN THE SUM OF $20,658.57 AND INSOFAR AS JUDGMENT WAS ENTERED AGAINST HIM ON 31 MAY 1995 IN THE SUM OF $8,590.44.
(B)	BY ADDING AS GROUND 2A THE GROUNDS SO DESIGNATED IN THE NOTICE OF MOTION FILED IN THIS COURT ON 10 OCTOBER 1995.

2.         THE COSTS OF THIS APPLICATION SHALL BE COSTS IN THE APPEAL.

___________________________________________________________________

CATCHWORDS: CIVIL PROCEDURE - appeal - application for extension of time for service of notice of appeal - credible excuse for initial failure to serve notice but subsequent delay - respondent’s actions such that appeal on foot - no prejudice to respondents. CIVIL PROCEDURE - APPEAL - amendment of notice of appeal - whether appeal lies without leave from an order of the District Court authorising a plaintiff to sign a judgment under r. 153 - whether can appeal against judgment without attacking the order on which the judgment is based - right of appellant against a final judgment to attack interlocutory orders "made as a step in the proceedings leading up to the final judgment". S. 92 District Courts Act 1967

R. 153 District Courts Rules
Hill Corcoran Constructions Pty Ltd v. Navarro (Court of
Appeal, Appl No. 94 of 1991, 6 March 1992, unreported)

Smith v. Tabain (1987) 10 N.S.W.L.R. 562

Counsel:	Mr J Kimmins for the applicant/appellant. Mr P Hastie for the respondent.
Solicitors:	McCrea Jones as town agents for John Burrell for the applicant/appellant. Sly & Weigall, Cannan & Peterson for the respondent.

Hearing date:25 October 1995.

IN THE COURT OF APPEAL	[1995] QCA 565
SUPREME COURT OF QUEENSLAND	Appeal No.58 of 1995
Brisbane
Before	Fitzgerald P.

Pincus J.A. Dowsett J.

[Baker v. Pioneer Industries]

BETWEEN:

PETER DOUGLAS BAKER

(Third Defendant) Appellant

AND:

PIONEER INDUSTRIES PTY LTD

(Plaintiff) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 19/12/1995

The circumstances giving rise to this appeal are set out in the reasons for judgment of

Pincus J.A. and, subject to what follows, I agree with what his Honour has stated.

If a defendant against whom judgment was entered consequent upon an order authorising

the plaintiff to sign judgment could not challenge the order on an appeal against the

judgment, leave to appeal against the order could, in my opinion, be given pursuant to sub-

s. 92(2) of the District Courts Act. However, the Court has previously taken the view that

the order can be challenged in an appeal against the judgment, so that leave to appeal

against the order is unnecessary. That course is supported by the decisions referred to
by Pincus J.A., is convenient and just and, in my opinion, should be followed.

Even so, in the present case, the defendant (appellant) required the Court’s indulgence

because of his failure to comply with the rules.

An order authorising the plaintiff (respondent) to sign judgment, in the sum of $20,658.57,

was made on 10 March 1995. In addition, it was ordered that the plaintiff be authorised to

sign judgment for a further $8,590.44 if that sum was not paid into court within 21 days.

On 14 March 1995, judgment was entered against the defendant in the sum of $20,658.57.

On 7 April 1995, a notice of appeal was filed in the registry. In this Court, both parties

proceeded on the basis that the notice of appeal related to the order authorising judgment

to be signed, not the judgment.

The notice of appeal was not served. However, the plaintiff’s solicitors became aware of

the appeal because of a communication from the Senior Deputy Registrar (Appeals), and,

on 4 May 1995, the plaintiff’s solicitors wrote to the solicitors on the record for the

defendant informing them that they had not been served.

The notice of appeal had still not been served when, on 31 May 1995, a further judgment

was entered against the defendant in the sum of $8,590.44. No further notice of appeal

was filed.

The notice of appeal was provided to the plaintiff’s solicitors on 2 June 1995, which the

parties have accepted was the date of service.
On 5 June 1995, the plaintiff’s solicitors requested the defendant’s written outline of

argument with respect to the appeal, but the defendant again delayed and the outline was

not provided until 18 July.

By then, on 12 July, the defendant had been made bankrupt on the plaintiff’s petition.

However, the sequestration order was set aside on 11 August 1995 by a Judge of the

Federal Court of Australia who was not satisfied that the defendant had been served with

the petition.

Nothing further occurred until 5 September, when the defendant indicated that it proposed

to amend its notice of appeal and outline of argument.

On 8 September, the defendant’s solicitors received the plaintiff’s outline of argument and

a letter from its solicitors requiring the amended documentation by 15 September. A

further request was made on 28 September, but the additional submissions which the

defendant seeks to make did not emerge until 18 October, when his written outline of

argument with respect to the present application was filed and, presumably, served.

In his reasons for judgment, Pincus J.A. remarks on the undesirability of considering the

merits of the appeal. Nonetheless, in my opinion, it is appropriate to keep in mind that the

appeal is from orders made on a summary judgment application more than eight months

ago and that time and money have been wasted through the defendant’s sole fault.

However, I am not persuaded that the appeal is so unmeritorious that the defendant should
be precluded from proceeding.
In the circumstances, I agree with the orders proposed by Pincus J.A., except in two

respects. In my opinion, the defendant should be required to pay all costs of and incidental

to the appeal to this point, including the costs of the present application. Further, I would

make it a condition of the orders in favour of the defendant that he pay $5,000.00 into court

within 21 days as security for the costs of the appeal. In the event that he does not do so,

I would refuse the orders and dismiss the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 58 of 1995.

Brisbane

Before Fitzgerald P.
Pincus J.A.
Dowsett J.

[Baker v. Pioneer Industries P/L}

BETWEEN:

PETER DOUGLAS BAKER

(Third Defendant) Applicant/Appellant

AND:

PIONEER INDUSTRIES PTY LTD

(Plaintiff) Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 19/12/1995

On 7 April 1995 the applicant Peter Douglas Baker filed in this Court a notice of

appeal from a judgment given in the District Court on 10 March 1995, described in the

notice as one "wherein it was adjudged that the plaintiff recover against the third defendant

the sum of $20,658.57". The applicant in the proceedings presently being considered is

the third defendant referred to in the notice of appeal and the respondent is the plaintiff.

The applicant seeks from this Court orders extending the time for service of the notice of

appeal and amending the notice of appeal; as an alternative to one of the proposed

amendments, the applicant asks for leave to appeal. The matter involves some procedural

complexities.

The material discloses that there have been a number of hearings relating to the

respondent’s attempts to recover a debt said to be due by the applicant under a guarantee,

in the District Court and in the Federal Court; the dispute has rather a complicated history.

For present purposes, the only part of that history which needs discussion is that which is

relevant to the application for an order extending time for service of the notice of appeal.

On 10 March 1995, Boulton DCJ handed down reasons for judgment in an

application for summary judgment. At the conclusion of those reasons, which appear to be

careful and detailed, Boulton DCJ indicated that there would be leave to defend in certain

respects and gave judgment as to other claims. His Honour said that he would hear further

submissions relating to the form of order and costs. The order entered - the date on which

the actual entry occurred is said to be 14 March 1995 - included as order 4, that the plaintiff

(respondent in the present proceedings) "be at liberty to sign judgment against [the

applicant] forthwith in the sum of" $20,658.57. Rule 153 of the District Courts Rules

contemplates an order "authorising the plaintiff to sign judgment . . .", which assumes that

the judgment itself will follow the giving of this authority. The parties have proceeded on the

basis that it is the first type of order, not the judgment signed in consequence of it, which

is, as the notice of appeal stands, attacked in the appeal.

The material discloses that the solicitor who had the conduct of the matter on behalf

of the applicant was absent from his office (his wife having recently died) at the time when

the notice of appeal was filed, on 7 April, and, presumably because of his absence, service

of the notice on the respondent was overlooked. On 24 April this Court advised the parties’

solicitors of the timetable applicable to interlocutory steps in the appeal, the first being that the appellant’s outline was due on 21 April 1995. On 4 May the respondent’s solicitors

informed the applicant’s solicitors that they had received the timetable and said that they

had not been served with the notice of appeal. On 5 May the applicant’s solicitors replied

by a letter which purported to enclose the notice of appeal, but on 19 May the respondent’s

solicitors informed the applicant’s solicitors that the notice had not been enclosed. They

wrote again to the same effect on 30 May and the notice was sent on 2 June 1995.

It is unclear on the material whether the notice of appeal was served on 2 June 1995

or on 5 May 1995, but it seems right to proceed on the basis that it was not served until the

later date. Counsel for the respondent, Mr Hastie, has argued that the delay in serving the

notice of appeal should not be excused by granting an extension of time. In support of the

respondent’s contention, there is the fact that even after the failure to serve the notice of

appeal in due time came to the attention of the applicant’s solicitors there was, it appears,

both dilatoriness and inefficiency in remedying that lapse. On the other hand, a credible

excuse for the initial failure to serve the notice has been given and it seems clear that the

respondent became aware, by correspondence from this Court, of the institution of the

appeal, on or shortly after 24 April. I note also that in subsequent correspondence, even

before receiving a copy of the notice of appeal, the respondent’s solicitors treated the

appeal as being on foot, to the extent of complaining of the applicant’s failure to deliver his

outline in accordance with the timetable laid down by the Court, and requesting that the

outline be delivered. Further, there is nothing in the material to suggest that the delay in

service of the notice has prejudiced the respondent’s position in any respect. In these

circumstances, it is my opinion that the Court should extend the time for service of the

notice, as the applicant submits.

The remaining questions raised by the application have to do with amendment of

the notice of appeal and, depending on the Court’s view on those questions, leave to

appeal.

The applicant asks leave to amend the notice of appeal, in the first place, by adding

the following:

"The appellant appeals against the whole of the judgment entered against him on 14 March, 1995 in the sum of $20,658.57 and the whole of the judgment entered against him on 31 May, 1995 in the sum of $8,590.44".

It should be noticed that this application to amend involves two separate questions;

the attempt to bring into the appeal the question of the judgment for $8,590.44 raises

considerations not applicable to the other part of the amendment; in its present form the

notice of appeal perhaps attacks only the judgment relating to $20,658.57. It is convenient

to consider first the application for leave to appeal relating to the larger sum.

The main point of the application is that there is authority for the view that no appeal

lies, without leave, from an order of the District Court authorising a plaintiff to sign a

judgment under r. 153: Doyle v. James (Court of Appeal, Appl. No. 69 of 1993,

13 September 1993, unreported). The correctness of that decision was not challenged

before us.

Under s. 92(1) of the District Courts Act 1967, there would be an appeal as of right

if judgment for the sum in question here had been entered after a trial. The argument for

the respondent, if correct, places the entry of a judgment under r. 153 of the District Court

Rules - i.e. a judgment on the basis that there is no defence on the merits - in a protected position. It is contended that the order authorising entry of the judgment cannot be the

subject of an appeal without leave (requiring "an important question of law or justice") and

that the judgment itself cannot be appealed against without attacking the order authorising

the entry of judgment, because to set aside the judgment itself would impugn the earlier

order. Mr Hastie suggested that for this Court to reject these contentions would be to

permit the applicant to evade the intention of s. 92 of the District Courts Act 1967. If Mr

Hastie is right the position created appears to be anomalous; there is no particular reason

why a judgment entered pursuant to r. 153 should be less open to attack than one entered

after trial, nor does it seem right, unless no other view is open, to read the statute as

achieving the result that final judgments under s. 153 are ordinarily immune from challenge.

Before this Court gave its decision in Doyle v. James, it had considered the

problem now raised, in Hill Corcoran Constructions Pty Ltd v. Navarro (Court of Appeal,

Appl. No. 44 of 1991, 6 March 1992, unreported,). That was an attack, purporting to be by

way of appeal, on a r. 153 order; the appeal was attacked as incompetent on the ground

that an order made under r. 153 is not final. The Court did not find it necessary to

determine that point, but remarked:

"The appellants’ difficulty in this respect, if any, may be overcome by granting them leave to amend the notice of appeal so as to include an appeal against the judgment entered".

Leave to amend was granted accordingly and the same course was followed in a reported

case, C & P Trading Pty Ltd v. Roladuct Spiral Tubing Pty Ltd [1994] 2 Qd.R. 247 at 248.

Mr Hastie argued, in effect, that these decisions are incorrect, relying principally upon a

remark made during the course of argument in Cox Bros. (Aust.) Ltd v. Cox (1934) 50

C.L.R. 314 at 315, 316. The remark he referred to raised questions, without suggesting

an answer to them.

It is my view that the circumstance that a judgment granted in consequence of an

order made in favour of a plaintiff under r. 153 is attacked by way of appeal, without there

having been an attack upon the order on which the judgment was founded, is no answer to

such an appeal. In Smith v. Tabain (1987) 10 N.S.W.L.R. 562 the New South Wales Court

of Appeal had occasion to consider the scope of the principle that an appellant may, in an

appeal against a final judgment, challenge any interlocutory order made in the proceedings

leading up to that judgment. That concerned an action for damages for personal injury in

which the question of liability had been ordered to be tried prior to quantum. That was

done and a verdict was found for the plaintiff; subsequently, the damages were fixed in a

separate hearing and judgment entered for the sum assessed. A notice of appeal was

filed against the second judgment, raising grounds relevant to both liability and damages.

The Court held that the notice of appeal might properly challenge both the decision on

liability and that on damages. Not all of the reasons given for that view are applicable in

the present case; the result depended in part on peculiarities of the statute and rules

governing the matter. But the outcome is consistent with the argument for the applicant

here and Mahoney JA, at p. 566, based his decision on reasoning which assists the

present applicant:

" On an appeal against a final judgment it has traditionally been open to an appellant to raise, provided he does it properly in accordance with proper procedures, the correctness of any interlocutory or other order which has been made as a step in the proceedings leading up to the final judgment: see Crowley v. Glissan (1905) 2 CLR 402; cf. Bunning v. Cross (1978) 141 CLR 54 at 64 and 82. The only issue in this part of the argument is whether an interlocutory judgment holding the defendant liable in damages in what otherwise would have been a jury proceeding at common law is for this purpose an interlocutory or other order . . .

it seems to me that as a matter of principle such an interlocutory judgment is an interlocutory order for the purposes of the principle in question . . . ". This passage was referred to with approval in National Employers Mutual General

Insurance Association Ltd v. Manufacturers Mutual Insurance Ltd (1989) 17 N.S.W.L.R. 223

at 231, in support of a decision on a point different from that determined in Smith v. Tabain,

namely whether, an issue of law in a case having been tried separately, there was a right

of appeal against a decision on that separate point.

In my view the right which Mahoney JA describes as being traditionally open to an

appellant against a final judgment, namely to attack interlocutory orders "made as a step

in the proceedings leading up to the final judgment", is not confined to attacks on orders

of a procedural kind; it enables the applicant, by appealing against the District Court’s final

judgment, to raise the issue of the correctness of the interlocutory order under r. 153, on

which the final judgment was based.

In the present case it is not as clear as it might be whether the notice of appeal is

intended to attack the order made by Boulton DCJ on 10 March 1995 or the subsequent

entry of judgment; if on its proper construction the notice of appeal attacks the latter then

an amendment is unnecessary. I should also note that it is not known when, or for that

matter whether, judgment was actually signed in pursuance of the authority to do so given,

it is assumed, by the words "liberty to sign judgment . . . ". The parties have assumed that

there was a final judgment for $20,658.57 and I accept that assumption, not altogether

confidently. In view of the ambiguity of the notice and the basis on which the matter was

argued before us, namely that the notice of appeal was intended to attack the order made

by Boulton DCJ under r. 153, it seems desirable to amend the notice, to make clear that it is the final judgment which was or at least should have been signed, and not the

interlocutory judgment, which is in issue. But as has been mentioned, the amendment

sought is designed to raise a question, also, as to a judgment said to have been entered

on 31 May 1995 in the sum of $8,590.44. On 10 March, after discussing that aspect of the

claim, the judge ordered that if the sum of $8,590.44 was not paid into court within 21 days

the plaintiff should "thereupon be at liberty to sign judgment for that sum as well". An order

to that effect was incorporated in the formal judgment entered in consequence of the

hearing of 10 March 1995, but judgment was not entered for the sum of $8,590.44 until 31

May 1995.

There appears to be a reference to this issue in ground 2(d) of the notice of appeal

and it may be that the parties have treated it as being raised by the notice. On the hearing

of this application, it was not suggested that the fact that the judgment relating to a sum of

$8,590.44 was entered later than that relating to the sum of $20,658.57 was a ground for

differentiating between the treatment of the two issues. On the whole, it seems appropriate

to allow an amendment so as to make clear that both the sums mentioned are in issue.

The remaining questions have to do with the merits of proposed additional grounds

of appeal. It is in my view a poor use of the Court’s time to hear detailed argument on the

preliminary question as to whether a ground, if allowed to be raised, would give rise to

serious argument; if the ground is added, then the whole argument has to be gone through

again, when the appeal is heard. The only one of the proposed additional grounds which

seems to me plainly to give rise to no substantial basis of appeal is 2B, "His Honour failed

to authorise the plaintiff to sign judgment against the appellant". This seems to have no

substance whatever. The other grounds should be added, without deciding now whether
or not they have any substantial chance of success.

On the view I take the application, which was opposed, should succeed except in

the minor respect just mentioned. Nevertheless, it does not seem fair to make the

respondent pay the costs of the proceedings before us; they were made necessary, as to

some of the matters discussed, by mistakes on the applicant’s side. I would make the

costs costs in the appeal.

The orders I propose, then, are -

1.         Amend the notice of appeal -

(a) by replacing paragraph 1 by "The appellant appeals against the judgments

of the District Court entered pursuant to the orders of his Honour Judge

Boulton dated 10 March 1995, insofar as judgment was entered against him

on 14 March 1995 in the sum of $20,658.57 and insofar as judgment was

entered against him on 31 May 1995 in the sum of $8,590.44.

(b)       by adding as ground 2A the grounds so designated in the notice of motion

filed in this Court on 10 October 1995.

2.         The costs of this application shall be costs in the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 58 of 1995

Brisbane

Before Fitzgerald P
Pincus JA
Dowsett J

[Baker v. Pioneer Industries]

BETWEEN:

PETER DOUGLAS BAKER

(Third Defendant) Appellant

AND:

PIONEER INDUSTRIES PTY LIMITED

(Plaintiff) Respondent

REASONS FOR JUDGMENT - DOWSETT J.

Judgment delivered 19/12/1995

I agree with the substantive orders proposed by Pincus JA and with his Honour's

reasons. As to the question of costs, the matter is finely balanced as between the order

proposed by the President and that proposed by Pincus JA. I will briefly state my

reasons for preferring the latter.

There is no doubt that the present applicant, by his legal advisers or personally,

has been guilty of considerable tardiness in the prosecution of his appeal, but such

tardiness was contributed to by most unfortunate personal circumstances affecting his

solicitor. The matter has been further complicated by the fact that notwithstanding the

appeal, a petition in bankruptcy was served upon the applicant on 23 June, 1995. On

12 June, 1995 a bankruptcy order was made against the applicant's estate but was

subsequently set aside on 11 August last by order of Kiefel J upon the basis that the

applicant had not been served with notice of an adjourned date of hearing for the petition. The date specified in the petition had passed by the time that the petition was

served upon him. Her Honour also considered that in any event, "the fact of the

pendency of the appeal at the time of hearing of the petition would, if it had been

known to the Registrar, itself have been a sufficient basis not to order sequestration

then and there ...".

No doubt, difficulties created by the sequestration order and the need to have

it set aside have involved the applicant in considerable expense and have played some

part in the tardiness to which I have referred. Further, in the bankruptcy proceedings

(and before us) the respondent has asserted that the appeal was incompetent because

no appeal lay as of right. This probably prompted the present application. To some

extent, the prosecution of the appeal has therefore also been delayed by this largely

unmeritorious assertion. Thus the applicant is not alone responsible for the

unfortunate history of the appeal.

In those circumstances, the interests of justice will best be served by allowing the

costs of this application to follow the event in the appeal. I therefore concur in the

order as to costs proposed by Pincus JA.