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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1995] QCA 565
Decision Date: 19/12/1995

CaseChat Overview and Summary

The case of Pioneer Industries Pty Ltd v Baker involved an appeal against judgments entered in the District Court of Queensland. The appellant, Peter Douglas Baker, appealed against the judgments entered against him for the sums of $20,658.57 and $8,590.44, respectively. The appeal raised procedural issues, including the extension of time for service of the notice of appeal and the amendment of the notice of appeal to include additional grounds.

The legal issues before the court were whether the appellant could appeal against the judgments without attacking the order on which the judgments were based, and whether the appellant could amend the notice of appeal to include the additional grounds. The court considered authorities such as Hill Corcoran Constructions Pty Ltd v Navarro and Smith v Tabain, which supported the view that an appellant could challenge interlocutory orders made as a step in the proceedings leading up to the final judgment.

The court held that the appellant could appeal against the judgments without attacking the order on which the judgments were based, as it was appropriate to allow the amendment of the notice of appeal to include the additional grounds. The court also extended the time for service of the notice of appeal, considering the credible excuse for the initial failure to serve the notice and the lack of prejudice to the respondent.

The final orders were to amend the notice of appeal to include the judgments and additional grounds, and to make the costs of the application costs in the appeal.

Orders