Sciffer, Sciffer and Sciffer v Reprographics Pty Ltd
[1992] QCA 362
•26/10/1992
[1992] QCA 362
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
No. 193 of 1982
BETWEEN:
KAREN GAIL SCIFFER on her own
behalf and WADE JUSTIN SCIFFER
and NATHAN TRENT SCIFFER (by theirnext friend KAREN GAIL SCIFFER
(Appellants) Plaintiffs
AND:
REPROGRAPHICS PTY. LTD.
First Defendants
AND:
TELEDYNE CONTINENTAL MOTORS
Second Defendants
AND:
CESSNA AIRCRAFT CORPORATION
(Respondent) Third Defendant No. 194 of 1982
BETWEEN:
DIANE EVELYN THOMSON on her own
behalf and NICOLE YASMIN THOMSON
and SIMONE YVETTE THOMSON (by theirnext friend DIANE EVELYN THOMSON
(Appellants) Plaintiffs
AND:
REPROGRAPHICS PTY. LTD.
First Defendants
AND:
TELEDYNE CONTINENTAL MOTORS
Second Defendants
AND:
CESSNA AIRCRAFT CORPORATION
(Respondent) Third Defendant
JUDGMENT OF THE COURT
Delivered the 26th day of October 1992.
Thomson v. Reprographics
On 25 January 1982, Diane Evelyn Thomson on her own behalf and on behalf of her dependent children, sued Reprographics Pty. Ltd. for damages for negligence and/or breach of statutory duty. It is common ground that the claim arose out of an aircraft accident that took place on 5 January 1982.
On 24 February 1984, Master Weld ordered that Cessna
Aircraft Corporation of Pownee, Witchita, United States of
America and another American Corporation be joined as
defendants. The Master's order was entered on 6 March 1984,
but no further action was taken. The limitation period
prescribed by the Limitations of Actions Act 1974
(Queensland) expired before the writ was amended to add
Cessna as a defendant and Cessna has still not been served
with an amended writ although correspondence from Cessna's
Brisbane solicitors in 1986 nominated an agent in the United
States who would accept service.
By a letter dated 8 September 1986, something more than 18 months after the limitation period had expired, the appellants' solicitors wrote to Cessna in Witchita in the following terms:
"Re Supreme Court Writ No. 194 of 1982
D.E. Thomson and Ors. v. Cessna Aircraft Co.
We have received instructions to act for the Plaintiffs in this matter. Your Queensland Agents, Messrs. Chambers McNab Tully and Wilson, have advised that whilst they do not have instructions to accept service on your behalf, that Cessna Aircraft Co. is agreeable to service being effected on it by forwarding a copy of the relevant process to yourself as the company's agent for service of process. We are accordingly enclosing a copy of the original sealed writ herein and also a copy of the order that was made by Master Weld on 24 February 1984. Would you please acknowledge of the enclosed documents in reply."
On 25 September 1986, Cessna's Brisbane solicitors pointed out that the writ which had been forwarded to Cessna in America had not been amended in accordance with the order made on 24 February 1984 and requested that they be provided with a copy of the writ as amended.
On 10 October 1986, Senior Master Lee Q.C. (as his
Honour then was) ordered "without prejudice to the rights of
the parties to be added pursuant to Order 3 Rule 13 that the
time for compliance with the order of Master Weld on the
24th day of February 1984 be extended to 4.00 p.m. on the
13th day of October 1986".
As is apparent from the face of the order the appellants and the defendant originally named in the action were the only parties represented before the Master on that occasion.
The appellants appealed to the chamber judge on the before the chamber judge were the appellants and the defendants originally named in the action.
order which they had obtained from Senior Master Lee Q.C.
and Shepherdson J. allowed the appeal on 20 October 1986 and
ordered that the time for compliance with the order of
Master Weld of the 24th day of February 1984 be extended to
4.00 p.m. on the 27th day of October 1986 and that
proceedings against Cessna Aircraft Corporation be deemed to
have begun as from the 24th day of
However, the respondent had been named as a respondent to the notice of appeal brought from the decision of Senior Master Lee Q.C. to the chamber judge and Chambers McNab Tully and Wilson had been served with the notice of appeal on 15 October 1986. A covering letter indicated that the appellants' material in support of the appeal was to be shortly delivered to the respondent, and its solicitors were asked to make all possible efforts to obtain instructions as to Cessna's attitude to the question of limitation of action in these proceedings prior to the hearing of the appeal. It seems clear that there was some misunderstanding between the solicitors and, as a result, the appeal to the chamber judge effectively proceeded in the absence of Cessna. That was the view which he held, as he subsequently recorded, influenced in part by the circumstance that Cessna was not within the jurisdiction at the relevant time and could not effectively have been served.
These remarks were made by Shepherdson J. on 31 October 1986 when, on Cessna's application, he set aside that part of the order which he had made on 20 October 1986 deeming the proceedings against Cessna Aircraft Corporation to have commenced on the 24th day of February 1984. Cessna did not object before his Honour to being joined nor to the time for compliance with Master Weld's order being extended.
Shepherdson J. also gave the present appellants leave under O. 86 r. 8(5) to appeal to the Full Court from his decision of 31 October 1986 and they did so by notice of appeal which was not filed until 31 December 1986 and which has not been brought on for hearing until 6 October 1992.
Even at this late stage, there is considerable confusion as to what the parties seek. The appellants contend that they are entitled to maintain the (relevantly) ex parte orders which they obtained from Shepherdson J. on 20 October 1986 although it is by no means clear that that is sufficient for their purposes since, so far as can be ascertained, the time for compliance with the order of Master Weld of the 24th day of February 1984 expired on 27 October 1986. The writ was amended in accordance with the order of Senior Master Lee Q.C. on 13 October 1986 and the amendment would stand after the order of Shepherdson J. on 31 October 1986. However, as noted above the amended writ has not been served on Cessna so that a further extension of time would be necessary irrespective of whether the appellants are able to take advantage of the provision which the appellants seek to have reinserted, namely, that the proceedings against Cessna Aircraft Corporation be deemed to have begun as from 24 February 1984. On the other hand, the respondent simply seeks to maintain the present situation, but apparently on the footing that it has not yet decided whether the time for compliance with the order of Master Weld on 24 February 1984 should be further extended and/or whether a further order should be made which would effectively deprive Cessna Aircraft Corporation of the benefit of the Limitation of Actions Act. As to this, the submission for the respondent is that that matter has not yet been litigated because it did not have an opportunity to put relevant material before the court on 31 October 1986 although it seems clear from Shepherdson J.'s reasons that argument was addressed to him by counsel for Cessna on the authorities as to the right to plead the statute of limitations after joinder pursuant to O. 3 r. 13 in order to persuade his Honour that he had acted without regard to Cessna's rights when he made the deeming order on 20 October 1986.
Counsel for the appellants was of a similar view, namely, that if the appellants were unsuccessful in their submission to this Court that Shepherdson J. had no jurisdiction to review his own order the appeal was exhausted and it would require further application below to consider the effective date of the joinder. This stance is not entirely supported by the concluding remarks of Shepherdson J. who said that he gave leave to the appellants to appeal to have resolved the question of the effective date of joinder when a defendant, joined after the expiration of the limitation period, pleads the statute, as had been adverted to by Kelly S.P.J. in Lynch v. Keddell [1985] 2 Qd.R. 103. In the event, of course, the Full Court dealt with this point in Lynch v. Keddell (No. 2) [1990] 1 Qd.R. 10, which has in turn since been criticised in Bridge Shipping Pty. Ltd. v. Grand Shipping S.A. (1991) 173 C.L.R. 231. Nonetheless, it appears that counsel were not in a position to argue that matter before this Court and, strictly, if the appellants are unsuccessful here, until Cessna is served with the amended writ and pleads the statute there is no issue alive on that point before this Court. It appears from his Honour's reasons that Cessna did not object to being joined as a defendant nor that the time for compliance with Master Weld's order be extended.
The appellants argue that Shepherdson J. could only review his ex parte order made on 20 October 1986 if further material were placed before him which threw a new or different light upon the situation of the parties.
It is a well established general rule that no judge has
power to review or set aside any judgment after it has been
passed or entered or any order after it has been drawn up,
see Ivanhoe Gold Corporation Ltd. v. Symonds (1906) 4 (Pt.
1) C.L.R. 462 and Woods v. Sheriff of Queensland (1895) 6
Q.L.J. 163, and may only be varied on appeal (subject in
Queensland to the availability of O. 45 r. 1). This rule,
however, gives way when an order is made ex parte, see S.S.
Kaliba v. Wilson (1910) 11 C.L.R. 689 per Griffith C.J. at
p. 694; Cameron v. Cole (1944) 68 C.L.R. 571 at p. 589;
Hardie Rubber Co. Ltd. v. General Tyre and Rubber Co. (1973)
124 C.L.R. 521 at p. 527 per Gibbs J., and Woods v. Sheriff
of Queensland, supra, at p. 164.
It is a fundamental principle of natural justice applicable to all courts, that, other than in exceptional circumstances, a person against whose interest an order is made be given an opportunity of appearing and presenting his case. If this principle is not observed then the person affected is entitled ex debito justitiae to have that order set aside. This is what occurred on 30 October 1986. His Honour set aside his order, made relevantly ex parte on 10 October 1986, and proceeded to hear submissions on behalf of Cessna.
The matter under appeal does not belong to the class of case where an order is made ex parte in the expectation that it will later be reviewed by the judge in the light of evidence and submissions from the party affected. In WEA Records Ltd. v. Visions Channel 4 Ltd. [1983] 1 W.L.R. 721, 726, an order of that kind was described by Donaldson M.R. as "provisional" in character, and as being one that is ordinarily varied or discharged only after further evidentiary material has been received or considered.
The order under appeal is not like that. It was an order that, as regards Cessna, was made ex parte because of the assumption that, as the only unrepresented party likely to be affected, Cessna had acknowledged in United States proceedings that it would not plead the statute of limitations, and consequently had no direct interest in opposing the application. When that assumption later proved to be unfounded, his Honour was, as he recognised, bound on the application of Cessna to set aside the order, or so much of it as affected Cessna. By doing so he gave effect to a fundamental principle referred to above, which, as was recognised in Commissioner of Police v. Tanos (1958) 98 C.L.R. 383, 396, applies not only to proceedings of inferior tribunals but as a matter of course also to proceedings in the established courts.
The appellants rely upon two cases, that of Farrell v. Delaney (1952) 52 S.R.(N.S.W.) 236 and an unreported decision of McPherson S.P.J. (as his Honour then was) in Gore v. Octahim Wise (Nos. 743 of 1989 and 118 of 1989) delivered 7 May 1991. Farrell v. Delaney, supra, was a case in which declarations were made pursuant to s. 3 of the Disorderly Houses Act 1943 which section enabled such declarations to be made, it was found, ex parte. Summonses were taken out returnable before a judge in chambers seeking that the declarations be set aside, on the ground, inter alia, that they were made ex parte. The chamber judge set aside the declarations holding that s. 3 did not empower the declarations to be so made. The Court of Appeal held that s. 3 did empower the court to make the order ex parte. Any observations which the Court of Appeal might be thought to have made about the need for new material to be placed before the court before an ex parte order could be reconsidered, cannot be considered as authoritative statements of the general rule. This is the view which was taken of the decision by Adam J. in Re Reid Murray Acceptances Ltd. [1964] V.R. 82 at p. 90. In Gore v. Octahim Wise, supra, the original order was obtained pursuant to s. 5 of the Evidence on Commission Act 1988, s. 6 of which provides that the application is to be made ex parte. Different considerations therefore were before his Honour who, in the course of his judgment adverted to the general principle to which reference has been made above. Accordingly, where a statute or rules of court provide for an order to be obtained ex parte different considerations may apply, but that is not the case here.
It follows then that his Honour was within jurisdiction when he made the order on 30 October 1986 and that being the only ground of appeal which was pursued, the appeal is dismissed with costs.
Sciffer v. Reprographics Pty. Ltd.
This appeal raised matters substantially similar to the appeal in Thomson v. Reprographics and was argued together with it. It is another dependency action arising out of the same accident on 5 January 1982. Master Weld joined Cessna on 24 February 1984 and on 20 October 1986 Senior Master Lee Q.C. ordered in the same terms as Shepherdson J.'s order of 10 October 1986 that time for compliance with Master Weld's order be extended to 27 October 1986 and that the proceedings against Cessna be deemed to have commenced on 24 February 1984. Cessna sought an order from the chamber judge setting aside that order by summons dated 29 October 1986. Shepherdson J. heard this matter immediately following Thomson. He said that for the same reasons as he had set out in Thomson, namely, that the order was made ex parte by the Senior Master, it should be set aside. Since there was no objection to joinder, only so much of the order as deemed the joinder to have occurred from 24 February 1984 was ultimately set aside. Leave to appeal was given in that matter also.
Various objections to the form of the applications before Shepherdson J. were taken but his Honour dealt with those matters in what he described as a "robust" fashion. The same procedural defaults were sought to be ventilated here on appeal but since they were matters which were well within the jurisdiction of his Honour no error can be discerned in his approach.
Accordingly the appeal is dismissed for the reasons set out above in Thomson. The appellants must pay the respondents costs of and incidental to the appeal to be taxed.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
No. 193 of 1982
Before the Court of Appeal
The President
Mr Justice McPherson
Justice White
BETWEEN:
KAREN GAIL SCIFFER on her own
behalf and WADE JUSTIN SCIFFER
and NATHAN TRENT SCIFFER (by theirnext friend KAREN GAIL SCIFFER
(Appellants) Plaintiffs
AND:
REPROGRAPHICS PTY. LTD.
First Defendants
AND:
TELEDYNE CONTINENTAL MOTORS
Second Defendants
AND:
CESSNA AIRCRAFT CORPORATION
(Respondent) Third Defendant No. 194 of 1982
BETWEEN:
DIANE EVELYN THOMSON on her own
behalf and NICOLE YASMIN THOMSON
and SIMONE YVETTE THOMSON (by theirnext friend DIANE EVELYN THOMSON
(Appellants) Plaintiffs
AND:
REPROGRAPHICS PTY. LTD.
First Defendants
AND:
TELEDYNE CONTINENTAL MOTORS
Second Defendants
AND:
CESSNA AIRCRAFT CORPORATION
(Respondent) Third Defendant
JUDGMENT OF THE COURT
Delivered the 26th day of October 1992.
MINUTE OF ORDER
Appeals dismissed with Costs
CATCHWORDS:
Ex parte orders - circumstances under
which they can be set aside.
| Counsel: | R. Luxton for the Appellants J. Bell for the Respondent |
| Solicitors: | Morrell Stephenson for the Appellants |
| Corrs Chambers Westgarth for the Respondent | |
| Hearing Date: | 6 October 1992 |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
No. 193 of 1982
BETWEEN:
KAREN GAIL SCIFFER on her own
behalf and WADE JUSTIN SCIFFER
and NATHAN TRENT SCIFFER (by theirnext friend KAREN GAIL SCIFFER
(Appellants) Plaintiffs
AND:
REPROGRAPHICS PTY. LTD.
First Defendants
AND:
TELEDYNE CONTINENTAL MOTORS
Second Defendants
AND:
CESSNA AIRCRAFT CORPORATION
(Respondent) Third Defendant No. 194 of 1982
BETWEEN:
DIANE EVELYN THOMSON on her own
behalf and NICOLE YASMIN THOMSON
and SIMONE YVETTE THOMSON (by theirnext friend DIANE EVELYN THOMSON
(Appellants) Plaintiffs
AND:
REPROGRAPHICS PTY. LTD.
First Defendants
AND:
TELEDYNE CONTINENTAL MOTORS
Second Defendants
AND:
CESSNA AIRCRAFT CORPORATION
(Respondent) Third Defendant
____________________________________________________________
___
The President
Mr Justice McPherson
Justice White
____________________________________________________________
___
Judgment of the Court delivered on
26th October, 1992
____________________________________________________________
___
APPEALS DISMISSED WITH COSTS
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