Seymour v Drill Engineering & Pastoral Company Pty Ltd

Case [2023] QCA 159

SUPREME COURT OF QUEENSLAND

CITATION:

Seymour & Anor v Drill Engineering & Pastoral Company Pty Ltd [2023] QCA 159

PARTIES:

ANNE LENIA SEYMOUR
(first appellant)
MICHAEL WILLIAM SEYMOUR
(second appellant)
v
DRILL ENGINEERING & PASTORAL COMPANY PTY LTD
(respondent)

FILE NO/S:

Appeal No 8239 of 2022
DC No 21 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – [2022] QDC 136 (Porter KC DCJ)

DELIVERED ON:

8 August 2023

DELIVERED AT:

Brisbane

HEARING DATE:

3 November 2022

JUDGES:

Mullins P and Dalton JA and Henry J

ORDERS:

1. Application for further evidence to be received on special grounds, per r 766(1)(c) Uniform Civil Procedure Rules, refused.

2.   Appeal dismissed with costs.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – where the appellants engaged the respondent in a contract to drill a bore on their property – where the respondents successfully sued the appellants in the District Court – where the appellants appeal on various grounds going to the legality of the work done under the contract, the circumstances under which the work ceased, the terms of the contract, the performance of contractual obligations and alleged incompetence of their counsel below – where the appellants apply under r 766(1)(c) Uniform Civil Procedure Rules for further evidence to be received

Criminal Code (Qld), s 668E
District Court of Queensland Act 1967 (Qld), s 118
Evidence Act 1977 (Qld), s 53, s 79
Penalties and Sentences Act 1992 (Qld), s 9
Uniform Civil Procedure Rules 1999 (Qld), r 149, r 150, r 171, r 367, r 765, r 766, r 770
Water Act 2000 (Qld), s 816

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40, cited
Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16, cited
Bajramovic v Calubaquib (2015) 71 MVR 15; [2015] NSWCA 139, cited
Browne v Dunn (1893) 6 R 67, cited
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67, cited
Chouman v Margules (1993) 17 MVR 144, considered
Clarke v Japan Machines (Australia)Pty Ltd [1984] 1 Qd R 404, considered
Deputy Commissioner of Taxation (Cth) v Luckhardt & Anor[2006] QCA 53, cited
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, cited
Faris v Savage [2019] ACTSC 339, cited
Faris v Savage (No 2) [2020] ACTSC 219, cited
Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52, cited
Gilligan’s Backpackers Hotel & Resort Pty Ltd v Mad Dogs Pty Ltd[2016] QCA 304, cited
Hamilton v Oades (1989) 166 CLR 486; [1989] HCA 21, cited
Jacobsen v Suncorp Insurance & Finance (No 2) [1992] 1 Qd R 385, cited
Jowett v Kelly [2008] NSWSC 1009, cited
Keefe v Marks (1989) 16 NSWLR 713, cited
Nelson v Nelson (1995) 184 CLR 538; [1995] HCA 25, cited
Norbis v Norbis (1986)…

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Details
AGLC
Seymour v Drill Engineering & Pastoral Company Pty Ltd [2023] QCA 159
Case
[2023] QCA 159
Decision Date

CaseChat Overview and Summary

In the case of Seymour v Drill Engineering & Pastoral Company Pty Ltd, the appellants engaged the respondent to drill a bore on their property. The respondents successfully sued the appellants in the District Court, and the appellants now appeal on various grounds, including the legality of the work done under the contract, the circumstances under which the work ceased, the terms of the contract, the performance of contractual obligations, and the alleged incompetence of their counsel during the initial trial. The appellants also applied for further evidence to be received under r 766(1)(c) Uniform Civil Procedure Rules.

The court considered the appellants' application to adduce further evidence on the appeal, specifically evidence from an expert who was not called at trial and a driller who drilled a successful bore on the appellants' property after the trial. The court noted that the expert evidence was available during the trial but was not used due to contradictory evidence. The court concluded that the evidence should not be received as it was available for use at the trial and did not meet the criteria for special grounds. The court also found the argument that the respondent should have succeeded in drilling a bore near a successful bore to be logically and articulately flawed, given the uncertainty of tapping a particular artesian aquifer.

The court formally addressed the application for leave to rely upon the affidavit of the expert, Mr Whittington, stating that it was for the purpose of alleging a miscarriage of justice by reason of incompetence of counsel. The court held that the evidence was not relied upon as evidence of facts for a rehearing and thus did not meet the special grounds criteria. The court refused the application for further evidence and dismissed the appeal, ordering the costs of the appeal to be paid by the appellants.

The court's reasoning and outcome were based on the grounds that the appellants' appeal grounds failed, and the application for further evidence did not meet the criteria for special grounds. The appeal was dismissed, and costs were awarded to the respondent.

Orders

Orders of the court

1. Application for further evidence to be received on special grounds, per r 766(1)(c) Uniform Civil Procedure Rules, refused.

2. Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Leave to add the additional ground of appeal was not opposed and was granted at the beginning of the hearing of the appeal. The success of this new ground depends upon the Court acceding to the application to adduce further evidence on this appeal. For the reasons given below, that evidence should not be received, and thus this ground fails.Application to Adduce Further Evidence on Appeal The appellants made an application to adduce evidence of an expert who was deliberately not called by them at trial, and from a driller who had (very soon after the trial) drilled a successful bore on their property. This application ought to be refused. As to the expert, the appellants were in contact with Mr Whittington in early 2018. At that stage they had engaged solicitors other than those who ran the trial. Those solicitors engaged Mr Whittington to prepare a report, which he did. It was in the appellants’ favour and it was provided in January 2019 for use in the proceeding. A summary judgment application was made in reliance on the report. Unsurprisingly, that application was dismissed. In April 2020 the appellants engaged new solicitors. They provided them with a copy of the report. The appellants swear that three days before the trial they were contacted by Mr Whittington, who was concerned that he had heard nothing about the trial. They then contacted their new solicitors and were informed that the solicitors (and hearsay, their barrister) had decided not to call Mr Whittington, but to call a Mr Edward Mann instead. The appellants now say that they did not agree with that decision, but they give no evidence at all that they expressed this disagreement to their solicitors. In fact they swear that they contacted Mr Whittington and told him he was not required to attend the trial. I note that it would not have been a sensible decision to call both Mr Whittington and Mr Mann, because their evidence was contradictory in material respects. The trial proceeded on the basis of Mr Mann’s expert evidence. That was rejected by the trial judge. In my view this Court should not receive Mr Whittington’s evidence. It was available for use at the trial: Clarke v Japan Machines (Australia) Pty Ltd.[4] A decision was made not to use it.[4][1984] 1 Qd R 404, 408. Mr Beale is a very experienced water bore driller. He gave the appellants a quotation to drill a bore on their property on or around 14 January 2022. The first appellant swears that the appellants were not in a financial position to accept the quotation at that time. A little later that year, July, they were, and did. They signed an agreement with Mr Beale’s company on or around 7 September 2022. Mr Beale’s company drilled a water bore about 60 m from the location of the failed water bore, which is the subject of this proceedings, and by 16 September 2022 tapped an artesian aquifer at about 1353 m. The point seems to be that, implicitly, the respondent should also have succeeded. That is a difficult argument in terms of logic and in terms of articulation in either a contractual or tortious framework. It is made almost impossible given that the trial judge recorded, “It was accepted by all witnesses that there is no guarantee that a bore will tap a particular artesian aquifer, even if it is drilled near a successful bore”.

Decision

Reasons for decision

Finally, it is necessary to formally deal with the r 766(1) application for leave to rely upon the affidavit of Mr Whittington. It was necessary for that affidavit to be read before this Court in order for complaint (e) to be advanced and considered by this Court in considering the merits of that complaint. However, that was for the purpose of alleging a miscarriage of justice by reason of incompetence of counsel. If successful, that ground would have required the ordering of a new trial. The evidence of Mr Whittington was not relied upon as evidence as to questions of fact in the context of this Court arriving on a rehearing at a different final judgment than below. Indeed, because it clearly was evidence which was known of and could have been used below, special grounds did not exist for its use in that context. The r 766(1) application for leave to rely upon it should be refused.Conclusion All the appellants’ appeal grounds have failed with the consequence the appeal should be dismissed. This makes it unnecessary to deal with DEPCO’s contention that the decision below should be affirmed because its quantum meruit claim, not the subject of findings below, should be upheld.Orders I would order:1. Application for further evidence to be received on special grounds, per r 766(1)(c) Uniform Civil Procedure Rules, refused.2. Appeal dismissed with costs.

Ratio Decidendi

Legal Principle Established

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