Smith v Western Metals Copper Ltd

DISTRICT COURT OF QUEENSLAND  [2003] QDC 006

PARTIES:                  PAUL  RAYMOND SMITH
  (plaintiff)
  -and-

WESTERN METALS COPPER LIMITED

(A.C.N. 004 664 108)
  (first defendant)
  -and-

CALTON HILLS PTY LTD

(A.C.N. 066 708 727)
  (second defendant)
  -and-

MOUNT ISA CITY COUNCIL

(third defendant)

FILE NO:                   (D) 27 of 2000

DIVISION:                District Court

DELIVERED ON:     12 February 2003

DELIVERED AT:     Mt. Isa

HEARING DATE:     4 February 2003

JUDGE:  Forde D.C.J.

ORDER:  1.  That the judgment  entered by the Respondent/Plaintiff

against the Applicant/Third Defendant in default of appearance on 10 December 2002 be set aside.

2.   That the Applicant/Plaintiff have leave to defend and that the defence be filed and served within twenty-one (21) days.

3.   That the Applicant/Third Defendant do pay the costs of and incidental to the application of the Respondent/Plaintiff to be assessed on the scale appropriate where the amount recovered exceeds $50,000.00, including the costs thrown away by the default judgment.

4.   Liberty to apply.

CATCHWORDS: Setting aside judgment in default of appearance – Rule 290 Uniform Civil Procedure Rules- defence on the merits

Aboyne Pty Ltd v. Dixon Homes Pty Ltd (1980) Qd. R. 142; National Mutual Life Association of Australasia Limited v. Oasis Developments Pty Ltd (1983) 2 Qd. R. 441; Troiani v Alfost Properties Pty Ltd Court of Appeal No.9560 of 2001 judgment dated 2 August 2002.

APPEARANCES:     Mr L.A. Evans for Applicant/Third Defendant

Mr D. Moffatt of V.R. Moffatt & Associates for Respondent/Plaintiff

Introduction

[1]The present application by the Third Defendant, Mt. Isa City Council (the “Applicant”) seeks to set aside a default judgment entered in this Court on 10 December 2001. The application was filed on 23 December 2002, over twelve (12) months later. It is made pursuant to rule 290 of the Uniform Civil Procedure Rules (“UCPR”). It is accepted that the judgment was regularly obtained. The judgment was obtained in default of appearance by the applicant. The action was commenced on 17 August 2000. Defences were filed by the First and Second Defendants on 29 August 2001 and 4 March 2002 respectively. The Applicant was served with the proceedings on 17 July 2001.

[2]  The Respondent/Plaintiff, Paul Raymond Smith, was injured on 20 August 1997, when the vehicle which he was driving ran into a ditch and he suffered personal injuries.  He sues the First and Second Defendants as the lessees and occupiers of Gunpowder Road, near Mt. Isa.  He alleges that the ditch was unguarded and no warning was given of its presence.  It is not clear in the pleading as against the Applicant  what its connection to the road is.  Similar allegations of negligence are made against all defendants.  However, in the draft defence (Exhibit AI 7), it is suggested that:

“7.   …The Third Defendant states that:

a.   …

b.  the Third Defendant has over 1000 kilometres of rural roads   under its control, and it does not have sufficient resources to carry out inspections of all roads;

c.   the Third Defendant had an agreement with the First

Defendant that the First…