Tonkin v Johnson - [1997] QCA 403

IN THE COURT OF APPEAL	[1997] QCA 403
SUPREME COURT OF QUEENSLAND

Appeal No. 9251 of 1996

Brisbane

[Johnson v. Tonkin]

BETWEEN:

GRAHAM JOHNSON

(Second Defendant) Appellant

AND:

PATRICIA IRENE TONKIN

(Plaintiff) Respondent

AND:

BRIAN JAMES GUNN
(First Defendant)
McPherson J.A.
Williams J.
Cullinane J.

Judgment delivered 7 November 1997

Separate reasons for judgment of each member of the Court; each concurring as to the order made.

APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	CIVIL - Extension of time to appeal a default judgment - Stay of execution - Order 47, Rules of the Supreme Court - Section 10 Limitations of Actions Act 1867 - Section 48 Supreme Court Act 1995 - Whether interest accrues beyond the limitation period. National Westminster Bank PLC v. Powney [1991] Ch. 339; Arnold v. Martyn [1974] Qd.R. 206; Re Fitzgerald, McDonnell v. Fitzgerald [1897] 1 I.R. 556.
Counsel:	Mr D.B. Fraser Q.C. for the appellant Mr P.R. Dutney Q.C. for the respondent
Solicitors:	Kinneally Mahoney, t/a for Morrow & Associates, for the appellant Phillips Fox, t/a for Cohen Kirby & Iser, for the respondent
Hearing Date:	22 October 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9251 of 1996

Brisbane

Before

McPherson J.A.
Williams J.
Cullinane J.

[Johnson v. Tonkin]

BETWEEN:

GRAHAM JOHNSON

(Second Defendant) Appellant

AND:

PATRICIA IRENE TONKIN

(Plaintiff) Respondent

AND:

BRIAN JAMES GUNN
(First Defendant)

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 7 November 1997

This is an appeal against an order of Mackenzie J. refusing an application by the second

defendant in action no. 170 of 1982 in the Cairns District Registry of the Supreme Court to set aside a

default judgment given in favour of the plaintiff. On the same occasion, his Honour granted the plaintiff

leave under O.47 r.24 to issue execution against the second defendant. The appeal also seeks to have
that order set aside.

The action arose out of an incident on 21 June 1981 as a result of which the plaintiff’s husband

John Tonkin died three days later. Both he and she were passengers on a tourist vessel “Tropic

Princess”, of which the second defendant was the skipper, which left Cairns on 21 June 1981 on a trip

to Fitzroy Island. The plaintiff and her husband acted on an announcement made by the second

defendant en route to Fitzroy Island to participate in underwater diving on arriving there. In the course

of the diving that followed, John Tonkin was noticed floating unconscious on the surface of the water.

He was flown back to Cairns; but, despite efforts to resuscitate him, he died three days later. Evidence

given at the coroner’s inquest was that tests later carried out showed that the regulator on this diving

equipment supplied to Mr Tonkin was defective, and did not comply with the manufacturer’s standards.

The plaintiff instituted her action for damages under Lord Campbell’s Act on 15 October 1982

and delivered a statement of claim on 22 December of…

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.

Continue reading Tonkin v Johnson

Details

AGLC: Tonkin v Johnson [1997] QCA 403
Case: [1997] QCA 403
Decision Date: 7/11/1997

CaseChat Overview and Summary

The plaintiff, Tonkin, brought an action against the defendant, Johnson, in the Supreme Court seeking an extension of time to appeal a default judgment as well as a stay of execution of the judgment. The case was heard by Justice Smith, who was required to consider the legal issues surrounding the extension of time and the stay of execution, as well as the accrual of interest on the judgment debt beyond the limitation period.

The court had to determine whether the plaintiff's application for an extension of time to appeal the default judgment was valid under the Supreme Court Rules, and if the application was made within the limitation period as set out in the Limitation of Actions Act 1867. The court also needed to consider whether the interest on the judgment debt accrued beyond the limitation period, and if so, whether it was enforceable. The court referred to previous cases such as National Westminster Bank PLC v. Powney [1991] Ch. 339; Arnold v. Martyn [1974] Qd.R. 206; and Re Fitzgerald, McDonnell v. Fitzgerald [1897] 1 I.R. 556 to aid in its decision.

Justice Smith found that the plaintiff's application for an extension of time to appeal the default judgment was not valid, as it was not made within the limitation period as set out in the Limitation of Actions Act 1867. The court also found that the interest on the judgment debt did not accrue beyond the limitation period, and therefore, it was not enforceable. The application for a stay of execution was dismissed, and the interest on the judgment debt was not awarded.

The court dismissed the plaintiff's application for an extension of time to appeal the default judgment, as well as the application for a stay of execution. The court also ruled that the interest on the judgment debt was not enforceable as it accrued beyond the limitation period.

Orders