Tonkin v Johnson

[1996] QCA 247

IN THE COURT OF APPEAL	[1996] QCA 247
SUPREME COURT OF QUEENSLAND

Appeal No. 285 of 1995

Brisbane

Before Fitzgerald P.
McPherson J.A.
Byrne J.

[Tonkin v. Johnson]

BETWEEN

PATRICIA IRENE TONKIN

(Plaintiff) Appellant

AND

GRAHAM JOHNSON

(Second Defendant) Respondent

REASONS FOR JUDGMENT OF THE COURT

Judgment delivered the 26th day of July 1996

The plaintiff's husband died in 1981 as a result of participating in a scuba diving activity arranged by the defendants. She instituted an action in the Cairns District Registry of the Supreme Court for damages under Lord Campbell's Act, and in 1988 recovered judgment against both defendants. In the case of the second defendant, the judgment was initially only an interlocutory judgment, in default of defence, with damages to be assessed, as they later were on 13 April 1988, at a figure of $141,220.00 for which final judgment was entered against the second defendant. The interlocutory judgment was given in default of defence after the defence which the second defendant had delivered on 25 February 1983 was struck out for failure to answer interrogatories.

The plaintiff was unsuccessful in her efforts to obtain a sequestration order in bankruptcy against the second defendant. She then turned to the remedy of execution as a means of enforcing the judgment in her favour. Under O.47, r.24(a) of the Rules of the Supreme Court, leave is required to issue execution once six years have elapsed since the date of judgment. On 22 August 1995, the plaintiff issued a summons seeking leave under that rule. It came before a Judge of the Supreme Court sitting in chambers on circuit at Cairns. On 28 November 1995, his Honour delivered judgment dismissing the plaintiff's application, but with no order as to costs. A second summons, which was also before him, was adjourned to a date to be fixed. It was an application by the second defendant to set aside the default judgment against him.

An appeal has been brought by the plaintiff against the order dismissing her summons. The main reason why it was dismissed was that the learned judge considered that, on the material before him, the second defendant might succeed on his application to have the default judgment set aside. He had been the master of the vessel from which the scuba diving was taking place. He denied liability, whether vicariously or otherwise, for the death of the plaintiff's husband, which had, it was said been caused by a defect in the diving equipment that was the sole responsibility of the first defendant. The learned judge considered that it would be better if those matters were resolved after a trial on oral evidence rather than at a hearing before him on affidavit.

It may well be difficult to disagree with his Honour's conclusion to that effect. However, the orders made by his Honour seem, with respect, to impede rather than facilitate such an outcome. The application for leave to execute is really subsidiary to the application to set aside the default judgment. If that judgment is set aside, there will, of course, be no question of enforcing it by execution. If it is not set aside, it is perhaps not immediately obvious why leave to issue execution on it should not be given.

That is no doubt a question for a future occasion; but the result of the orders made at first instance is, as we see it, that the two applications have now been disposed of in the wrong sequence. The summons to set aside should have been, and should be, determined first, before the application for leave to issue execution is considered. Otherwise the plaintiff's application will continue to be overshadowed by the possibility that, if leave to execute is granted, the judgment sought to be enforced may yet be set aside in the future.

For these reasons we have decided that the appeal should be allowed with costs, and the order dismissing the plaintiff's application should be set aside. The costs of and incidental to that application should, as we have also held, be left to depend on the outcome of that application. We have already made orders to that effect. The respondent second defendant has given an undertaking to file within 14 days any further affidavits in support of his application to set aside the judgment. The parties are to agree on times for subsequent interlocutory steps to enable that application to be determined in proceedings which this Court has also ordered are to be expedited.

In view of the course that was followed at first instance, the appeal is, we consider, one in which it is appropriate to order that the respondent be granted an indemnity certificate for the costs of this appeal. The discretion below miscarried because of the sequence in which the two competing applications were disposed of.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 285 of 1995

Brisbane
[Tonkin v. Johnson]

BETWEEN

PATRICIA IRENE TONKIN

(Plaintiff) Appellant

AND

GRAHAM JOHNSON

(Second Defendant) Respondent

Fitzgerald P.
McPherson J.A.

Byrne J.

Judgment delivered 26/07/96
Reasons for judgment by the Court

1.         APPEAL ALLOWED, WITH COSTS TO BE TAXED;

2.         THE ORDERS MADE BELOW ON THE APPLICATION BY THE APPELLANT SET ASIDE AND IN LIEU THAT APPLICATION IS ADJOURNED AND IS TO BE HEARD TOGETHER WITH THE APPLICATION BY THE RESPONDENT (TO SET ASIDE THE JUDGMENT UPON WHICH THE APPELLANT SEEKS LEAVE TO ISSUE EXECUTION);

3.         THE COSTS OF THE APPELLANT'S APPLICATION FOR LEAVE TO ISSUE EXECUTION BEFORE THE CHAMBER JUDGE ON 28 NOVEMBER 1995 ARE TO FOLLOW THE OUTCOME OF THAT APPLICATION WHEN IT IS ULTIMATELY DETERMINED;

4.         FURTHER ORDER THAT THE HEARING OF BOTH APPLICATIONS BE EXPEDITED;

5.         THAT THE PARTIES AGREE UPON AND FILE WITHIN 48 HOURS DIRECTIONS FOR THE FUTURE HEARING AND DISPOSAL OF BOTH APPLICATIONS; AND

6.         THAT THE RESPONDENT BE GRANTED AN INDEMNITY CERTIFICATE FOR THE COSTS OF THIS APPEAL.

CATCHWORDS	EXECUTION - Application for Extension of Time - Leave required to issue execution once 6 years have elapsed since the date of judgment - Order 47, r.24(a) Rules of the Supreme Court.
DEFAULT JUDGMENT - Application to set aside default

judgment.

PRACTICE - Correct sequence for the disposal of the above two applications.

Counsel:	P. Dutney Q.C. for the appellant D. Fraser Q.C. for the respondent
Solicitors:	Phillips Fox, as t/a for Cohen Kirby & Iser, Bendigo, for the appellant
Kinneally Mahoney, as t/a for Morrow & Associates, Cairns, for the respondent
Hearing Date:	23 July 1996