Wall Street Developments Pty Ltd v Egerton - [2010] QDC 44

[2010] QDC 44

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No 2943 of 2009

WALL STREET DEVELOPMENTS PTY LTD ACN 105052748	Appellant
and
EDWARD HUMPHREY EGERTON	Respondent

BRISBANE

..DATE 19/02/2010

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 476(4)
Defendant appeals against judgment entered when it failed to appear at trial - appeal struck out on basis defendant ought to have applied to the original court to have the judgment set aside

HIS HONOUR: In this matter I want to be careful not to pronounce any decisions on issues which may require determination elsewhere on another occasion.

The appeal is one by the defendant against a judgment entered when at the trial it failed to appear. The Acting Magistrate dealt with the situation (which involves a claim by a surveyor for his fees in a principal amount not much in excess of $10,000) when the matter came on for trial, the plaintiff fully prepared with witnesses available. I am prepared to assume the plaintiff could have proved his case by presenting evidence. The Acting Magistrate said, "I suspect the defendant won't be here." Then, "I suspect the matter's not going to take very long, Mr Smith," to which Mr Smith of Counsel agreed, mentioning the professional witnesses who were there who might be "excused fairly quickly". His Honour went on, "I'll obviously be granting judgment if the defendants are not here."

What appeared to be of interest to his Honour was how costs ought to be worked out. The non-appearance of the defendant company was expected. Its principal is Mr Williams. He had obtained a medical certificate from Dr Kaur who didn't really know him, on the 11th of September 2009 indicating unfitness for work for a month. He learned from the court in circumstances where he appears to have had the conduct of the matter for the defendant company that the certificate was unsuitable and got Dr Kaur on the 14th of September to make a handwritten change, apparently by changing "work" to "court".
The plaintiff and his advisers must have become aware of the defendant's interest in getting an adjournment on the basis of the medical certificate. They subpoenaed the doctor, the upshot of which was that she called Mr Williams in to the surgery for a more thorough examination and determined to cancel the certificate. She provided another to the court indicating her opinion on the 16th of September 2009 that Mr Williams will be fit for trial next day.

There has been evidence given by him and the doctor, also by Mrs Williams. There is a conflict between the first two as to exactly what the doctor told him. It's clear that within minutes of the consultation, he advised the Registrar of the Court that he could not attend the next day because of stress, that he was going to stress management as advised by the doctor and "would like adjournment when he can attend, seeing own doctor tomorrow re sugar problem and other matters." That quote…

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 Wall Street Developments Pty Ltd v Egerton

Details

AGLC: Wall Street Developments Pty Ltd v Egerton [2010] QDC 44
Case: [2010] QDC 44
Decision Date: 19/02/2010

CaseChat Overview and Summary

In Wall Street Developments Pty Ltd v Egerton, the defendant, Wall Street Developments Pty Ltd, appealed against a judgment entered against it due to its failure to appear at trial. The claim was for the recovery of surveying fees, and the defendant's principal, Mr Williams, had attempted to secure an adjournment based on a medical certificate, which was later deemed unsuitable by the doctor who issued it. The appeal centred on whether the defendant should have sought to have the judgment set aside in the original court rather than appealing to the District Court.

The key legal issue was whether the appeal court had jurisdiction to hear the appeal when the defendant had not first applied to the original court to have the judgment set aside under Rule 476(4) of the Uniform Civil Procedure Rules. This rule allows the court to set aside or vary a judgment obtained due to a defendant's non-appearance if certain conditions are met. The court had to decide if the appeal should be struck out in favour of the defendant pursuing the appropriate remedy in the Magistrates Court.

The appeal court, considering the principle that litigants should have their issues resolved at the lowest possible level of the judicial hierarchy, held that the appeal should be struck out. The court found that the defendant's procedure was flawed and that it should have first sought to have the judgment set aside in the original court. The appeal court relied on precedents such as Vint v Hudspith, Brown v Fraser, and Adams v Cronin to support the view that the appeal court should not readily exercise its jurisdiction if the defendant could have pursued the appropriate remedy in the original court.

The appeal was ultimately struck out with costs awarded to the respondent on an indemnity basis from the date when the appellant's procedure was challenged in a supplementary outline of argument.

Orders