Whiteford v Bailey - [1994] QCA 426

IN THE COURT OF APPEAL	[1994] QCA 426
SUPREME COURT OF QUEENSLAND

Appeal No. 55 of 1991

Brisbane

Before

Fitzgerald P.
McPherson J.A.
Derrington J.

[Whiteford v. Bailey]

BETWEEN

BEDE NORTON WHITEFORD

Appellant

AND

WILLIAM BAILEY Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 24th day of October 1994

In November 1990 William Bailey issued a plaint out of the District Court at Southport claiming from the defendant Bede Whiteford various forms of relief including $100,605.94 pursuant to a contract, and an order that the defendant indemnify him against liability under a guarantee of the defendant's indebtedness to a Bank. On 3 January 1991 the plaintiff obtained judgment in the action in default of defence. A certificate of the judgment was filed in the District Court at Grafton in New South Wales with a view to its enforcement there, which was where the defendant was then residing or thought to be present. On 30 January 1991, the defendant applied to a District Court judge at Southport for an order setting aside the default judgment. After an initial adjournment, the application was heard by Newton DCJ and dismissed by him on 14 June 1991.

On 16 July 1991 the defendant filed a notice of appeal, which was, however, not served until 5 August 1991. Nothing further has been done to bring the appeal to a hearing, and application is now made to dismiss the appeal for want of prosecution, or on the alternative or additional ground that the appeal was not instituted within the time allowed in that behalf. There is no dispute that the notice of appeal was neither filed nor served in time. Under O.90, r.6, this Court has power to extend the time for appealing from the District Court (Jiminez v. Jayform Contracting Pty. Ltd [1993] 1 Qd.R. 610), but would exercise its discretion to do so only if the circumstances were such as to justify that course.

Far from that being so, the appeal in this case is one that ought properly to be dismissed for want of prosecution : cf. Moto v. Faul [1980] V.R. 26. It is not necessary to state the sequence of events in any detail in order to say that, throughout the course of the litigation, the conduct of the defendant has shown himself to be extremely dilatory.

No cogent explanation has been offered for his failure to institute the appeal in time, or for his omission to prosecute it during the period of three years or more that has elapsed since the notice of appeal was filed.

In addition, there is a real risk of serious, if not fatal, prejudice if the appeal were to succeed. In that event, the judgment would be set aside and the action would proceed to trial. In the meantime, however, the plaintiff has died. The agreement on which the plaint is founded is alleged to have been made between the parties in December 1988 and to have been oral. The plaintiff's death…

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 Whiteford v Bailey

Details

AGLC: Whiteford v Bailey [1994] QCA 426
Case: [1994] QCA 426
Decision Date: 24/10/1994

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of Whiteford v Bailey was heard by the Court of Appeal. The appellant, Bede Norton Whiteford, appealed against the decision of the District Court at Southport, which had dismissed an application to set aside a default judgment. The respondent, William Bailey, sought to enforce the default judgment in a District Court at Grafton in New South Wales. The legal issues before the Court of Appeal were whether the appeal should be dismissed for want of prosecution and if the bankruptcy of the appellant at the time the default judgment was given was relevant. The Court found that the appellant had been dilatory in prosecuting the appeal and offered no cogent explanation for the delay. The Court also found that there was a real risk of serious prejudice if the appeal were to succeed, as the plaintiff had died, leaving no critical witness to prove the claim. The Court further determined that the claim did not satisfy the criteria for being a provable debt under the Bankruptcy Act 1966 (Cth.), as the appellant had incurred the relevant obligation after becoming bankrupt. The appeal was dismissed with costs to be taxed, including the costs of the motion to dismiss.

The Court of Appeal found that the appeal should be dismissed for want of prosecution, as the appellant had not served the notice of appeal within the required time and had shown dilatory conduct throughout the litigation. The Court noted that the continued existence of the litigation was preventing the administration of the plaintiff's estate from being brought to a conclusion. The Court also found that there was no justification for allowing the appeal to remain in existence, as the appellant had not provided a cogent explanation for the delay in filing the notice of appeal and prosecuting it over the three-year period. The Court held that the appeal should be dismissed with costs to be taxed, including the costs of the motion to dismiss. The Court of Appeal found that the bankruptcy of the appellant at the time the default judgment was given was not relevant to the decision, as the claim did not satisfy the criteria for being a provable debt under the Bankruptcy Act 1966 (Cth.).

Orders