Johns v Cosgrove [2000] QCA 157

PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT - WHERE FRAUD, MISREPRESENTATION OR SUPPRESSION OF MATERIAL FACTS - setting aside judgment for fraud - reference by Court of Appeal to Trial Division for finding whether fraud proved - alleged errors by trial division judge in making findings - approach of Court of Appeal to acceptance of such findings and to whether fraud should be found - consideration of power under s 68(3) of Supreme Court of Queensland Act 1991 - powers of Court of Appeal on remitter - whether findings of fact by trial division should be accepted in whole or in part - whether judgment against the second defendant tainted by fraud in judgment against the first defendant - whether discretion exists to refuse to set aside judgment obtained by fraud - exercise of discretion

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - FRESH EVIDENCE - PARTICULAR CASES

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - POWERS OF COURT - FURTHER EVIDENCE

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - POWERS OF COURT - ENTRY OF JUDGMENT OR NON-SUIT OR GRANT OF NEW TRIAL

EVIDENCE - ADMISSIBILITY AND RELEVANCY - SIMILAR FACTS - TO PROVE FACT IN ISSUE - IN GENERAL

EVIDENCE - WITNESSES - CORROBORATION - INDEPENDENT CIRCUMSTANTIAL EVIDENCE

EVIDENCE - WITNESSES - CORROBORATION - ADMISSIONS - CONDUCT - OTHER CONDUCT

EVIDENCE - WITNESSES - CORROBORATION - WHAT CONSTITUTES - whether corroboration of statement of deceased person required - whether evidence capable of implicating plaintiff in fraud - reasonable evidence of agreement between plaintiff and witness - whether evidence of witness' expectation of money from the plaintiff corroborates allegation of fraud - conduct of other persons supporting inference of fraudulent agreement - evidence of lies by witness not corroborating allegation of fraud - effect of legal error in use of evidence of lies by witness

TORT - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - PARTICULAR CASES - ROAD ACCIDENT CASES

TORT - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - GENERALLY - nature of process of assessment of contributory negligence - whether different apportionment of contributory negligence in judgment against first defendant might follow from conclusion of fraud in judgment against second defendant

TORT - NEGLIGENCE - PROOF OF NEGLIGENCE - ADMISSIBILITY OF EVIDENCE

TORT - NEGLIGENCE - PROOF OF NEGLIGENCE - WEIGHT AND CREDIBILITY OF EVIDENCE

NEGLIGENCE - ROAD ACCIDENT CASES - ACTIONS FOR NEGLIGENCE - APPORTIONMENT OF DAMAGES - GENERALLY

TORT - NEGLIGENCE - PROOF OF NEGLIGENCE - MISCELLANEOUS MATTERS

Evidence Act 1977 (Qld) s 101(1), s 102

Law Reform Act 1995 (Qld) s 6(a), s 7

Supreme Court of Queensland Act 1991 (Qld) s 68(3), s 68(4), s 69

Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87, applied

Aroutsidis v Illawarra Nominees Pty Ltd (1990) 21 FCR 500, considered

Barisic v Devonport & Ors [1978] 2 NSWLR 111, considered

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, applied

Burton v The Melbourne Harbour Trust Commissioners [1954] VicLawRp 55; (1954) VLR 353, considered

DF Lyons Pty Ltd v Commonwealth Bank of Australia [1991] FCA 74; (1991) 28 FCR 597; 100 ALR 464, considered

Edwards v R [1993] HCA 63; (1993) 178 CLR 193, considered

Fitzgerald v Lane [1988] UKHL 5; [1989] 1 AC 328, considered

Gates v City Mutual Life Assurance Society Ltd [1937] ArgusLawRp 41; (1982) 43 ALR 313, considered

Hip Foong Hong v H Neotia & Co [1918] UKPC 65; [1918] AC 888, considered

Hobbs v CT Tinling & Co Ltd [1929] 2 KB 1, considered

Jack v Smail [1905] HCA 25; (1905) 2 CLR 684, considered

Kelly v Narrandera Shire Council [1998] NSW SC 686, 16 December 1998, considered

Re Knowles [1984] VicRp 67; [1984] VR 751, considered

Lucas v R [1981] QB 720, considered

McCann v Parsons [1954] HCA 70; (1954) 93 CLR 418, considered

McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529, considered

Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, considered

Mister Figgins v Centrepoint Freeholds Pty Ltd [1981] FCA 15; (1981) 36 ALR 23, considered

Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, applied

Sedgwick v Law Society of New South Wales NSWCA No 40111 of 1992, 18 May 1994, considered

Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574, considered

Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1, applied

VRS v The Queen [1997] HCA 47; (1997) 191 CLR 275, considered

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, considered

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1984-1985) 155 CLR 448, considered

SC Williams QC, with TD North SC for the appellants