Court of Appeal (Qld)|2000-05-05|Before: de Jersey CJ, McMurdo P and Thomas JA. Separate reasons for judgment, of each member of the Court, each concurring as to the orders made
de Jersey CJ, McMurdo P and Thomas JA. Separate reasons for judgment, of each member of the Court, each concurring as to the orders made
Catchwords
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
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING ANDSETTING ASIDE – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT– WHEREFRAUD, MISREPRESENTATION OR SUPPRESSION OF MATERIAL FACTS – setting asidejudgment for fraud – referenceby Court of Appeal to Trial Division forfinding whether fraud proved – alleged errors by trial division judge inmaking findings– approach of Court of Appeal to acceptance of suchfindings and to whether fraud should be found – consideration ofpowerunder s 68(3) of Supreme Court of Queensland Act 1991 – powers ofCourt of Appeal on remitter – whether findings of fact by trial divisionshould be accepted in whole or inpart – whether judgment against thesecond defendant tainted by fraud in judgment against the first defendant -whether discretionexists to refuse to set aside judgment obtained by fraud– exercise of discretionAPPEAL AND NEW TRIAL – NEW TRIAL– IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS –
FRESH EVIDENCE
– PARTICULAR CASESAPPEAL AND NEW TRIAL –
APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT
– FURTHER EVIDENCEAPPEAL AND NEW TRIAL – APPEAL –
PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – ENTRY
OF JUDGMENT
OR NON-SUIT OR GRANT OF NEW TRIALEVIDENCE –
ADMISSIBILITY AND RELEVANCY – SIMILAR FACTS – TO PROVE FACT IN ISSUE
– IN GENERALEVIDENCE – WITNESSES – CORROBORATION –
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
EVIDENCETORT – NEGLIGENCE – PROOF OF NEGLIGENCE –
WEIGHT AND CREDIBILITY OF EVIDENCENEGLIGENCE – ROAD ACCIDENT CASES
– ACTIONS FOR NEGLIGENCE – APPORTIONMENT OF DAMAGES –
GENERALLYTORT – NEGLIGENCE – PROOF OF NEGLIGENCE –
MISCELLANEOUS MATTERS Evidence Act 1977 (Qld) s 101(1), s
102Law Reform Act 1995 (Qld) s 6(a), s 7Supreme Court of
Queensland Act 1991 (Qld) s 68(3), s 68(4), s 69Ahern v The
Queen [1988] HCA 39
(1988) 165 CLR 87, appliedAroutsidis v Illawarra Nominees Pty
Ltd (1990) 21 FCR 500, consideredBarisic v Devonport & Ors
[1978] 2 NSWLR 111, consideredBriginshaw v Briginshaw [1938] HCA 34
(1938) 60 CLR
336, appliedBurton v The Melbourne Harbour Trust Commissioners [1954] VicLawRp 55
(1954)
VLR 353, consideredDF Lyons Pty Ltd v Commonwealth Bank of Australia
[1991] FCA 74
(1991) 28 FCR 597
100 ALR 464, consideredEdwards v R [1993] HCA 63
(1993) 178 CLR
193, consideredFitzgerald v Lane [1988] UKHL 5
[1989] 1 AC 328,
consideredGates v City Mutual Life Assurance Society Ltd [1937] ArgusLawRp 41
(1982) 43
ALR 313, consideredHip Foong Hong v H Neotia & Co [1918] UKPC 65
[1918] AC 888,
consideredHobbs v CT Tinling & Co Ltd [1929] 2 KB 1,
consideredJack v Smail [1905] HCA 25
(1905) 2 CLR 684, consideredKelly v
Narrandera Shire Council [1998] NSW SC 686, 16 December 1998,
consideredRe Knowles [1984] VicRp 67
[1984] VR 751, consideredLucas v R
[1981] QB 720, consideredMcCann v Parsons [1954] HCA 70
(1954) 93 CLR 418,
consideredMcDonald v McDonald [1965] HCA 45
(1965) 113 CLR 529,
consideredMartin v Osborne [1936] HCA 23
(1936) 55 CLR 367, consideredMister
Figgins v Centrepoint Freeholds Pty Ltd [1981] FCA 15
(1981) 36 ALR 23,
consideredRejfek v McElroy [1965] HCA 46
(1965) 112 CLR 517, appliedSedgwick
v Law Society of New South Wales NSWCA No 40111 of 1992, 18 May 1994,
consideredThompson v Australian Capital Television Pty Ltd [1996] HCA 38
(1996) 186
CLR 574, consideredTripodi v The Queen [1961] HCA 22
(1961) 104 CLR 1,
appliedVRS v The Queen [1997] HCA 47
(1997) 191 CLR 275, consideredWentworth
v Rogers (No 5) (1986) 6 NSWLR 534, consideredXL Petroleum (NSW) Pty
Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12
(1984-1985) 155 CLR 448,
considered
Judgment (44 paragraphs)
[1]
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 Act1991 - 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
[2]
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - FRESH EVIDENCE - PARTICULAR CASES
[3]
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - POWERS OF COURT - FURTHER EVIDENCE
[4]
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - POWERS OF COURT - ENTRY OF JUDGMENT OR NON-SUIT OR GRANT OF NEW TRIAL
[5]
EVIDENCE - ADMISSIBILITY AND RELEVANCY - SIMILAR FACTS - TO PROVE FACT IN ISSUE - IN GENERAL
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 - 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
[11]
TORT - NEGLIGENCE - PROOF OF NEGLIGENCE - ADMISSIBILITY OF EVIDENCE
[12]
TORT - NEGLIGENCE - PROOF OF NEGLIGENCE - WEIGHT AND CREDIBILITY OF EVIDENCE
[13]
NEGLIGENCE - ROAD ACCIDENT CASES - ACTIONS FOR NEGLIGENCE - APPORTIONMENT OF DAMAGES - GENERALLY
[14]
TORT - NEGLIGENCE - PROOF OF NEGLIGENCE - MISCELLANEOUS MATTERS