Cosgrove v Johns[1998] QCA 110

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 453 of 1998

Brisbane

[Cosgrove & Anor v Johns]

BETWEEN:

JENNIFER MARGARET COSGROVE

(First Defendant) (First Applicant)  Appellant

AND:

CHEVRON QUEENSLAND LIMITED

(A.C.N. 009 678 997) (In Liquidation)

(Second Defendant) (Second Applicant)  Appellant

AND:

DALLAS MIDGLEY JOHNS

(Plaintiff)  Respondent

Fitzgerald P

Davies JA

Ambrose J

Judgment delivered 29 May 1998.

Joint reasons for judgment of Fitzgerald P. and Davies J.A.; separate reasons of Ambrose J. dissenting in part.

1. APPLICATION FOR STAY OF EXECUTION OF JUDGMENT AGAINST THE APPELLANT CHEVRON GRANTED.
2. APPLICATION FOR STAY OF EXECUTION OF JUDGMENT AGAINST THE APPELLANT COSGROVE GRANTED, LIMITED TO $150,000.
3. ISSUES RAISED BY PARA. 2(a) OF THE NOTICE OF APPEAL REMITTED TO THE TRIAL DIVISION.
4. COSTS OF THE PRESENT APPLICATION RESERVED FOR CONSIDERATION OF THIS COURT UPON DETERMINATION OF THE APPEAL.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 453 of 1998

Brisbane

Before Fitzgerald P.

Davies J.A.

Ambrose J.

[Cosgrove & Anor v Johns]

BETWEEN:

JENNIFER MARGARET COSGROVE

(First Defendant) (First Applicant)  Appellant

AND:

CHEVRON QUEENSLAND LIMITED

(A.C.N. 009 678 997) (In Liquidation)

(Second Defendant) (Second Applicant)  Appellant

AND:

DALLAS MIDGLEY JOHNS

(Plaintiff)  Respondent

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND DAVIES J.A.

Judgment delivered 29 May 1998

The respondent, who is impecunious, was injured on the night of 24 April 1990 when he was struck by a motor vehicle driven by the appellant, Jennifer Margaret Cosgrove, allegedly after leaving a hotel operated by the appellant, Chevron Queensland Limited.  He was grossly intoxicated when he moved in front of Ms Cosgrove’s motor vehicle. 

In an action against both appellants, the respondent claimed that he had become intoxicated while drinking in the hotel.  The trial judge determined that the respondent’s injuries were caused by negligence by each of the appellants, and that the respondent’s negligence also was a contributing factor.  His Honour held that the respondent’s “share in the responsibility for the damage” within the meaning of sub-s. 10 (1) of the Law Reform Act 1995 was 45 per cent, and his damages of $504,654.16 were reduced by that proportion.  Judgment was given in favour of the respondent against both appellants for $277,560, being 55 percent of the assessed damages, plus costs; i.e., each appellant is severally liable to the respondent for the full amount of the damages and costs. 

Although the trial judge assessed Ms Cosgrove’s share in the responsibility for the respondent’s damages at 30 per cent and Chevron’s responsibility at 25 per cent, apportionment and contribution between the appellants was not sought and the finding had no practical effect.  The appellants were jointly represented at the trial, following an agreement between insurers that Chevron’s insurer would satisfy any judgment against either appellant.

The appellants have appealed, and have applied for a stay of the judgment in favour of the respondent pending the determination of their appeal.  That application is presently before this Court.

The sole basis of the appeal is that “fresh” evidence has been obtained that the respondent procured various witnesses at the trial to give perjured evidence against Chevron, so that the judgment against it was obtained by fraud.  A new trial is sought by both appellants.  Chevron seeks to escape the finding of negligence on which the judgment against it is based and, on that footing, Ms Cosgrove, who does not challenge the finding that she was negligent, seeks to have a reapportionment of responsibility for the respondent’s injuries between herself and the respondent, increasing his share of responsibility to more than 45 per cent.

One important matter in relation to the appellants’ application for a stay of the respondent’s judgment is that the appellants offered to settle the action prior to trial in accordance with R.S.C. O. 26.  The amount offered was $250,000.  The appellants contend that, if the respondent’s judgment was reduced below that amount, the costs order in his favour would be altered to reduce the costs which he is presently entitled to recover, and in addition he would be ordered to pay costs estimated at $70,000.  Of course, if he lost his action against Chevron, the respondent would probably be ordered to pay all, or almost all, of its costs of the entire proceedings, including the first trial.  While the respondent is certain of a judgment against Ms Cosgrove, costs payable by him would reduce the amount otherwise recoverable by him for damages and costs.

Although it is neither possible nor appropriate to express a concluded opinion, Chevron has raised an arguable case that the judgment against it was induced by fraud.  That being so, in our opinion, the judgment against Chevron should be stayed.  The allegations which form the basis of the claim of fraud are set out in sub-para. 2(a) of the notice of appeal, and the issues of fact there raised should be determined by a Judge of the Trial Division, and remitted^[1] to the Trial Division for that purpose.  We do not consider any further directions with respect of the trial of those issues are needed from this Court.

It would be desirable if those issues were determined by the Trial Division Judge who gave the judgment against Chevron.  His Honour is in a unique position in that he could not only determine the issues of fact but could also state whether his judgment against Chevron was procured by fraud, and, if it was, whether he would nonetheless have concluded that negligence by Chevron contributed to the respondent’s injuries.  If necessary, his Honour could also determine Chevron’s share, if any, of the responsibility for those injuries in any new circumstances.  Those additional findings would facilitate the disposal of the appeal.^[2]  However, since the possibility that such a course would offend s. 70 of the Supreme Court Act of 1991 and might expand the litigation between the parties, it seems preferable that the remitted issues be determined by a different Trial Division Judge.

Because of the superficially curious arrangement between the appellants’ respective insurers, a stay of the judgment against Chevron will have little or no practical effect unless the respondent’s judgment against Ms Cosgrove is also stayed.  However, different considerations apply to the application for a stay of the judgment against Ms Cosgrove. 

The trial judge made a protection order in respect of the respondent under which his judgment must be paid to the Public Trustee, who has undertaken to retain $150,000 pending determination of the appeal.  That leaves $127,560 available for disbursement.  If the respondent’s judgment against Ms Cosgrove was satisfied in full prior to the determination of the appeal, then, subject to two qualifications, the insurer which has agreed to indemnify Ms Cosgrove would be at risk for that amount, adjusted to take account of costs orders in favour of and against the respondent, including both costs of the appeal and associated proceedings and any new trial.  Approximately $85,000 would be required to be refunded to statutory authorities from the respondent’s judgment, and, if his judgment against Chevron was set aside and his judgment against Ms Cosgrove was reduced on appeal, some at least of the amounts paid to the statutory authorities might be re-refunded.  Secondly, the respondent’s solicitors have undertaken that they will repay any sum received by them on account of costs under the judgment, including the judgment for costs, to the extent that any such sum is an overpayment because of orders made consequent upon a successful appeal.  Nonetheless, there seems to be a significant risk that the insurer which is to indemnify Ms Cosgrove will be financially disadvantaged if the judgment against Ms Cosgrove is satisfied.

It is difficult to quantify the amount at risk, but at least a partial stay, limited to the $150,000 which otherwise would be retained by the Public Trustee, seems a desirable course in the special circumstances,^[3] i.e., seems preferable to the full satisfaction of the judgment against Ms Cosgrove on the basis that the Public Trustee will retain that amount and refund it if necessary.  If all or any of the amount to which such a stay relates has subsequently to be paid, the respondent’s judgment will carry interest so that he will not be disadvantaged.

An extension of the stay to include the amount of the refunds to be made to statutory authorities would leave about $40,000 immediately payable.  However, if only $40,000, or a little more, were paid to the Public Trustee on behalf of the respondent immediately, that amount would be subject to obligations to make refunds to the statutory authorities, leaving nothing for any other purpose. 

We do not consider that there is a strong case for a stay in respect of more than $150,000, especially having regard to the solicitors’ undertaking, referred to above.  In these circumstances, it seems appropriate to have regard to the strength of the appellants’ contention that, if the judgment against Chevron is set aside, there will have to be a re-trial and might be a re-apportionment of the respective responsibilities of Ms Cosgrove and the respondent for his injuries.  In our opinion, that argument is far from compelling at first sight.^[4]  A final opinion on that question is not called for at this time.  However, the appellants have not convinced us that the strength of their case is such that the circumstances are sufficiently special to justify any stay of the respondent’s judgment beyond that which we have indicated above, i.e., in an amount of $150,000.

In summary, the orders which we consider should be made are as follows:

1. Stay the judgment against Chevron.
2. Stay the judgment against Ms Cosgrove, limited to $150,000.
3. Remit the issues raised by para. 2(a) of the notice of appeal to the Trial Division.
4. Costs of the present application reserved for the consideration of this Court when it determines the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 453 of 1998

Brisbane

Before Fitzgerald P.

Davies J.A.

Ambrose J.

[Cosgrove & Anor v Johns]

BETWEEN:

JENNIFER MARGARET COSGROVE

(First Defendant) (First Applicant)  Appellant

AND:

CHEVRON QUEENSLAND LIMITED

(A.C.N. 009 678 997) (In Liquidation)

(Second Defendant) (Second Applicant)  Appellant

AND:

DALLAS MIDGLEY JOHNS

(Plaintiff)  Respondent

REASONS FOR JUDGMENT - B. W. AMBROSE J.

Judgment delivered 29 May 1998

This is an application by appellants against a judgment delivered on 12 December 1997  for a stay of execution of that judgment pending the determination of their appeal. I will  state briefly the rather unusual facts relevant to this application.

In 1993 the plaintiff brought action against both defendants for damages for negligence in respect of injuries he received when  struck by a motor vehicle driven by the first defendant. When injured by that motor vehicle he was in a grossly intoxicated condition which it was held upon trial was responsible for him moving in front of the motor vehicle which caused his injury. It was his case that the second defendant which conducted an hotel was also guilty of negligence which was a cause of his injury in supplying him with alcohol when he was in an obviously intoxicated condition and then permitting him to leave its hotel premises to make his way home via a public highway passing that hotel. 

The plaintiff was injured on the evening of 24 April 1990.

The writ issued on 20 April 1993.

Initially each of the defendants appeared separately represented by different firms of solicitors.

However on 28 February 1995 the solicitors for the second defendant gave notice of the fact that that firm had been appointed also to act as solicitors for the first defendant.

Thereafter all proceedings taken on behalf of the first and second defendants were conducted by the same firm of solicitors. Upon trial the same firm of solicitors and the same counsel appeared for both defendants.

It is clear that no contribution notices were exchanged between the defendants. This is unsurprising because it would be difficult to imagine the same legal representatives representing two defendants where there was a conflict of interest between them.

After a four day trial, the learned trial Judge found that each of the first and second defendants was guilty of negligence which resulted in the plaintiff’s injury and that he was guilty of contributory negligence.

The question of contributory negligence was debated upon trial as was the negligence of each of the two defendants. However, contribution proceedings not having been taken by either of the defendants the question of apportionment of responsibility between them was never argued or debated before the learned trial Judge.

The reason for this rather unusual situation was that at an early stage in the proceedings the insurers of the first defendant and the second defendant agreed that they should be represented by the same solicitors and counsel. Obviously, this could properly be done only in the event of there being no conflict of interest. 

This position was reached as the result of an agreement made between Zurich Insurance, the insurer of the second defendant and FAI Insurance, the insurer of the first defendant, that Zurich Insurance would indemnify FAI Insurance in respect of any judgment,  obtained by the plaintiff in that action.

Upon the hearing of the application for stay of execution, it was conceded by counsel for both defendants that the second defendant’s insurer had indeed agreed to indemnify the first defendant’s  insurer.

In the formal judgment declared on 12 December 1997, it was adjudged simply that -

“the plaintiff recover against the defendants the sum of  -- together with costs --”

It was on that day further ordered that the Public Trustee be appointed to manage the balance of damages payable to the plaintiff “by the first and second defendants under the judgment in this action”.  However, on 23 February 1998, a Notice of Appeal was filed by both defendants after time to appeal was extended.   The grounds of appeal are essentially that the judgment was obtained by fraud. Stated briefly, it is alleged that the plaintiff procured people to give false evidence to support his case against the second defendant; particulars are provided in the Notice of Appeal. In the alternative, it is asserted that fresh evidence has been discovered to the effect of the particulars of fraud given and it is contended -

“it cannot reasonably be supposed that judgment would have been given against the second defendant or that liability as between the plaintiff and the first defendant would have been apportioned as it was had such evidence been produced at trial”.

There is no suggestion or contention that the case brought by the plaintiff against the first defendant was tainted by fraud.

One of the arguments advanced to support the application for a stay was that should the second defendant succeed in establishing fraud against the plaintiff with respect to the case brought against it, then arguably the plaintiff could maintain a judgment only against the first defendant. It is said that in those circumstances there would inevitably have to be a new trial involving a fresh apportionment between the plaintiff and the first defendant.

It seems clear that the “apportionment” by the trial judge of responsibility for the plaintiff’s injury between the first defendant and the second defendant could not be made unless there were contribution proceedings before him. It seems on the material that there were no such contribution proceedings, the reason being that the second defendant had agreed to indemnify the first defendant against responsibility under any judgment and this explains why the case was conducted by the same legal representatives appearing for both defendants.

In my view the ground of appeal in para. 2(e) of the notice of appeal is only supportable if arguably apportionment of responsibility for contributory negligence might  be greater than 45% for the plaintiff if negligence were established only against the first defendant.

As it was pointed out on behalf of the plaintiff, from a practical point of view it would not matter to him (subject to the question of costs) whether the second defendant succeeded in having judgment against it set aside. It would not matter because he recovered judgment against each of the defendants for the full amount of the damages he was awarded. In view of the indemnity agreement between the insurers it would not seem to matter to the second defendant’s insurer either.

The allegations of negligence against each defendant were so disparate one might have expected each to have been separately represented to permit the question of contribution between them to be argued should both be found liable in negligence to the plaintiff. Had contribution proceedings been taken between the defendants and had the learned trial judge apportioned responsibility having regard in those proceedings then ground 2(b) of the notice of appeal might be more strongly arguable.  However the plain fact is that the case was conducted on the basis that there would be no contribution proceedings between the defendants and in fact there were not. The apportionment indicated in the reasons for judgment of the learned trial judge was obviously made in ignorance of the agreement reached between the two insurers that the second defendant’s insurer should completely indemnify the first defendant’s insurer against liability in respect of any judgment which the plaintiff might recover in the action.

I have taken the opportunity to read the recorded oral submissions as well as the  written arguments submitted to the learned trial judge and it is clear that the submissions advanced on behalf of each defendant were that the plaintiff had failed to establish any negligence against either defendant. Unsurprisingly there is no argument at all concerning apportionment of any responsibility for the plaintiff’s injury between the defendants. Counsel representing the plaintiff of course simply directed submissions to show that each defendant was guilty of negligence and no effort was made to consider questions of any possible apportionment between them.

In his reasons for judgment delivered 12 December 1997 the learned trial judge purported to apportion responsibility for the plaintiff’s injury at 45% to the plaintiff, 30% to the first defendant and 25% to the second defendant.

It is clear from the terms of the orders actually made that in spite of the purported apportionment of responsibility between the first defendant and the second defendant in his reasons for judgment no order to that effect was made.

When delivering judgment his Honour said:

“Nothing was said to me by Mr Williams about any question of contribution between the two defendants. I don’t know whether you want an order in that respect but the liberty to apply` will cover that if you do.”

He continued:

“The plaintiff was found 45 per cent to blame, incidentally, for his own troubles and the other was divided between the other two parties, not exactly equally.”

...

I think it was 30 and 25. I think that’s right. ...”

It is clear therefore that the learned trial Judge made no order apportioning responsibility between the two defendants because not merely were there no contribution proceedings in existence between them but he was not ever asked to make such an apportionment. 

Consideration of the authorities in my view makes it far from clear that even if the appellants succeeded in establishing that the plaintiff’s judgment against the second defendant was so tainted by fraud that it ought be set aside and there be a new trial as to the second defendant’s liability it would necessarily follow that there should be a new trial also with respect to the first defendant’s liability to the plaintiff. Samuels JA in Barisic v Devenport and Others [1978] 2 N.S.W.L.R. 111 at 152E-154B dealt with the basis upon which an apportionment for contributory negligence is made where a plaintiff suffers injury as a consequence of the negligence of a number of concurrent but not joint tortfeasors. After pointing out that:

“apportionment between the plaintiff and the defendants must be kept separate from apportionment of contribution between the defendants inter se...

his Honour proceeded -

“In my view any comparison can be made only by comparing the plaintiff’s fault on the one hand with the combined fault of the defendants viewed as a unit on the other.”

After adverting to the difficulty in combining the fault of the plaintiff leading to his injury with the fault of two independent actors combined, His Honour asked:

“How in other words does one amalgamate two independent actors into one reasonable unit and then attribute to this chimera one degree of responsibility for two separate acts which may have differed widely in their individual degrees of culpability. In my judgment it is impossible satisfactorily to assess the extent to which the conduct of an artificial unit fell below some strictly fictitious combined standard of care. The only available normative standard of care is that applicable to each defendant but ex hypothesis the defendant’s individual departures are not relevant.”

His Honour continued at 153D:

“The principle I would apply is this. In cases where two or more independent concurrent tortfeasors are sued the extent to which the plaintiff’s damages should be reduced on account of his negligence should be that which is just and equitable having regard to the degree of his departure from the standard of the reasonable man -- so the question involves an assessment of the plaintiff’s inadequate response to the danger created by the combined acts of the defendants and the extent to which that response represented a departure from the standard of care which the plaintiff should have observed.”

In Karamalis v Commissioner of South Australian Railways (1977) 15 A.L.R. 629 in the joint judgment of Stephen and Aickin JJ at 634 it was observed:

“No doubt when an appellate court takes the view that one of two aspects of a defendant’s conduct did not contribute to the accident though the trial judge had thought that both did so contribute the question of apportionment of responsibility should be re-examined -- but it would plainly be wrong to treat the elimination of one of the two causes as necessarily requiring that the degree of responsibility should be reduced by one half.

In Burton v Melbourne Harbor Trust Commissioners [1954] V.L.R. 353 the Victorian Full Court considered a case where one of a number of tortfeasors successfully appealed against a finding of negligence. A new trial was given to that successful appellant. Gavan Duffy J at p.

382 observed:

“The cases establish that where a judgment is set aside as against one tortfeasor the verdict and judgment against any other defendant based on the same joint tort must also be set aside even if he has not appealed. ...

In the present case there was evidence that would have justified a finding either that the two companies were joint tortfeasors or that each was guilty of a separate tort. It is obviously of no assistance to Mr Campbell’s contention that the mis-direction on which the court allowed the appeal of the British India Steam Navigation Co. Ltd. was directed to the consideration of a separate tort alleged against it.

It seems to me sufficiently clear that if the jury’s verdict against the British India Steam Navigation Co. Ltd. was founded on a tort jointly committed by it and United Stevedoring Pty Ltd there should be a new trial of both tortfeasors even though one of them had not appealed, but the same result does not necessarily follow if the verdict might have been based either on a joint or a several tort and it is impossible to tell from the general verdict given by the jury on which it was based.

I know of no authority directly in point but on the whole I think the proper approach to an application based on such a purely technical rule is to order a new trial only if the applicants can satisfy the court that in fact the verdict which has already been set aside is based on a tort in respect of which the successful appellant and the applicant were joint tortfeasors. In this case the United Stevedoring Pty Ltd cannot do this and its application must fail.”

In Fitzgerald v Lane [1989] 1 AC 328 Lord Ackner approved and adopted the observations in the judgment of Denning LJ in Davies v Swan Motor Co (Swansea) [1949] 2 KB 291 at 325 where he said:

“The act (the contribution legislation) seems to contemplate that if the plaintiff’s own fault was one of the causes of the accident his damages are to be reduced by the self same amount as against any of the others whose fault was a cause of the accident whether he sues one or more of them and they bear the amount so reduced in the appropriate proportions as between themselves”. 

His Lordship said he also derived considerable assistance from the decision of Samuels JA in Barisic v Devenport to which I have referred.  

In my view it is both unnecessary and undesirable to determine on this application whether should the appeal of the second defendant succeed there will inevitably or even may be a re-consideration of the apportionment made for contributory negligence at trial or whether should there be a new trial all issues of liability and contributory negligence will be re-tried.  No doubt that is a matter which upon appeal will require consideration of the many authorities to which the applicants and the respondent have referred. In my view it is unnecessary to express any view other than that such a result, if the second defendant succeeds on the appeal, may be arguable. Undoubtedly there would be reasons of policy to avoid having re-litigated the issue of negligence and contributory negligence as between the plaintiff and the first defendant, merely on the ground that arguably the plaintiff ought be required to bear a greater responsibility for his injury if it was caused solely by the fault of the first defendant. However, this is a matter which it is inappropriate to further consider on this application. 

The appellants offered to settle the action prior to trial by paying to the respondent the sum of $250,000. In fact the respondent recovered a net judgment in the sum of $277,000. It is argued on behalf of the appellants that should the appeal succeed with the result that the respondent ends up with a judgment eventually for less than $250,000 then he will have to pay to the appellants costs incurred subsequent to his rejection of the Order 26 offer which are estimated at $70,000. It is further contended that if the appellants succeed the second defendant at least would not be required to pay the costs of both trials if one was shown to be tainted by the plaintiff’s fraud.  Of the $277,000 awarded to the plaintiff, approximately $85,000 in refunds is to be made to statutory authorities which will leave a balance of approximately $192,000. 

The Public Trustee has agreed to hold $150,000 of the balance funds received on behalf of the plaintiff under the protection order made pending determination of this appeal.

It is only in special circumstances that a stay of execution of a judgment will be ordered - Federal Commissioner of Taxation v Myer Emporium Ltd [No. 1] (1986) 160 CLR 220 at 222-3 per Dawson J.

It is clear that interest will run on the judgment debt at the rate of 10% per annum while the judgment remains unsatisfied. If the appeal process is delayed then to that extent the respondent will be protected. On the other hand, it is clear that the respondent is impecunious  and should he fail upon the appeal and the judgment against the second defendant be set aside, he will have the benefit only of the judgment he obtained against the first defendant. If that judgment also is set aside then presumably there will be a new trial substantially for the purpose of re-litigating the question of negligence on the part of the first defendant, for the purpose of arriving at a new apportionment for contributory negligence on the part of the respondent.  Even if there be a new trial between the respondent as plaintiff and the first applicant as defendant, at the end of the day on the material it seems unlikely that he would recover in that action less than the damages he recovered in the judgment under appeal. For the applicants it is pointed out however that should there be a new apportionment in which he is required to bear more than 50% of responsibility for his injury, then the Order 26 offer made would have the consequence of him having to bear the costs incurred after the making of that offer.

At the end of the day I am unpersuaded that there should be a stay on the judgment recovered against the first defendant. Upon the whole of the material I am unpersuaded that the value of the undoubted cause of action which he will have against the first defendant even if the applicants succeed in persuading this court that there should be yet another trial of liability between the respondent and the first applicant due to any fraud established by the second applicant in respect of the action under appeal, will be less than that of the judgment under appeal and I am unpersuaded that the costs incurred and to be incurred by the second applicant insofar as the appeal is pursued only for the benefit of the second applicant is likely to exceed the balance of the judgment which the Public Trustee has agreed to hold pending the outcome of the appeal which is approximately $150,000.

In the light of the undertaking by the Public Trustee to hold that sum pending the determination of this appeal and in the light of the undertaking of the solicitor for the respondent to refund moneys to be held by him for the purpose of paying witnesses, if necessary. I am unpersuaded that the circumstances in this case are so exceptional as to warrant the stay of execution of judgment against the first applicant. The nature of the appeal by the second applicant however is itself an exceptional circumstance which upon the facts which have so far emerged warrants a stay of execution against the second applicant.

The applicants also seek directions concerning the determination of the issues of fraud raised in the Notice of Appeal.

Counsel for the respondent suggested that the appropriate way to have determined the allegations of fraud was to commence a new action to set aside the judgment on that ground rather than to proceed to this court by way of appeal.

While perhaps observations in Jonesco v Beard [1930] AC 298 may be called in aid to support that proposition, nevertheless in the majority joint judgment of the High Court in McCann v Parsons (1954) 93 CLR 418 at 426 it was observed:

“ Indeed there was never any hesitation at common law to use the power to grant a new trial once it appeared from further evidence that the verdict had been obtained by putting forward a false case. It would have been remarkable if the courts of common law had refused the one practical remedy they could give and had turned the complaining party away to file a bill in Chancery to restrain the proceedings at law.”

In that case which proceeded by way of appeal the appeal was allowed, the verdict set aside and a new trial ordered. 

In my view therefore there is clear authority for the proposition that a party to an action may appeal to this court against a judgment on the grounds that it was obtained by the fraud of another party. 

It is interesting to note that in McCann v Parsons there was a good deal of fresh evidence before the court from which evidence of fraud might be inferred. Criminal proceedings had been taken against the respondent and the appellant who was a witness she called to support her claim; and evidence had been given in committal proceedings charging each with conspiracy. The appellant had been tried on a charge of false pretences and acquitted. It was the appellant’s insurer of course who conducted the appeal seeking a new trial on the basis of the fresh evidence which emerged from the criminal proceedings to which I have referred.

Before this court the material so far produced is quite insufficient to permit any judgment to be reached as to whether the judgment below ought be set aside and a new trial ordered.

It is conceded by the applicants and the respondent that it would be appropriate for this court to have a judge of the Trial Division consider evidence the parties may wish to call on the issue of the alleged fraud and make findings and/or a report on that evidence..

The power of this Court to make an order of the sort proposed is to be found in s. 68(3) and (4) of the Supreme Court of Queensland Act 1991.

Section 68(3) of that Act provides:-

“If a proceeding is pending before the Court of Appeal, the Court of Appeal may on application by a party or of its own motion order that the whole or a part of the proceedings be remitted to the Trial Division for the determination (by trial or otherwise) of the proceedings or any question of fact or law arising in the proceedings.”

Under s. 69(1)(b)(iii) the determination of a Trial Division Judge under s. 68(3) is subject to appeal.

Under s. 68(4) however this Court is not obliged to accept the determination of a Trial Division Judge. That section provides that:-

“(4)Subject to s. 69 the Court of Appeal may accept any determination of the Trial Division in whole or part.”

I have discovered no authority on a similar statutory provision in any other jurisdiction which permits an appellate Court if minded to do so, “to accept” a factual determination made upon trial “in whole or part”. In the usual case an Appeal Court will accept that a factual determination was made upon trial and consider whether as a matter of law upon a “rehearing” it is supportable.

I would think it would be in only the most exceptional circumstances that this Court would only “accept in part” a factual determination made “upon trial” pursuant to s. 68(3) where it was not persuaded upon appeal under s. 69(1)(b)(iii) that the finding was either as a matter of law or upon a “rehearing” unsupportable.

As a matter of principle I have difficulty in construing s. 68(4) as applying to a determination by trial. I have no difficulty in construing it as applying to a determination “otherwise than by trial” within the meaning of s. 68(3) albeit that in its terms s. 69(1)(b)(iii) seems to apply to a determination “by trial or otherwise” under s. 68(3).

To the extent that a determination upon trial of a question of fact arising upon appeal “may be accepted” in whole or part under s. 68(4), it would seem that the legal effect of the determination is merely that of a report upon an inquiry conducted by a trial judge for consideration by this Court.

In my view it is this Court (rather than a trial Judge) which should consider whether the evidence justifies setting aside the judgment under appeal and ordering a new trial. I conclude that in the present case this Court ought be informed “otherwise than by trial” pursuant to s. 68(4).

To the extent that a trial Judge to whom a question of fact arising upon appeal is remitted pursuant to s. 68(3) is sitting in judgment on a question arising upon appeal, it is my view that pursuant to s. 70 the trial Judge whose judgment is under appeal may not sit upon a reference under that sub-section. If that view is incorrect, it is quite undesirable upon the facts of the present case that the trial Judge whose judgment is under appeal ought be required or even permitted to determine whether his judgment was procured by the fraud of one of the parties to the action which he tried.             

Having regard to the grounds of appeal, in my view the following questions ought be  reported on by a Judge of the trial division of this Court pursuant to s. 68(3) of The Supreme Court Act 1991 after that Judge has inquired into the matters  relevant to their determination:-

1. Was the judgment appealed from obtained against the second appellant and/or the first appellant by fraud in the following particulars:

1. In or about the early months of 1994 did one Bruce Donald Anthony orally agree with the plaintiff to give false evidence on the plaintiff’s behalf and to find others to give false evidence in return for the plaintiff’s promise to pay him the sum of $20,000;
2. Did the said Bruce Donald Anthony give any, and what false evidence at the trial.
3. Pursuant to the agreement referred to in (i) did the said Bruce Donald Anthony procure one Ian Robert Schultz and/or one Carol Sole to give any- and what false evidence at trial between the respondent and the two appellants;
4. Did the said Ian Robert Schultz and/or the said Carol Sole give any and what false evidence at the trial.

2. That the inquiry be conducted by considering evidence upon oath or affirmation adduced in accordance with the rules of evidence.
3. There should also be given the following directions:-

1. That the above issues of alleged fraud be reported on speedily by a judge of the trial division of this Court;
2. That the appellants provide to the respondent forthwith and certainly not later than one month prior to the date set for inquiry into the issues a signed copy of the statement of evidence to be given by each witness to be called to support the appellant’s assertion of fraud on the part of the respondent;
3. That the respondent within fourteen days of the receipt of such statements from the appellants provide signed statements of all witnesses which the respondent proposes to call on those issues;
4. That the appellants and the respondent forthwith provide to each other copies of all documents which they propose to use as evidence upon the inquiry or upon the basis of which it is proposed to cross-examine any witness upon the inquiry or in respect of which it is proposed to have any witness upon the inquiry refresh his or her memory;
5. That the report of the trial judge together with all evidence adduced upon the inquiry be forthwith transmitted to this Court.

I would reserve the costs of this application for directions.

I would order that the costs of the application by the first applicant for stay of execution be the respondent’s costs of the appeal. I would reserve the costs of the application for stay by the second applicant.