Rockett v The Proprietors of “The Sands” BUP 82
[2001] QCA 99
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- Unreported Judgment
- Appeal Determined (QCA)
- Rockett v The Proprietors of “The Sands” BUP 82[2001] QCA 99
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Rockett v The Proprietors of “The Sands” BUP 82[2001] QCA 99
Reported at [2002] 1 Qd R 307
Rockett v The Proprietors of “The Sands” BUP 82[2001] QCA 99
Reported at [2002] 1 Qd R 307
SUPREME COURT OF QUEENSLAND
CITATION: | Rockett & Anor v The Proprietors of “The Sands” BUP 82 [2001] QCA 99 |
PARTIES: | LYNETTE JOY ROCKETT (plaintiff/appellant) ROSS ROBERT DEVENCORN (plaintiff/appellant) v THE PROPRIETORS “THE SANDS” BUP 82 (second defendant/respondent) |
FILE NO/S: | Appeal No 4355 of 2000 DC No 3518 of 1998 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 20 March 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 6 March 2001 |
JUDGES: | McPherson and Williams JJA, Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: |
|
CATCHWORDS: | APPEAL – PRACTICE AND PROCEDURE - QUEENSLAND – POWERS OF COURT – further evidence – Whether a judgment of the Court of Appeal constitutes a “fact” or “facts” under rule 668(1)(a) UCPR. PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – Discontinuance – Effect of consent order dismissing an appeal on later application to vary judgment. Body Corporate and Community Management Act 1997 (Qld), s. 259 Defamation Act 1889 (Qld), s 16, s 17 Uniform Civil Procedure Rules 1999 (Qld), r 668, r 689, r 762 Concut Pty Ltd v Worrell (2000) 75 ALJR 312, considered Harvey v Phillips (1956) 95 CLR 235, considered K G K Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1985] 2 Qd R 40, followed Pavlides v Jensen [1956] Ch 565, distinguished Rayner v Rayner [1968] QWN 42 Stubberfield v Brisbane City Council [1996] QCA 184, distinguished Woods v Sheriff of Queensland (1895) 6 QLJ 163, considered |
COUNSEL: | P Lyons QC with P J Favell for the appellants J S Douglas QC with M Varitimos for the respondent |
SOLICITORS: | Thynne & Macartney for the appellants Heiser Bayly and McDonald for the respondent |
- McPHERSON JA: By plaint no 546 of 1995 in the District Court, Mrs Rockett and her husband Mr Devencorn sued Mrs Anthony and The Proprietors of "The Sands" BUP 82 for damages for defamation. All of the individual parties to the action were proprietors of units in "The Sands" and, as such, members of the body corporate that was being sued as the second defendant in the action. The trial took place in the District Court at Southport and extended over some 15 sitting days. On 24 July 1998 his Honour Judge Robin gave judgment against both defendants for damages for Mrs Rockett in an amount of $20,000, and for Mr Devencorn in an amount of $1,000. On 7 August 1998 he ordered that the defendants pay the plaintiffs' costs of the action.
- Mrs Anthony, who was dissatisfied with the judgment against her, appealed against it on 19 August 1998. Her appeal (no 7664 of 1998) was allowed with costs by the Court of Appeal, which, on 22 October 1999, set aside the judgment in the District Court and substituted for it a judgment in favour of the first defendant Mrs Anthony with costs. (Anthony v Rockett [1999] QCA 434).
- Some time before the hearing of that appeal, the body corporate had also lodged an appeal against the judgment which had been given against it in the District Court. It was lodged on 21 August 1998 and was designated appeal no 7710 of 1998. On 10 November 1998 that appeal was dismissed by consent of the parties to it. Mrs Anthony's appeal (no 7664 of 1998), on the other hand, went on to be heard and allowed with the result already mentioned.
- Having studied the reasons of the Court of Appeal delivered on 22 October 1999, the body corporate formed the conclusion that those reasons applied as much to the action and judgment against the second defendant as to the first defendant Mrs Anthony. Advice was sought about how the result in Mrs Anthony's appeal could be extended to the judgment against the second defendant in the District Court action. It was decided to use the procedure in Rule 668(1)(a) of the Uniform Civil Procedure Rules. On 22 February 2000, the body corporate, which is now the respondent to this appeal (no 4355 of 2000) by Mrs Rockett and Mr Devencorn, applied to the District Court for orders that the judgment given in 1998 against the second defendant be set aside, and that instead there be judgment with costs for the second defendant against the plaintiffs in that action.
- The provisions of Rule 668 under which the application was made are as follows:
"Matters arising after order
668.(1) This rule applies if -
(a)facts arise after an order is made entitling the person against whom the order is made to be relieved from it; or
(b)facts are discovered after an order is made that, if discovered in time, would have entitled the person against whom the order is made to an order or decision in the person's favour or to a different order.
(2)On application by the person mentioned in subrule (1), the court may stay enforcement of the order against the person or give other appropriate relief.
(3)Without limiting subrule (2), the court may do one or more of the following -
- direct the proceedings to be taken, and the question or issue of fact to be tried or decided, and the inquiries to be made, as the court considers just;
- set aside or vary the order;
- make an order directing entry of satisfaction of the judgment to be made."
- The body corporate's application under Rule 668 came before His Honour Judge Wylie in the District Court at Brisbane. His Honour held that the decision of the Court of Appeal in appeal no 7664 of 1998 by Mrs Anthony was, within the meaning of Rule 668(1)(a), a "fact" arising after an order had been made, namely the judgment which in 1998 had been given by Robin DCJ against the body corporate in the District Court action at Southport. That "fact", it was submitted, entitled the body corporate, as the person against whom the judgment had been given, to be relieved from it. In those circumstances the District Court was, his Honour held, authorised by Rule 668(2) and 668(3)(b) to set aside or vary the judgment and order of Robin DCJ given in 1998 in that action in the District Court. Wylie DCJ accordingly set aside the judgment against the body corporate in favour of Mrs Rockett and Mr Devencorn and the order for costs, and instead gave judgment in that action dismissing their claims against the body corporate with costs. It is against this order of Judge Wylie made on 20 April 2000 that Mrs Rockett and Mr Devencorn are now appealing.
- Although not without an element of ingenuity, I consider the reasoning that led to that result to be misconceived. In the first place, it seems to me to be doubtful whether the decision of the Court of Appeal is, properly speaking, a "fact" for the purpose of Rule 668(1)(a). It appears to be more in the nature of a judicial act having an operation and effect of its own. Assuming, however, that it may nevertheless constitute a fact for the purpose of Rule 668(1)(a), the difficulty is that, considered in isolation, it does not reveal anything that would entitle the body corporate to be relieved from the judgment given against it by Robin DCJ. From the fact that the judgment against the first defendant Mrs Anthony was set aside on appeal it does not follow that the judgment against the second defendant body corporate in the same action must suffer the same fate. To meet this objection, the body corporate in the application before Wylie DCJ relied on the pleadings in the District Court action to show that the issues in the claim against Mrs Anthony were in all respects the same as those in the action against the body corporate, so that the result should also have been the same. To meet a further possible objection that, even so, it is impossible to be sure on what basis Mrs Anthony had succeeded in her appeal, the appellant relied on the reasons delivered by the Court of Appeal in allowing that appeal, as well as those of Robin DCJ in his judgment at first instance. From this, it emerges that the reason why the judgment against her was set aside was that, contrary to the finding of Robin DCJ at the trial, the Court of Appeal was not satisfied that, on the evidence, Mrs Rockett and Mr Devencorn had discharged the burden imposed on them by s 17 of the Defamation Act 1889 (Qld) of proving that, in terms of 16(1)(e) of the Act, Mrs Anthony had acted without good faith in publishing the defamatory matter complained of; or, to express it in another way, that she had been actuated by spite or ill will in publishing that matter. And since, in making the publication in question, Mrs Anthony was acting on behalf of the body corporate, the same consequence ought, it was submitted, to follow in the case of the second defendant as of the first defendant, which was that the District Court judgment should be set aside.
- I am, however, not persuaded that the reasons of the Court on appeal in Anthony v Rockett [1999] QCA 434 can simply be transposed in this fashion from one defendant to the other. Doing so involves treating as a "fact" or "facts" under Rule 668(1)(a) not only the judgment as such but also the reasons for that judgment. Judicial reasons for a decision are not facts, but opinions; and even if the opinions of experts (as Judges of Appeal presumably are) may for some purposes assume the character of facts, it is not that function that is served by judicial reasoning. Its function is to justify the decision or judgment arrived at in the particular proceedings before the court. It is true that the notices of appeal lodged by Mrs Rockett and by the body corporate were in the same or similar terms, but it is impossible to predict with confidence that the same result would inevitably have followed if the body corporate had continued with its appeal no 7710 of 1998.
- Whether or not that is so, the appeal by the body corporate was confronted by another and much more serious obstacle than any faced by Mrs Anthony in her appeal. It was that the appeal by the body corporate had been dismissed by consent on 10 November 1998. On that date a notice was filed in appeal no 7710 of 1998, which records that "the abovenamed second appellant", (which was the body corporate), "consents to an order of this Honourable Court that:
- this appeal be dismissed by consent;
- that there be no order as to costs."
The notice is signed by the solicitors acting for the body corporate and for Mrs Rockett and Mr Devencorn, and it bears the seal of the Court of Appeal together with the authenticating signature of the Deputy Registrar beneath the indorsement "Order as per Consent". The order was made under the power conferred by O 70, r 5 of the Rules of the Supreme Court, of which subrule (3)(a) provided that a memorandum in that form once it was filed and sealed by the Registrar had the effect of an order of the Court. The Rule as originally inserted by an amendment on 17 January 1985, and, after further amendment, now appears as Rule 762(5) of the Uniform Civil Procedure Rules..
- The consent order dismissing the appeal that was filed and sealed on 10 November 1998 would, while it stood and stands, be fatal to any attempt by the body corporate to prosecute appeal no 7710 of 1998. Courts have only limited powers to set aside their orders, and the power to do so is even more restricted when the order in question has been made by consent of the parties to it; at least that is so when a compromise is involved, as it plainly was here. The parties to the notice filed on 10 November 1998 agreed that the appeal should be dismissed and that there be no order as to the costs that either of them might otherwise have claimed against the other. In Harvey v Phillips (1956) 95 CLR 235, 243-244, the High Court said that the question whether a compromise embodied in a consent order is to be set aside "depends on the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it". This passage was recently referred to in Concut Pty Ltd v Worrell (2000) 75 ALJR 312, 391; see also Rayner v Rayner [1968] QWN 42 and Spencer Bower, Turner & Handley, The Doctrine of Res Judicata, 3rd ed., §§40, 363. No such entitlement has been suggested here and no application has been made to set aside the consent order made on 10 November 1998.
- To discover how the body corporate came to consent to the dismissal of its appeal it is necessary to return to the reasons of Wylie DCJ on the application under appeal. Under s 259(1) of the Body Corporate and Community Management Act 1997 (Qld), which in this respect regulated the affairs of "The Sands", a body corporate of this kind may start a proceeding only if authorised by a special resolution of the body corporate. What happened in this instance is that the notice of appeal in no 7710 of 1998 was filed on or about 21 August 1998 on the authority of a committee of the body corporate at a meeting held on 19 August 1998. At that time no special resolution under s 259(1) had been proposed or passed, and on 26 August 1998 an adjudicator acting on the application under that Act of a unit proprietor, Mr Norman Lee, made an interim order that the body corporate not proceed with the appeal that had been lodged until a final order was made. What the adjudicator's reasons contemplated was that there should first be an extraordinary general meeting of the body corporate to consider the matter. Such a meeting was held on 2 November 1998, at which a motion was proposed as a special resolution that the appeal be authorised. The motion failed to achieve 75% of the votes cast and so was lost. The steps which had been taken by the committee to appeal were therefore not authorised, and the body corporate's consent to that appeal being dismissed was in consequence filed on 10 November 1998.
- Wylie DCJ evidently considered that this outcome had been brought about by the exercise by Mrs Rockett and Mr Devencorn of their votes in opposition to the motion to appeal; but, although their votes certainly contributed to the result, the evidence before his Honour did not in fact demonstrate that they were decisive. Whether there were or are remedies, statutory or otherwise, that might have been adopted to impugn the voting or the result of it at that extraordinary general meeting (cf Pavlides v Jensen [1956] Ch 565), is not a question that falls to be considered here. The decision of the body corporate stands unless or until it is invalidated or set aside. As I see it, his Honour used the voting outcome as a factor that favoured the exercise of his discretion under Rule 668(2) to "give … appropriate relief" as he did in setting aside the judgment given against the body corporate by Robin DCJ in 1998. On the material before him, it was not in fact established that the votes of Mrs Rockett and Mr Devencorn were decisive, and the contrary may be true.
- There is, however, another, and, in my view, fatal objection to the application under Rule 668 that was made to and granted by Wylie DCJ to set aside that judgment. Rule 668 is in all material respects a re-enactment of O 45, r 1 of the Rules of the Supreme Court 1900. Since the decision in K G K Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1985] 2 Qd R 13, it has been applied in a number of cases in which relief has been sought and granted against the operation of "self-executing" orders, because of facts arising after an order was made. Little advantage is to be gained from reviewing those or other decisions because in none of them was O 45, r 1 employed to set aside a judgment as a substitute for an appeal against it on the ground that the judgment was incorrect, or that it was contrary to or inconsistent with some other decision of this or another Court. Indeed there is some authority to the opposite effect: see Stubberfield v Brisbane City Council [1996] QCA 184, 14 June 1996, at 3, 8.
- Order 45, r 1 had its origin in a power that was held by Griffith CJ, with the assent of Harding and Real JJ in the Full Court, in Woods v Sheriff of Queensland (1895) 6 QLJ 163, 165, to have been exercised both in Chancery and at common law before the Judicature Act. In explaining the limits of that power to grant relief in the context of the rules introduced in Queensland under the Judicature Act of 1876, his Honour said (6 QLJ 163, 165):
"An application for such relief is not in the nature of an appeal or rehearing; each of these is founded on the contention that the order appealed from ought not to have been made. An application for a new order which has the effect of suspending in whole or in part the operation of a previous order starts with the assumption that that order was rightly made. There is therefore no question of reversing or varying or rehearing the original decision or order ... If it should turn out that the application is based upon the assumption that the order, the operation of which it is desired to modify, was wrongly made, it must fail. The only question is whether the party applying is entitled under the altered circumstances to be relieved from the operation of the order."
- Sir Samuel Griffith was the author of the Rules of the Supreme Court 1900, which introduced O 45, r 1, and he may fairly be credited with having drafted it. Order 45, r 1 and the current Rule 668 are broader than the earlier rules to which he referred in Woods v Sheriff of Queensland. I am, however, in no doubt that it was not the intention of the learned Chief Justice so to enlarge the provisions of O 45, r 1 that it superseded or afforded an optional alternative to the appeals procedure which had been introduced in 1877 by the Judicature Act of 1876 and enlarged by the Rules of 1900. His careful observations in Woods v Sheriff of Queensland drew a firm distinction between a claim to relief from a judgment or order that was challenged as erroneous as distinct from one that was accepted as being correct at the time it was made. It is only in the latter case that relief may be sought under Rule 668(1)(a) by reason of facts arising after the order was made or the judgment was given. Otherwise it is the procedure by way of appeal that must be resorted to. In saying this I leave out of account the possibility that Rule 668(1)(b) may have some operation in relation to applications for new trials on the basis of the discovery of fresh evidence. That is not a question that arises here.
- In the present case the body corporate did not seek relief against the operation of a judgment which was assumed to be correct. On the contrary, it claimed that the decision of Robin DCJ was wrong because it was inconsistent with the decision of the Court of Appeal in Anthony v Rockett [1999] QCA 434. That being so, its only remedy against the decision of Robin DCJ was to appeal against it. Having consented to an order dismissing that appeal, it is not entitled now to have that judgment vacated without first setting aside the consent order, or to invoke the jurisdiction under UCPR Rule 689(1)(a) by applying to a judge of co-ordinate jurisdiction to relieve it of the judgment given by Robin DCJ which it asserts is wrong.
- Having regard to the way in which matters developed here, one may feel some sympathy for the body corporate in the position in which it has now found itself. The passage in the judgment of this Court in Anthony v Rockett [1999] QCA 424, which seems to have prompted the application to Wylie DCJ by the body corporate is as follows:
"When account is taken of all these matters, we consider that the learned judge [Robin DCJ] was not justified in finding that, in publishing the defamatory material complained of in exs 29, 30 and 31 the defendants, and in particular Mrs Anthony, were actuated by ill will within the meaning of s 16(2) of the Defamation Act …".
There is also another passage in those reasons to the effect that "his Honour's final conclusion that s 16(1)(e) was not available to the defendants … ought not to stand".
- It is natural that the body corporate should have supposed that, in stating the reasons for judgment in that way, the Court of Appeal was intending to set aside the finding of ill will or "improper motive" not only against Mrs Anthony but also against the body corporate. However, that is not so. Speaking of another case in which a trial judge had found that a defendant had manifested ill will towards the plaintiff, Robin DCJ in his reasons for judgment in this instance said:
"The same assessment must be made of Mrs Anthony. Her mind represents that of the body corporate for present purposes."
The way in which that finding is formulated in his Honour's reasons is such that there was only one finding of fact against Mrs Anthony, for which the body corporate was responsible. It was therefore not possible for the Court of Appeal to set aside that finding without at the same time involving the finding of ill will against the body corporate. This was recognised in Mrs Anthony's notice of appeal no 7664 of 1998, in which para 2(a) alleged that the trial judge was wrong in finding that the defence of qualified protection within the meaning of s 16 of the Defamation Act had not been made out, and para 2(b) that the appellants (plural) had been actuated by improper motive.
- Setting aside those findings on Mrs Anthony's appeal against the judgment in the action brought against her by Mrs Rockett and Mr Devencorn could not, however, affect the finding, even though it was the same, made against the body corporate in the action brought against it by the same two plaintiffs. For that to have happened, it would have been necessary for the Court of Appeal to have had before it an appeal by the body corporate, and, as we have seen, the appeal (no 7710 of 1998) had already been dismissed by consent on 10 November 1998. I can understand why the body corporate would regard this state of affairs as confusing; but it is due to the fact that the proceedings before Robin DCJ involved two separate sets of claims by Mrs Rockett as well as two by Mr Devencorn, one each against Mrs Anthony and another one by each of them against the body corporate making a total of four claims in all. For convenience and to avoid the wastage of time and expense of presenting the same evidence at four separate hearings, the evidence in support or in defence of both claims was, in this as in other cases, heard and considered together; but in the end it resulted in separate judgments on each claim against each defendant. For Mrs Rockett it was a judgment for damages of $20,000 given against (1) Mrs Anthony and (2) the body corporate; and for Mr Devencorn it was a judgment for damages of $1,000 against (3) Mrs Anthony and (4) the body corporate. Because the appeal by the body corporate was dismissed by consent, the only appeal which the Court of Appeal was competent to or did determine was the appeal against the judgment for damages on claims (1) and (3) against Mrs Anthony, and not (2) and (4) against the body corporate. The judgment or judgments on those two claims (2) and (4) were not contested or in any way before the Court on Mrs Anthony's appeal, and the Court had no power to alter them on that appeal.
- I would allow the appeal with costs, and dismiss the application dated 22 February 2000 with costs.
- WILLIAMS JA: I agree with the reasons of judgment of McPherson JA and with the orders he proposes.
- WILSON J: I, too, agree with the reasons for judgment of McPherson JA and with the orders he proposes.