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Goldsmith v AMP Life Ltd[2016] QCATA 162

Goldsmith v AMP Life Ltd[2016] QCATA 162

CITATION:

Goldsmith & Anor v AMP Life Ltd [2016] QCATA 162

PARTIES:

Andrew David Goldsmith

Janne Elizabeth Tippett

(Applicants/Appellants)

v

AMP Life Ltd

ACN 001777591

(Respondent)

APPLICATION NUMBER:

APL430-15

MATTER TYPE:

Appeals

HEARING DATE:

9 June 2016

HEARD AT:

Brisbane 

DECISION OF:

Justice Carmody

DELIVERED ON:

18 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

  1. The application for leave to appeal is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – VARIATION AND SETTING ASIDE OF CONSENT JUDGMENT OR ORDER – GENERAL PRINCIPLES – where the applicants filed compensation claim against the respondents in the tribunal – where the respondents made a counter – application – where the compensation claim was stayed when the company appointed liquidators – where the liquidators indicated they did not “presently intend” to take any step to continue the application – where the rights “to take action” were later assigned by the liquidators to the applicants – whether the application was stayed indefinitely – whether the assignment was improper or ineffective – where the tribunal made a consent order in the belief that both parties had validly consented to the discontinuation application – where the applicants claim they were unaware that their application had been administratively terminated – whether the consent order was invalid because the applicants were entitled to be but were not notified of it – whether the applicants were entitled to be notified – whether the consent order was invalid because it was not in terms sought – whether the consent order can and should be aside

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER – WHERE JUDGMENT OR ORDER MADE IRREGULARLY, ILLEGALLY OR AGAINST GOOD FAITH – whether the consent order is invalid because the respondents misled the tribunal into making it – where the respondent knowingly initiated and filed the discontinuation application for a consent order without the applicants’ consent – whether the consent order should be set aside for fraud

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – where the applicants applied to reopening a proceeding – where the reopening application was transferred administratively to the appeals list – whether the applicants have shown a better than arguable case of error – whether the loss of a right to defend a counter-application amounts to substantial injustice – whether the appeal tribunal should exercise its discretion to waiver time limits on the claim

Bankruptcy Act 1966 (Cth) s 60(2)

Corporations Act 2001 (Cth) ss 477(2), 500(2)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 25, 26, 27, 28, 37, 38, 39, 42, 45, 46, 57A, 59, 126, 127, 133, 135, 139, 141, 143, 146, Sch 3

Queensland Civil and Administrative Tribunal Rules 2009 (Qld) ss 3, 8

Retail Shop Leases Act 1994 (Qld) ss 63, 64

Cabassi v Vila; sub nom Cabassi v Ferrando (1940) 64 CLR 130

Elfic Ltd v Macks (2001) 162 FLR 41

Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498

Johns v Cosgrove [2002] 1 Qd R 57

Jonesco v Beard [1930] AC 298

Layne v Samjam Investments Pty Ltd t/as Atkinson Dam Waterfront Caravan Park [2015] QCAT 58

McDonald v McDonald (1965) 113 CLR 529

Pearce & Anor v Body Corporate for Riparian Plaza Apartments CTS 34665 [2012] QCAT 72

Peter Campbell Landscapes v Stormont [2011] QCAT 79

R v Saddlers' Company (1863) 10 HL Cas 401

Smith v Andrews [2014] QCAT 356

Spann v Stanwell Pty Ltd; Negus [1984] 1 Qd R 29

Trendtex Trading Corp v Credit Suisse [1981] 3 All ER 520

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

WorkCover Queensland v AMACA Pty Ltd [2013] 2 Qd R 276

APPEARANCES and REPRESENTATION (if any):

APPLICANTS:

Mr A Goldsmith, lay representative for the applicants

RESPONDENT:

Ms C A Schneider, Counsel for the respondent

REASONS FOR DECISION

  1. [1]
    This very belated application for leave to appeal is against a final consent order made three years ago allowing tribunal proceeding RSL15-11 to be withdrawn by the parties without a hearing.
  2. [2]
    The applicants claim the consent order is a nullity devoid of legal effect because:
    1. (a)
      it was not in the terms sought;
    2. (b)
      they were entitled to be – but were not – notified of, and did not consent to, any application to discontinue the proceedings (the discontinuation application);
    3. (c)
      it should have been made administratively by the registrar rather than ex parte; and
    4. (d)
      the tribunal was misled by the respondent (AMP) into making the consent order in the mistaken belief that all relevant parties had agreed in discontinuing the proceeding.
  3. [3]
    To apply for (much less obtain) leave to appeal, the applicants must surmount considerable discretionary obstacles. For a start, they have to satisfactorily explain their failure to take effective steps to protect the rights and interests they claim to have lost and why they have taken so long to seek to remedy the alleged injustice. Also, even if that is done, leave to appeal by way of rehearing on additional evidence is ordinarily granted only in those relatively rare cases where there is, at least, a better than arguable case of vitiating defect or error as well as a demonstrable substantial injustice to be righted and no personal default on the applicants’ part.
  4. [4]
    More specifically, to obtain leave, the applicants have the heavy burden of demonstrating a reasonably arguable case that:
    1. (a)
      RSL15-11 was still active at the assignment date;
    2. (b)
      the liquidators validly assigned the proceeding’s subject matter to them;
    3. (c)
      AMP initiated, completed and filed the discontinuation application without the actual or implied authority or consent of Goldtip’s liquidators, knowingly denied them their procedural rights by not serving them and fraudulently triggered the proceeding’s withdrawal, either alone or in collusion with the liquidators, with the intention or effect of robbing them of the benefit of the assigned claim and avoiding the risk of an adverse tribunal decision on the compensation claim;
    4. (d)
      also, AMP deliberately acted on the consent order without notice to them in their capacity as co-respondents to the counter-application (if not assignees);
    5. (e)
      the consent order was irregularly made and entered and, at any rate, cannot be truly described as ‘made by consent’; and
    6. (f)
      despite their own lack of due diligence and inordinate delays, the interests of justice demand that the appeal tribunal intervene to set aside the consent order and reinstate RSL15-11.
  5. [5]
    AMP objects to any extension of time (on the basis that the applicants’ tardiness is unexplained and potentially prejudicial) and opposes leave to appeal on the grounds that the applicants were not parties entitled to be consulted or notified, did not have any genuine legal interest in the discontinued proceedings at the time and have no standing to appeal. Alternatively, it denies that there is any arguable substantial injustice and, if needs be, seeks fresh orders to the same effect.

The context

  1. [6]
    In 2011, Goldtip News Pty Ltd (Goldtip), a $2 company controlled by the applicants, filed RSL15-11, a $200,000 compensation claim against AMP for alleged retail shop lease breaches. AMP denied liability and counter-claimed[1] unpaid back rent of $77,000, joining the applicants to the dispute as Goldtip’s guarantors.
  2. [7]
    There is no suggestion the tribunal did not have original jurisdiction to resolve the rental dispute in accordance with the statutory procedures under enabling provisions of the Retail Shop Leases Act 1994 (Qld) (RSL Act).
  3. [8]
    The applicants’ property was managed by a registered trustee (SV Partners) from 2012 under a personal insolvency agreement (PIA).
  4. [9]
    RSL15-11 was adjourned by agreement and then stayed by operation of law when Goldtip’s creditors, including AMP, appointed liquidators in March 2013.[2] Goldtip appears to have traded while insolvent for years before that. The final accounts record debts of $5.3 million (including $3.8 million to the National Australia Bank) with no dividend being paid to any class of creditor.
  5. [10]
    On 6 May 2013, (that is, when the proceedings had been stalled for more than two years) the liquidators informed AMP (in the so-called ‘Allens letter’) that they did not “presently intend” to take any step on Goldtip’s behalf to further progress RSL15-11. There is no credible evidence that the liquidators envisaged ever pursuing it to finality.
  6. [11]
    AMP submits that if RSL15-11 was not already indefinitely stayed by virtue of s 500(2) Corporations Act 2001 (Cth) (Corporations Act), the Allens letter had that intended or practical effect.
  7. [12]
    The company’s rights “to take action” – including, the applicants say, for the pre-liquidation losses claimed against AMP in RSL15-11 – were later assigned by the liquidators to the applicants for $5,000 without AMP or other creditors being consulted or advised and no steps were taken to formally substitute the applications for Goldtip as parties under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
  8. [13]
    AMP concedes that Goldtip’s liquidators had power to “sell or otherwise dispose of, in any manner, all or any part of the property of the company” including a right to litigate under s 477(2)(c) Corporations Act to the applicants,[3] but contends that RSL15-11 was not included in the transfer, not only for the reason that it was dormant and for all intents and purpose permanently stayed, but also because in using the phrase “to take action”, the liquidators clearly intended to only assign a right to originate, not to continue pre-existing litigation such as RSL15-11.
  9. [14]
    Alternatively, AMP claims[4] that the assignment is (a) improper (as the applicants stand to gain a grossly excessive profit and, therefore, contrary to the interests of the winding up or unpaid creditors including AMP and (b) legally ineffectual (because the liquidator did not consult with creditors prior to agreeing to the assignment).[5]
  10. [15]
    No evidence was adduced by either party shedding any light on whether or not the liquidators authorised, impliedly agreed to or, at least, acquiesced in the filing of the discontinuation application as a convenient way of bringing the dispute to an end. What is clear, however, is that neither the liquidators nor the applicants took any timely procedural step to protect the assigned rights before the proceedings were withdrawn.
  11. [16]
    The discontinuation application was prepared and filed in the tribunal by AMP after it was signed by SV Partners.[6] Neither the liquidators nor either applicant were parties to or served with it. The consent order was made on 22 July 2013, and given practical effect by the registry on the same day. The applicants claim that they were unaware of the finalisation of the proceeding until early 2015, when they wrote to the registrar inquiring into its status.
  12. [17]
    More than 18 months after the termination of RSL15-11, the applicants filed a reopening application which was subsequently transferred unheard to the appeals list to proceed as this application for leave to appeal.
  13. [18]
    Assuming (without deciding) that the transfer means the reopening application is no longer pending,[7] the question for the appeal tribunal is whether anything can (or should) now be done to revive RSL15-11 and restore the applicants’ allegedly assigned litigation rights against AMP.
  14. [19]
    A brief survey of the QCAT procedures controlling QCAT proceedings and principles governing the power to set aside a final order is needed to explain why the answer is no.

Starting and ending QCAT proceedings

  1. [20]
    A QCAT proceeding (including a miscellaneous procedural application and one in the nature of an appeal) starts when an approved application form is accepted by the registry and the prescribed fee is paid.[8] Unless an order to the contrary is made,[9] a copy of any originating or interlocutory process must be served on each party and any other person entitled to notice or as directed.[10]
  2. [21]
    The tribunal must act with as little formality and technicality and as much speed as the statutory requirements and proper consideration of the issues permit.[11] However, tribunal proceedings are regulated by standard procedures and fixed time limits, which, for case management purposes, must be strictly  complied with unless excused or waived as unnecessary or impracticable.[12]
  3. [22]
    Otherwise, subject to the QCAT Act, an enabling Act[13] and the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (QCAT Rules),[14] a proceeding’s conduct is at the tribunal’s discretion. Section 51 QCAT Act allows the tribunal to give directions at any time about the conduct of a proceeding (including about a counter-application).[15]
  4. [23]
    Section 46(1) QCAT Act allows an applicant[16] to withdraw an application before it is heard “in the way stated in the rules”. A further application relating to the same facts as a withdrawn proceeding is not permissible without leave.[17]
  5. [24]
    Since 1 January 2015, applicants (including cross-applying respondents) have had the option of withdraw or discontinuing[18] an application early (if leave to do so is not specifically required by s 46(2) QCAT Act) by simply filing and serving a notice in the approved form,[19] but Unlike the common law the non-suit procedure which allows a plaintiff to elect to withdraw as of right any time before judgment without prejudice to reinstating it later, a QCAT proceeding cannot be reviewed by a party unilaterally after it has been withdrawn.[20] Discontinuing or withdrawing the whole or part of a proceeding (including a retail shop lease dispute) required the tribunal’s leave under s 46(2) QCAT Act.
  6. [25]
    The registrar is required to give notice of the hearing of a QCAT application (including one for leave) to each party or person served.[21] A party to a proceeding for this purpose is relevantly identified in s 39 QCAT Act as the applicant or a person joined as a party to the proceeding under s 42.[22] The applicants were respondent parties to the proceeding constituted by the counter-application; but, despite the assignment, they are not parties to the compensation claim Thus, there is no arguable case of denial of procedural unfairness based on non-service or loss of the right to be heard.
  7. [26]
    A withdrawn or discontinued proceeding ends the dispute of the parties and deprives the tribunal of its adjudicative jurisdiction to decide their legal rights and liabilities. Although the consent order was not strictly what was sought in the discontinuation application, on being pronounced,[23] it took effect as a final and binding order[24] and cannot be revoked or rescinded by the tribunal making it under any incidental or implied procedural powers except for clerical error, accidental slip, omission, miscalculation of figures, formal default or defect,[25] misdescription or other administrative mistake (but not a misunderstanding by the parties).[26]
  8. [27]
    Also, if there are problems in interpreting, implementing or enforcing it, an application may be made to renew[27] or amend[28] the decision to reflect the parties’ intention; but, otherwise, a dispositive tribunal decision is binding on the parties to a proceeding unless it is a nullity or vitiated by some incurable defect. Otherwise, the tribunal making the order is functus officio (powerless) and there is no express provision in the QCAT Act for setting aside disputed consent or ex parte orders other than reopening or appeal proceedings.
  9. [28]
    In the regular courts, a blameless litigant who was not served or notified of the hearing date has a right to set aside an order made in his or her absence (in breach of the rules of court or natural justice) because the defect is regarded as depriving it of legal force or effect. Parties to a tribunal dispute may have an equivalent right to have an irregular ex parte order recalled and revoked implied from the objects and tenor of the QCAT Act as long as there is no discretionary bar such as a failure to act quickly to correct the procedural defect or error.[29]
  10. [29]
    The tribunal may only reopen a terminated proceeding at the instance of a party on limited grounds,[30] including (a) the party did not appear at the hearing and had a reasonable excuse for not doing so, or (b) the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen that was not reasonably available when the proceeding was first heard and decided.[31]
  11. [30]
    The only option for a party dissatisfied with a regular and executed order who does not elect to recall or reopen an ex parte decision or order or cannot get the other party to agree to reinstate the terminated proceeding is to apply for leave to appeal against an order by way of rehearing, but only for fraud or misrepresentation. An induced mistake or non-jurisdictional error by the original tribunal is not sufficient.
  12. [31]
    Appeal proceedings must be filed within 28 days of the proceeding being “dealt with”[32] or, if leave is required, 21 days after the final decision is given or, if reserved, the reasons are published.[33] The tribunal’s appeal jurisdiction to hear and decide an appeal proceeding (including a leave application) under s 142 QCAT Act[34] arises only if a listed party to a proceeding has appealed.[35] In deciding a competent appeal on a question of law, the appeal tribunal may set aside the decision[36] and make any other order it considers appropriate.
  13. [32]
    The consent order may (theoretically) be vulnerable on appeal by way of rehearing if (a) transferring the matter to the appeal list did not amount to – or at least did not have the practical effect of – a refusal to reopen the consent order,[37] (b) RSL15-11 was somehow still on foot at the assignment date, (c) the assignment was valid and (d) there was no actual or implied agreement to discontinue it.

Setting aside defective consent orders

  1. [33]
    As the tribunal pointed out in Pearce & Anor v Body Corporate for Riparian Plaza Apartments CTS 34665,[38] a consent order based on an agreement will not readily be set aside unless there are grounds to revoke the agreement itself. In contrast, a consent order that has merely been “submitted to” may be set aside in the same circumstances as any order made without the parties’ consent.
  2. [34]
    Deliberate deception has been held to be sufficient ground for rescinding a consent judgment. As Williams J pointed out in Cabassi v Vila; sub nom Cabassi v Ferrando:[39]

“A judgment which is procured by fraud is tainted and vitiated throughout. If the fraud is clearly proved the party defrauded is entitled to have the judgment set aside in an action. In some of the older cases in the House of Lords it has been stated that where a judgment has been so obtained it may be treated as a nullity.”

  1. [35]
    However, the standard practice when fraud on the court is alleged is for it to be recalled on reopening or a separate court action to be taken,[40] rather than via rehearing on appeal. For example, in R v Saddlers' Company,[41] Willes J said:

“A judgment or decree obtained by fraud upon a court binds not such court nor any other; and its nullity upon this ground, though it has not been set aside or reversed, may be alleged in a collateral proceeding…”

  1. [36]
    Even if departure from the established practice is warranted and the appeal tribunal was willing to entertain an application to set aside on appeal, full particulars and strict proof is needed. As Lord Buckmaster explained in Jonesco v Beard, mere suspicion of fraud is not enough:[42]

“… the necessity for stating the particulars of the fraud and the burden of proof are no whit abated (on appeal) and all the strict rules of evidence apply. The affidavits used must, therefore, be examined as on final trial; every particle of hearsay evidence and reference to documents, not produced, must be excluded, and it must be kept constantly in mind that the rules which permit, on interlocutory proceedings, hearsay evidence, where the exact source of the information is afforded, have no more application than they would possess were the deponent a witness in the box speaking at the trial.”

  1. [37]
    In Wentworth v Rogers (No 5),[43] Kirby P set out the legal principles relating to proceedings to have a judgment set aside for fraud:

“First, the essence of the action is fraud. As in all actions based on fraud, particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such a charge requires.

Secondly, it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment. It is based upon a number of grounds. There is a public interest in finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to relitigate matters which were the subject of the earlier proceedings which gave rise to the judgment. Especially should they not be so permitted, if they move on nothing more than the evidence upon which they have previously failed. If they have evidence of fraud which may taint a judgment of the courts, they should not collude in such a consequence by refraining from raising their objection at the trial, thereby keeping the complaint in reserve. It is their responsibility to ensure that the taint of fraud is avoided and the integrity of the court's process preserved.

Thirdly, mere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief. The claimant must establish that the new facts are so evidenced and so material that it is reasonably probable that the action will succeed. This rule is founded squarely in the public interest in finality of public litigation and in upholding judgments duly entered at the termination of proceedings in the courts.

Fourthly, although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud, and although there may be exceptional cases where such proof of perjury could suffice, without more, to warrant relief of this kind, the mere allegation, or even the proof, of perjury will not normally be sufficient to attract such drastic and exceptional relief as the setting aside of a judgment. The other requirements must be fulfilled. In hard fought litigation, it is not at all uncommon for there to be a conflict of testimony which has to be resolved by a judge or jury. In many cases of contradictory evidence, one party must be mistaken. He or she may even be deceiving the court. The unsuccessful party in the litigation will often consider that failure in the litigation has been procured by false evidence on the part of the opponent and the witnesses called by the opponent. If every case in which such an opinion was held gave rise to proceedings of this kind, the courts would be even more burdened with the review of first instance decisions than they are. For this reason, and in defence of finality of judgments, a more stringent requirement than alleged perjury alone is required.

Fifthly, it must be shown by admissible evidence that the successful party was responsible for the fraud which taints the judgment under challenge. The evidence in support of the charge ought to be extrinsic. It is not sufficient to show that an agent of the successful party was convicted of giving perjured evidence in the former proceeding, the result of which it is sought to impeach. It must be shown that the agent, in so acting, was in concert with the party who derived the benefit of the judgment.

Sixthly, the burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly. In summary, he or she must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment.” (citations omitted)

  1. [38]
    However, the legal status, validity and enforceability of the assignment is doubtful at best and they were not parties entitled to notice when the discontinuation application was filed. Nor does there appear to be anything inherently wrong or sinister in AMP taking the initiative to terminate RSL15-11; it was reasonable for AMP to interpret the Allens letter as an indication by the liquidators that Goldtip’s compensation claim would never proceed to hearing and, for all practical purposes, had elected to abandon the litigation in the best interests of creditors.
  2. [39]
    As AMP did not know about the assignment or the applicant’s asserted rights under it, it can hardly be criticised for not serving them personally or asking for their approval to discontinuing Goldtip’s compensation claim.
  3. [40]
    Since there was no active claim left to defend, AMP had no need to try to enforce the guarantee against the applicants by cross-claim. It would arguably have been a fraud on the court and an abuse of process not to formally discontinue the counter-application where the disputed subject matter no longer existed.
  4. [41]
    The applicants may technically have had standing in their capacity as respondents to AMP’s counter-application to oppose discontinuation or withdrawal, but no real legal basis for doing so. Ending the counter-application in RSL15-11 was overwhelmingly beneficial to them. It relieved them of the risk of tribunal enforcement of the indemnity obligations under the guarantee. The only litigation right they had was the right to defend, which they only needed to exercise if AMP still wanted to use it as a guard against its potential liability for Goldtip’s default.
  5. [42]
    The upshot of all this is that RSL15-11 has been defunct since 2013 and the only residual basis for setting the consent order and its sequelae aside is the allegation on the strength that the tribunal was duped by AMP into making a consent order which it would not have made if it had known the true situation; that is, that not all parties agreed.
  6. [43]
    On the filed material, the applicants have failed to demonstrate that, in filing the discontinuation application and causing the consent order to be made, AMP (either in collusion with the liquidators or otherwise) misled the tribunal into making the consent order in its favour at their expense. Nor have they been able to point to any admissible and probative fresh evidence capable of proving fraud against AMP in an appeal by way of rehearing.
  7. [44]
    Even if the applicants have a plausible – as distinct from merely speculative – case of fraud against AMP, discretionary considerations (including their own unsatisfactorily explained inaction and the extreme delay in taking any remedial steps and the likely prejudice to AMP) militate strongly against conducting a rehearing to investigate the legal status of the consent order. In my view, the interests of justice, neither particularly in relation to the parties nor generally in relation to the administration of justice, do not compel or justify that course in these circumstances.[44]
  8. [45]
    Thus, to the extent that it is needed, leave to appeal is not granted. Since there is no competent appeal on foot, there is nothing to dismiss.
  9. [46]
    The consent order can now only be set aside by agreement or via a successful action for fraud in a competent jurisdiction.[45]

Footnotes

[1]  Counter-applications save a respondent to an originating claim from having to file separate proceedings as an applicant and are dealt with as part of the proceedings started by the initial claim.

[2]Bankruptcy Act 1966 (Cth) s 60(2).

[3]  A bare right to litigate is assignable to an assignee with a genuine substantial and pre-existing interest in the success of the litigation. Trendtex Trading Corp v Credit Suisse [1981] 3 All ER 520, 522; Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; WorkCover Queensland v AMACA Pty Ltd [2013] 2 Qd R 276.

[4]  [53] – [55] of its written submissions.

[5]Elfic Ltd v Macks (2001) 162 FLR 41, 63-4.

[6]  SV Partners has since confirmed that, in signing the discontinuation application, it did not intend to compromise the applicants’ rights as against AMP as assignees (because they were never vested in or controlled under the PIA) and does not object to RSL15-11 being reinstated so they can pursue it to finality.

[7]  Otherwise, any appeal proceeding is statute-barred: Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 141(2).

[8]  QCAT Act s 38.

[9]  Ibid s 37(3).

[10]  Ibid s 37(2).

[11]  Ibid s 28(3)(d).

[12] Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (QCAT Rules) s 3(a)(b)(iv).

[13]  RSL Act ss 63-64.

[14]  QCAT Rules s 8(1).

[15]  For QCAT, a proceeding generally means ‘a proceeding before the tribunal’. A counterclaim is a proceeding within a proceeding.

[16]  Defined in QCAT Act Sch 3.

[17]  QCAT Act s 46(3).

[18]  The terms are virtually synonymous in practice.

[19]  QCAT Act s 57A.

[20]  QCAT Act s 46(3).

[21]  Ibid s 59.

[22]  Ibid s 39(a), (d).

[23]  Ibid s 127.

[24]  Ibid s 126(1).

[25] ;Peter Campbell Landscapes v Stormont [2011] QCAT 79.

[26]Layne v Samjam Investments Pty Ltd t/as Atkinson Dam Waterfront Caravan Park [2015] QCAT 58; Smith v Andrews [2014] QCAT 356.

[27]  QCAT Act s 133.

[28]  Ibid s 135.

[29]  QCAT Act s 142.

[30]  Ibid s 139(4).

[31]  Ibid Sch 3.

[32]  Ibid s 143(4)(b),(5)(a): dealt with includes “hearing or determining”.

[33]  Ibid s 143(4)(a).

[34]  Ibid ss 25-26.

[35]  Ibid s 27.

[36]  Ibid s 146(b)-(c).

[37]  Which cannot now be appealed, reviewed or otherwise impeached.

[38]  [2012] QCAT 72.

[39]  (1940) 64 CLR 130,147.

[40] Spann v Stanwell Pty Ltd; Negus [1984] 1 Qd R 29.

[41]  (1863) 10 HL Cas 401,431.

[42]  [1930] AC 298.

[43]  (1986) 6 NSWLR 534,538-9.

[44] Johns v Cosgrove [2002] 1 Qd R 57, 91. See also Barwick CJ (with whom Kitto J agreed) in McDonald v McDonald (1965) 113 CLR 529, 533.

[45]Spann v Stanwell Pty Ltd, Negus [1984] 1 Qd R 29,35.

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Editorial Notes

  • Published Case Name:

    Goldsmith & Anor v AMP Life Ltd

  • Shortened Case Name:

    Goldsmith v AMP Life Ltd

  • MNC:

    [2016] QCATA 162

  • Court:

    QCATA

  • Judge(s):

    Carmody J

  • Date:

    18 Oct 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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