Liddell v The Commonwealth of Australia
[1997] QDC 224
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- Liddell v The Commonwealth of Australia[1997] QDC 224
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Liddell v The Commonwealth of Australia[1997] QDC 224
Liddell v The Commonwealth of Australia[1997] QDC 224
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Appeal No.796 of 1997 |
BETWEEN:
KENNETH EDWARD LIDDELL | Appellant (Defendant) |
AND:
THE COMMONWEALTH OF AUSTRALIA | Respondent (Plaintiff) |
REASONS FOR JUDGMENT - McGILL D.C.J.
Delivered the 4th day of June 1997
This is an appeal from a decision of a Stipendiary Magistrate in Brisbane on 29 January 1997 when he gave leave to the plaintiff to enter judgment against the defendant for an amount of $18,658.14 together with interest and costs, and ordered the defendant to pay costs of the application in the sum of $448, on the hearing of an application for judgment in a summary way as if a defence had not been filed. He upheld an argument that a decision of the Commonwealth Social Security Appeals Tribunal (“SSAT”) of 20 April 1995 raised an issue estoppel against the defendant so that the defendant had no defence to the plaintiff's claim. In view of the amount involved in the action there is an appeal as of right under s 44 of the Magistrates Court Act 1921. By Rule 294(4) of the Magistrates Courts Rules the appeal is by way of rehearing.
Background
Some indication of the background to the matter appears in the decision of the SSAT dated 20 April 1995 a copy of which is annexure RBG2 to an affidavit of Mr Greenup which was before the Magistrate. The appellant received payments of invalid pension, unemployment benefits and sickness benefits for various periods between 2 February 1984 and 31 August 1987. On 17 May 1988 a officer of the Department of Social Security decided that there had been overpayments during this period in respect of an amount of $18,658.14 by way of unemployment benefits, $7,157.90 by way of invalid pension, and $5,382.16 by way of sickness benefits. The decision was made by the Department on the basis that the appellant was not available for employment or actively seeking employment during the relevant period, and his income and assets derived from operation of rental properties and his business, Anchor Pools, exceeded the allowable income test limits. The decision was reviewed by an authorised review officer who affirmed it on 23 September 1994; the same day the appellant lodged an appeal to the SSAT against that decision.
The appellant's case before the SSAT was that he was a director and shareholder of the company Lochinvar Pty Ltd, that that company owned residential rental properties and carried on the business known as Anchor Pools, that that business was carried on by having pool displays at his place of residence where he would speak with potential customers, and if they wanted pools installed would arrange for other parties (no doubt sub-contractors) to install pools supplied by Driclad Pools, but notwithstanding his work for the company he did not receive any wages or directors fees or distribution of profits, the company showed a loss in every financial year except 1984 when there was a small profit which was not distributed, he was always available for employment and did seek it but did not obtain employment either because he was over-qualified or because of significant health problems. He showed the SSAT TAB records indicating he had received income by way of horse gambling, but argued that this was not income for the purposes of the Social Security Act. It appears that there was some issue before the SSAT as to when a property was transferred by the appellant and his wife to Lochinvar Pty Ltd.
The SSAT noted that the matter had been the subject of extensive investigation by the Department, which had been intermittent and protracted partly because of the relative complexity of the financial affairs which had emerged, and partly because of the appellant's consistent resistance to divulging any personal or business information to the Department: para. 5.2.
The SSAT found that during the periods when the appellant was in receipt of unemployment benefits he was not unemployed, being actively involved in the day to day activity of the company Lochinvar Pty Ltd. As he was not unemployed, he was not qualified to receive payments made to him by way of unemployment benefits, and the payments made were attributable to false representations on each claim form for benefits that he was unemployed, so that these amounts were a debt due to the Commonwealth pursuant to s 181(1) of the Social Security Act 1947. However, the appellant was qualified to receive sickness benefits, and there was insufficient evidence of disqualifying income to sustain the decisions that the invalid pension and sickness benefits were overpaid. The tribunal quantified the recoverable debt of the sum of $18,658.14, setting aside the decisions in relation to recoverable debts in respect of sickness benefits and invalid pension.
There is a right of appeal from the decision of the SSAT to the Administrative Appeals Tribunal, (“AAT”) which the appellant initially intended to pursue, although he has not done so.
The respondent had commenced proceedings in this court against the appellant on 28 January 1993 by a plaint claiming the sum of $30,834.20 as money had and received by the defendant to the use of the plaintiff, or the alternative as money paid in excess of the amount payable under the Social Security Act 1947, or in the further alternative as money recoverable under that Act as a debt due to the Commonwealth, or in the further alternative as an amount by which the defendant has been unjustly enriched. An entry of appearance and defence was filed on 7 June 1993, in which the defendant forshadowed the same sort of arguments which were put before the SSAT, although he also alleged that the money was not recoverable by reason of the provisions of s 1232(1) of the Social Security Act (presumably the 1991 Act). It may be that this was intended to be a plea of a defence under s 1232(2) of that Act. On 19 May 1994 an amended plaint was filed increasing slightly the amount claimed. Pursuant to a consent filed in the action, on 11 November 1994 the action was remitted to the Magistrates Court at Brisbane. A certificate of readiness signed on behalf of both parties was filed on 14 September 1995, and a trial date was subsequently given, but on the appellant's application that date was vacated.
The decision under appeal
The matter next came before the court on the respondent's application filed on 12 November 1996 for an order that:
- 1.“The decision of the Commonwealth Social Security Appeals Tribunal of 27 March 1995 raised an issue of estoppel against the defendant;
- 2.The defendant has no defence in regard to the amount of $18,658.14 claimed by the plaintiff;
- 3.The plaintiff may proceed to enter judgment for the sum of $18,658.14 (plus costs and interest) as if a defence had not been filed.”
That application was heard on 29 January 1997 by Mr Quinlan S M who dealt with two issues, issue estoppel and delay. On the former he concluded that if the hearing was to proceed the same factual matters would arise for consideration, and that there would be a re-litigation of matters already decided upon. He was of the view that issue estoppel would act against the defendant. On the issue of delay he noted the decision of Queensland Truss and Frame Pty Ltd v Grenadier Constructions No.2 Pty Ltd [1992] 2 Qd R 428, in support of the proposition that there was no jurisdictional limit upon the court's ability to hear summary judgment applications after the delivery of a defence, any such delay being merely a discretionary consideration.
Before me counsel for the appellant argued that the judgment below should be set aside on two grounds:
- (a)There was no issue estoppel because the SSAT was an administrative body and the decision of such a body did not give rise to an issue estoppel binding on a court.
- (b)Summary judgment should have been refused on the ground of excessive delay, particularly in circumstances where the defendant raised substantial issues by way of a defence on the merits. As to this latter point, reference was made to the fact that some of the material before the SSAT was material which would not have been admissible, at least in the form of which it was before that tribunal, if the matter had been litigated in a court which was subject to the rules of evidence.
Counsel for the respondent argued that there was an issue estoppel and that therefore once the question of an overpayment had been litigated in the SSAT it was not open to the appellant to seek to ventilate the same issue again in the Magistrates Court. I did not trouble him for an argument in relation to the issue of delay.
Issue Estoppel from administrative decisions
It has long been recognised that it is undesirable for the same issue to be litigated more than once, so that once a cause of action has been brought before a court of competent jurisdiction and the court has given judgment in relation to that cause of action, it is not open to re-litigate it either in the same court or another court. This is the doctrine of res judicata, a contraction of the maxim res judicata pro veritate accipitur [a thing adjudicated is received as the truth]: Osborn “A Concise Law Dictionary” (5th edition 1964) p.278. Strictly speaking the doctrine applies only to a cause of action, or right to make a claim against another party, which merges in the judgment of the court so that thereafter it no longer has an independent existence, and could not be the subject of a fresh claim: see Blair v Curran (1939) 62 CLR 464 at 532 per Dixon J; Jackson v Goldsmith (1950) 81 CLR 446 at 466 per Fullagar J; Effem Foods Pty Ltd v Trawl Industries of Aust Pty Ltd (1993) 43 FCR 510. There is also a doctrine of issue estoppel which operates by reference to issues rather than causes of action, and is a separate doctrine from res judicata: Queensland v The Commonwealth (1977) 139 CLR 585 at 615 per Aickin J. Once an issue has been determined conclusively between parties it is not open to any of them to re-litigate that issue in other proceedings: Effem Foods (supra) p.401 per Burchett J. It extends to issues of fact and law: Blair v Curran (supra) at 531 per Dixon J. So far as it applies to facts, it is confined to ultimate facts: Jackson v Goldsmith (supra) at 467 per Fullagar J. It commonly arises in relation to court decisions, because, particularly in the case of a superior court of general jurisdiction, the court will have jurisdiction to resolve matters in a way which is conclusive as between the parties: Re Jackson (1937) 38 SR (NSW) 13 at 19 per Jordan CJ. But as His Honour pointed out in that case the position is different in the case of a body which does not have general jurisdiction.
Subject to constitutional limitations, in principle Parliament may invest an entity other than a court with a capacity to decide a question in a way which will be conclusive for the purposes stated in the legislation: Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 453 per Gibbs J; Cachia v Isaacs (1985) 3 NSW LR 366 at 368 per Kirby P. In the present case it is clear that the SSAT is not a court, if only because a court established under Commonwealth legislation would have to satisfy the requirements of Chapter 3 of the Commonwealth Constitution, which plainly the SSAT does not. But the question of whether the decision of the SSAT is conclusive for the purposes of the Magistrates Court proceedings does not depend simply on a determination that the SSAT is an administrative tribunal rather than a court. It is possible for a decision of an administrative tribunal to be made conclusive between the parties so that once the tribunal has decided the issue on which its decision is conclusive, that decision is binding as between the parties for the purposes of subsequent litigation.
The position may be illustrated by an examination of the position of the AAT, which is an administrative body which stands in the shoes of the original decision maker, exercising statutory powers and discretions in the place of the decision maker whose decision is under review: Midland Metals Overseas Ltd v Comptroller-General of Customs (1991) 30 FCR 87 at 97 per Hill J. Hence a decision of the AAT is normally no more conclusive of issues than a decision of any other administrator.
The question of whether a decision of the AAT can give rise to either a res judicata or issue estoppel has been the subject of some controversy, both in the courts and in journal articles. There have been two very learned and helpful discussions of this issue published in recent years: AN Hall “Res Judicata and the Administrative Appeals Tribunal” (1994) 2 AJ Admin. 22, and TJF McEvoy “Res Judicata, Issue Estoppel and the Commonwealth Administrative Appeals Tribunal: A Square Peg into a Round Hole?” (1996) 4 AJ Admin. 37. As is pointed out in the latter article, at that stage there was no decision of the Federal Court supporting the application of either of these principles to the AAT except the decision in Bogaards v McMahon (1988) 80 ALR 342. That decision contains a discussion of the nature of the AAT and, from page 351 considers the question of whether issue estoppel could apply to the tribunal. Ultimately however His Honour did not decide whether an issue estoppel was raised by a decision of the tribunal. The facts were somewhat unusual, and the question was whether, a decision having being set aside by a consent order remitting the matter for reconsideration in a particular way, and the issue having then being decided by the decision maker in accordance with that direction from the tribunal, it was then open to apply to the tribunal to review that second decision. His Honour held that strictly speaking it was not a matter of reviewing the same decision twice, but the question was whether the same dispute could be reopened on the second occasion, and held, as a matter of construction of the legislation, that it could not be. This decision was criticised somewhat by McEvoy, but the result was approved by Wilcox J in Comcare v Grimes (1994) 50 FCR 60, where however His Honour said that an AAT decision can not give rise to an issue estoppel.
I shall not attempt any detailed analysis of the various arguments raised in these articles in their application to the SSAT, but I should indicate what I think is the correct approach to an issue such as this. The question of the effect of the decision of a statutory tribunal must be determined by reference to the terms of the statute which establishes it. That applies whether it is an administrative tribunal, or a quasi-judicial tribunal, or a judicial tribunal. It is necessary to identify just what function the tribunal is to perform, and what effect is to be given to its decision as a result of its performing that function. No doubt if a statute establishes something which it calls a court there would be a predisposition to conclude that any decision on an issue which was within the jurisdiction of that court would result in an issue estoppel between the parties to that decision, and if the tribunal was an administrative body there would be a predisposition to conclude that the resolution of any such issue by the tribunal was not conclusive between the parties to the dispute unless it was made so by statute: Re Jackson (supra) at p. 19-20.
In the case of the AAT its function is to review decisions of an administrative nature made under a statute, and to determine what is the correct or preferable decision under the circumstances. It can then confirm or vary the decision on the review or set it aside and remit the matter to the decision maker. It is not difficult to conclude that once a particular decision has been the subject of a review by the AAT there is no jurisdiction to review that decision again, and it is not difficult to conclude that, where there is a fresh decision taken in accordance with a decision on review by the AAT there is no jurisdiction to review that further decision. But given the nature of the review undertaken by the AAT, it is unlikely that the actual issue under review, namely whether the decision was the correct or preferable one, could be the basis of a res judicata because it would not arise in any other context. The cause of action is one to secure an administrative review on the merits of an administrative decision, and that is something which is not available in a court except where there is an express conferral of statutory jurisdiction, in which case the resolution of any possible conflict becomes a matter of statutory construction.
There is a difference between an issue as to whether a decision that there has been an overpayment of $x which ought to be recovered is the correct or preferable decision and an issue as to whether $x is recoverable in litigation as an overpayment. For example, on an administrative appeal it could be necessary to consider whether it was appropriate to exercise a statutory power of waiver of recovery of the overpayment, whereas in court proceedings to recover an overpayment the only issue in relation to waiver that could arise is whether the power to waive had been exercised. The factual issues in the administrative review may overlap the factual issues in a cause of action, but the ultimate issues will not overlap, and even where a decision of an administrator is made conclusive between the parties, it is only the ultimate decision which is conclusive.
However, it is possible for legislation to produce the result that in practice a decision of the AAT will be final and binding between the parties for the purposes of court proceedings. For example, s 177 of the Income Tax Assessment Act 1936 provides: “The production of a notice of assessment, or of a document under the hand of the Commissioner, a second Commissioner, or a Deputy Commissioner, purporting to be a copy of a notice of assessment, shall be conclusive evidence of the due making of the assessment and, except in proceedings under Part IV C of the Taxation Administration Act 1953 on a review or appeal relating to the assessment, that the amount and all the particulars of the assessment are correct.” There is a statutory power in s 207(2) to recover the amount of tax assessed which is made a debt due to the Commonwealth: S 208(1). If therefore a taxpayer was issued with an assessment, and objected against that assessment, the objection was disallowed, and was then referred to the AAT which gave a decision varying the original assessment, in proceedings in this court or indeed in any court to recover the amount of the varied assessment it would not be open to the taxpayer to defend such action on the basis that the amount claimed as a debt was not in fact payable, because his taxable income was different from that assessed by the Commissioner as varied by the AAT: Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 69 ALJR 223. In this situation the decision of the AAT would not create an issue estoppel in the technical sense: Midland Metals much the same.
One example of a situation where the decision of a body other than a court is made conclusive between the parties, so as to bind them in subsequent litigation, is the decision of a referee under the Building Units and Group Titles Act 1980. This Act contains in Part 5 provisions for the settlement of certain disputes by referees and by tribunals, constituted by a Stipendiary Magistrate or Acting Stipendiary Magistrate (s 96). There is an appeal to the Supreme Court of a question of law (s 108) but otherwise no appeal from the decision of the tribunal: s 109. An order made under Part 5 for the payment of money may be registered in the Magistrates Court “whereupon the order shall be deemed to be a judgment that requires payment of money duly made by a Magistrates Court Act 1921 and may be enforced accordingly.” A decision of a referee or tribunal in relation to a dispute is therefore conclusive for the purposes of the parties to that dispute and binds them in subsequent litigation: Victorian Professional Group Management Pty Ltd v The Proprietors “Surfers Aquarius” Building Units Plan No.3881 [1991] 1 QdR 487 at 495.
It is also possible for legislation to provide that courts will be bound by the determination of issues by administrators, even if they could not be characterised as judicial tribunals. For example, at least until relatively recently, it was established that the decision of the Commissioner of Stamp Duties would bind a court except where the court was considering an appeal by way of case stated pursuant to s 24 of the Stamp Act 1894. At one time the position was that, although an appeal by way of case stated under s 24 was the only means of appeal against the decision assessing duty at a particular amount, if the duty was not paid and was sued for by the Commissioner as a Crown debt pursuant to s 4B of the Act the issue of whether any and what duty was payable could be ventilated at the trial: O'Sullivan v Commissioner of Stamp Duties [1984] 1 Qd R 212 at 214, 229. That view may not have survived the decision of the Full Court in the Commissioner of Stamp Duties v Edmunds [1989] 1 Qd R 271, where in an action to recover duty following a reassessment there was a successful demurrer to a defence disputing liability to pay, on the ground that the only basis on which the reassessment could be challenged was by way of appeal by case stated pursuant to s 24. But in any case by s 77 of the Stamp Act Amendment Act 1988 s 78A of the Stamp Act 1894 was amended by inserting subs (1A) which was to the same effect as s 177 of the Income Tax Assessment Act. The result was that in any action to recover stamp duty it was not open to the defendant to defend on the ground that the amount assessed by the Commissioner as the amount payable was not in fact properly payable, as that could only be disputed by way of appeal by case stated under s 24. A case stated ought to consist of a statement of ultimate facts on which a question of law arose, so that the court simply decides the issue of law and does not review any findings of fact by the Commissioner: R v Rigby (1956) 100 CLR 146, and see Mack v Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373. The practical effect of such provision was that the decision of the Commissioner on an issue of fact relevant to an assessment of stamp duty gave rise to something which, although not an issue estoppel, had very much the same practical effect.
The situation was ameliorated somewhat by the passage of the Judicial Review Act 1991 which provided an alternative means of disputing a decision of the Commissioner, at least in circumstances where the appeal by way of s 24 was not adequate: Westpac Banking Corporation v Commissioner of Stamp Duties [1994] 1 Qd R 99. One of the grounds upon which a decision could be reviewed under that Act was that there was no evidence or other material to justify the making of the decision: s 20(2)(h), s 24. Nevertheless this did not give an appeal on the merits in relation to a disputed question of feet, and there was still some unfairness in such an arrangement, in Queensland and indeed in similar provisions in other states. This led to the reconsideration of the matter by the High Court in Commissioner of Stamps v Telegraph Investment Co. Pty Ltd (1995) 184 CLR 453, although even there the matter was dealt with as one of statutory construction. The effect of that decision on the Queensland Act has now being considered by the Court of Appeal in EIE Ocean BV v Commissioner of Stamp Duties (Appeal No.279/95, 17.12.96)
Hence, if the legislation makes conclusive the determination of the Department of Social Security as to the amount repayable by way of overpaid benefits, subject to appeals to the SSAT and otherwise in accordance with the legislation, there could be no issue in the Magistrates Court as to the amount recoverable. Although it may be incorrect to attach the label “issue estoppel” to such a situation, the practical affect would be the same and it would have been appropriate (subject to procedural and discretionary considerations) to give judgment for the plaintiff as was done. It is therefore necessary to consider the terms of the legislation in question to determine whether the decision of the SSAT is conclusive.
The Social Security Act 1991
Although the payments in question were made under the Social Security Act 1947, the review by the SSAT was conducted under the 1991 Act and it is necessary to look at that Act to determine the effect of that review on current litigation. The 1991 Act provides in s 1240 for an internal review by the Department and for further review by the SSAT in accordance with Part 6.2 of the Act. There are parties to proceedings before the tribunal: s 1260, and there are various provisions in the Act dealing with the procedure before the tribunal. Section 1255 assumes that a decision of the SSAT has effect, because it deals with the time at which it take effect. There is however no provision as far as I can see which stipulates that the decision is binding on the parties in some way, and in particular any which says expressly or by implication that such a decision is binding on the parties in any subsequent litigation relating to the recovery of an overpayment. There is an appeal from the SSAT to the Administrative Appeals Tribunal: s 1283. There can be a further appeal from the decision of the AAT to the Federal Court on a question of law: Administrative Appeals Tribunal Act 1975 s 44.
By s 1223, if an amount has been paid to a person by way of social security payment and the recipient was not qualified for the social security payment and the amount was not payable to the recipient the amount so paid is a debt due to the Commonwealth. It can be recovered by legal proceedings: s 1223(9)(c). Such proceedings may be brought in a court of competent jurisdiction: s 1232(1). Such a debt may also be recovered by way of deduction from social security payments (s 1231) or by way of gamishee notice (s 1233). There does not appear to be any provision in the Act which corresponds with s 177 of the Income Tax Assessment Act which I referred earlier or indeed says anything about the effect of the decision of the SSAT in subsequent litigation. At least I was not referred to any, and can not find one having looked at those parts of the Act dealing with recovery of such debts and review by the SSAT.
It is established that a decision to pursue an alleged overpayment is subject to review by the SSAT and the AAT: Director-General Social Services v Hangan (1983) 45 ALR 23; Director-General Social Services v Hales (1983) 47 ALR 281. In the former case Fox J said at page 26 that a decision that there had been an overpayment was not a determination of legal rights (see also pp 44-45 per Fitzgerald J), and in Re Taylor (1984) 6 ALD 500 at 503-4 Davies J and the other members of the AAT said that a decision to raise an overpayment “does not affect legal rights and liabilities. It is only a court of competent jurisdiction which can do that. Plainly, this tribunal has no jurisdiction to determine finally the amount of a debt recoverable under s 140(1). This tribunal is not a court.” The same would apply to the SSAT.
Effect of the decision of the SSAT
The position therefore is this. It is necessary in a practical sense before proceedings can be taken to recover an amount of an overpayment for an administrator to come to the conclusion that there has been an overpayment in a particular amount, and decide to take proceedings to recover it: Hangan (supra) at p.31,45. That is a decision which is subject to both internal review and review by the independent tribunals, the SSAT and the AAT, and there is an avenue for further appeals to a court on a question of law from a decision of the latter tribunal. Ultimately if there is still a decision that there has been an overpayment the result will be that the administrator may give effect to it by suing to recover the amount of the overpayment. Whether the decision of the SSAT has any and what effect as between the parties in legal proceedings pursuant to s 1232, or indeed legal proceedings depending on some other cause of action such as the alternative causes of action pleaded depends on what the statute provides. I can not find any provision giving it any particular effect; so far as I can see the decision that there has been an overpayment in that amount is not made conclusive by the statute for the purposes of the recovery action. There is nothing in the Act which makes the decision of the SSAT even relevant and admissible for the purposes of the proceedings in the Magistrates Court. Therefore if the matter is defended it will be necessary for the plaintiff to prove that there has been an overpayment of the amount claimed. It will not be entitled to rely on an issue estoppel either in the technical sense or in a practical sense that the decision of the SSAT is conclusive of the amount recoverable, and the decision of the Magistrate to the contrary was therefore wrong as a matter of law.
The Magistrate should not have given judgment on the basis that the effect of the decision of the SSAT was that it was not open to the appellant to dispute in the Magistrates Court the conclusion that the amount for which judgment was given was recoverable. The appeal should therefore be allowed, and the order and any consequent judgment set aside.
Delay
It may be not necessary for me to say anything in relation to the issue of delay. But if I am in error and the effect of the Act is that it was not open to the appellant to dispute liability for the amount found to have been an overpayment by the SSAT, so that the inevitable result of the proceedings in the Magistrates Court would have been judgment for the amount for which judgment was given, that in my opinion would have been an excellent reason for giving judgment in a summary way for that amount. There may have been some procedural issue as to whether the respondent had properly applied under Rule 145, but in my opinion if there is no triable issue the mere fact that the application is made late is no reason to refuse to give judgment. As was pointed out by Thomas J in Queensland Truss and Frame Pty Ltd (supra) at p.431, the real object of a rule permitting summary judgment is: “to provide a fast track to a plaintiff in a case where there is no proper justification for a trial, and to clear the court list of matters that would unnecessarily occupy the time of the court and the parties if they proceeded through the defended list. It is difficult to think that the courts should unduly limit their own discretion to hear such applications.” His Honour's judgment was agreed in by the two other members of the Full Court. There may be circumstances where delay in making the application is, in conjunction with other matters, relevant to the exercise of a discretion to give judgment; for example if it appears that the defendant has spent money in preparing for trial on the reasonable assumption that there would not be an application for summary rejudgment, such judgment ought perhaps to be given only on terms as to costs. In my opinion the matters referred to by Thomas J provide excellent reasons why delay alone should never be a reason for refusing summary judgment
Conclusion
It is not clear whether judgment has in fact being entered pursuant to the leave given by the order under appeal. The orders on appeal will be as follows:
- Appeal allowed.
- The Order of Mr Quinlan SM of 29 January 1997 set aside.
- In lieu thereof order that the plaintiff's application be dismissed.
- Order that any judgment entered pursuant to leave granted on 29 January 1997 be set aside.
- If it be necessary order that the defendant have liberty to defend Plaint No.23898 of 1994.
- Order that the respondent pay the appellant's costs of the application fixed in the sum of $448.
- Order that the respondent pay the appellant's costs of and incidental to this appeal to be taxed.