Ehlers v Consolidated Meat Group Pty Ltd
[1998] QDC 339
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- Unreported Judgment
- Ehlers v Consolidated Meat Group Pty Ltd[1998] QDC 339
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Ehlers v Consolidated Meat Group Pty Ltd[1998] QDC 339
Ehlers v Consolidated Meat Group Pty Ltd[1998] QDC 339
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No 2029 of 1998 |
[Before McGill SC DCJ]
[Brian Ehlers & Marie Josephine Ehlers & Consolidated Meat Group Pty Ltd]
BETWEEN:
BRIAN EHLERS | First Plaintiff |
AND:
MARIE JOSEPHINE EHLERS | Second Plaintiff |
AND
CONSOLIDATED MEAT GROUP PTY LTD | Defendant |
JUDGMENT
Judgment delivered: | 8 September 1998 (ex tempore) |
Catchwords: | PRACTICE – jurisdiction – two plaintiffs – total of claims of both plaintiffs must not exceed monetary limit PRACTICE – default judgment – whether judgment irregular – whether pleading effective – whether good defence on the merits District Court Rule 146 Ezi Frame Pty Ltd v. Al-cote (Australia) Pty Ltd [1982] Qd.R. 602 applied |
Counsel: | J.P. Kimmins for the applicant/defendant |
Solicitors: | S. Farrall (article clerk) by leave for the plaintiff/respondent |
Hearing Date: | 8 September 1998 |
DISTRICT COURT | No 2029 of 1998 |
APPELLATE JURISDICTION
JUDGE McGILL SC
BRIAN EHLERS | Respondent (First Plaintiff) |
and
MARIE JOSEPHINE EHLERS | Respondent (Second Plaintiff) |
and
CONSOLIDATED MEAT GROUP PTY LTD ACN 065 093 709 | Appellant (Defendant) |
BRISBANE
DATE 08/09/98
ORDER
HIS HONOUR: This is an application to set aside a default judgment which was entered on 28 August 1998. The plaint claims damages for negligence in the case of the first plaintiff and damages for loss of consortium in the case of the second plaintiff, who is alleged to be the wife of the first plaintiff.
No entry of appearance and defence has been filed on behalf of the defendant. The plaint was apparently served on about 13 July 1998, having been filed on 7 July 1998, and the appearance was therefore overdue by the time the default judgment was entered. In terms of time, therefore, the default judgment was regular.
Prior to entering the default judgment, there was a telephone call between the solicitors for the plaintiff and someone on behalf of the defendant company where the defendant's attention was drawn to the fact that the time for entering appearance was overdue and the defendant was warned that it was exposed to the risk of a default judgment.
The first plaintiff claims to have been on the premises on which the defendant was carrying on a business of manufacturing and selling processed meat for the purpose of taking delivery of pallets of smallgoods and that while he was in the process of shrink wrapping a pallet of smallgoods, it was moved by an employee of the defendant, causing the first plaintiff to injure his knee. This is alleged to have been caused by the negligent of the defendant and to have resulted in injury, loss and damage to the first plaintiff and a loss of consortium to the second plaintiff.
An application has now been made to set aside the default judgment. It was argued first that the judgment had been irregularly entered. The first plaintiff claims $250,000 damages for negligence and the second plaintiff $50,000 damages for loss of consortium.
This Court has jurisdiction pursuant to section 68 of the Act to deal with all personal actions where the amount sought to be recovered does not exceed the monetary limit which is $250,000. A claim endorsed on the plaint should demonstrate that the amount claimed is within the jurisdiction conferred by section 68, although this is a matter which may be cured by amendment to remove what would otherwise be a valid objection to jurisdiction. See Startune Pty Ltd v. Ultratune Systems Australia Pty Ltd [1991] 1 Queensland Reports 192.
At the moment, however, the situation is that what is claimed is relief which is beyond the monetary limit and hence the action is not one, it seems to me, within the jurisdiction of the Court. There is no indication of agreement to a higher jurisdiction so that the Court is required by section 85 of the Act to transfer the proceedings to the Supreme Court, although there is also a provision under which the Court can strike them out.
I think the effect of the Act and the Rules is that claims by more than one plaintiff can be joined in the one action so long as the total amount claimed does not exceed the monetary limit. I think there is authority for that although I have not been able to find it in the time available. In any case, I think that is the true effect of the Act and Rules. It follows that the court was without jurisdiction and a judgment should never have been signed in this Court. It follows that the judgment was irregularly entered and should be set aside.
In case I am in error about the question of whether the claims should be added together for the purposes of determining the application of the monetary limit, I should deal, I hope briefly, with some of the other matters which have been argued.
Criticism was directed to the formulation of the judgment which has been entered. The name of the Deputy Registrar who signed the judgment is not stated on the judgment, nor is the date of the judgment, and the document initiating the hearing is described as “default of the defendant in entering an appearance and defence”.
There is strictly speaking no document which initiates the proceeding by which a Deputy Registrar signs judgment in default of entry of appearance and defence under Rule 146, but the standard form of the judgment requires that something be put in at that point and what has been put in at least identifies the basis upon which judgment was signed it is probably more helpful than leaving the place blank.
It was also submitted that the judgment was unclear in that it did not identify which plaintiff was to recover against the defendant and included the word “with” which appears to be surplusage.
I think that there is a good deal about the way in which this particular written document has been drafted which could have been improved but that none of those matters really affect its validity as a judgment, and at most, they would amount to non-compliance of the Rules so that by Rule 5 they were not void unless a Court so directed.
If the judgment were to stand it would probably be appropriate to direct that it be amended but since it is being set aside anyway, it is not necessary to consider that point further except to say that I do not think that defects in the formulation of the written judgment would itself amount to irregularities in entering the judgment for the purposes of Rule 146.
The next proposition is that the pleading was defective in point of pleading in a number of respects. It was alleged that there was no pleading that a duty was owed, which is an essential element in cause of an action of negligence. Duty is an essential element but what is required is to plead facts which, as a matter of law, give rise to a duty, and I think that what has been pleaded is sufficient facts to amount to a good cause of action in that respect. I do not think that the pleading is deficient in point of pleading.
In the same way, I do not think it is necessary to plead expressly that the second plaintiff's cause of action is based on a statute, namely the Law Reform Husband and Wife Act 1989. That is a matter of law and it is one which I think is hardly likely to take the defendant by surprise.
It is also argued that the pleading was defective because there is an incorrect date. It is alleged that this incident in paragraph 4 of the plaint, occurred on 7 December 1996. It has now been admitted in a letter from the plaintiff's solicitors that the accident actually occurred on 7 December 1995.
It follows that the claim in so far as it is based on an injury on 7 December 1996 is bad in fact but is, I think, good in point of pleading. What matters for the purposes of the principle in Macefield v. Galbransen, applied by Master Lee as he then was in Ezi-Frame Pty Ltd v. Al-Cote (Australia) Pty Ltd [1982] Queensland Reports 602, is whether the cause of action is properly pleaded rather than whether the facts alleged are true.
It is understandable that the Registrar, or if necessary, the Court on reference from the Registrar, should be able to tell by reading the pleading whether it discloses a good cause of action but there is no way the Registrar or a Judge can tell by reading the pleading whether the facts are true. The proposition that the facts are not true is something which goes to a defence of the merits but is not something which renders the pleading defective in point of pleading.
I think therefore that if the action had not been for an amount in excess of the jurisdiction of the Court, the judgment would have been regularly entered. If it had been regularly entered, I think it is probably sufficient to say that there is, by way of the letter from the plaintiff's solicitors, an admission that there was no cause of action in respect of injury suffered on 7 December 1996, and therefore, strictly speaking, there is a good defence to the claim as it is presently pleaded.
Even apart from that, the nature of the accident which is said to give rise to the plaintiff's injury, is such that I think it is not the sort of matter where a Court could say that the outcome on liability particularly in relation to the question of contributory negligence ought to be determined in a summary way. That is, a Court could not say that there is no prima facie defence.
I appreciate that once a judgment has been regularly entered the onus is on the defendant to show a prima facie defence but I think that that onus can be discharged in a particular case such as this, simply by demonstrating that the cause of action relied on occurred in circumstances where it is not obvious that the defendant is liable without any contribution from the plaintiff for the injuries suffered by the plaintiff.
How a defendant is able to show a prima facie defence must depend very much on the nature of the defence and the sort of action. It follows that if the judgment had been regularly entered, I would still have set it aside. The delay was not very great and the more important consideration in determining an application under Rule 146 to set aside a default judgment is the question of whether there is apparently a good defence, or at least in the context of this case, whether the issue of liability is one which ought to go to trial.
In the circumstances, however, the application is successful on the basis that there was no jurisdiction and the judgment is set aside.
HIS HONOUR: Now, you will want a time within which to enter an appearance and defence?
MR KIMMINS: Seven days, Your Honour.
MR FARRELL: Yes. Seven days is fine, Your Honour.
HIS HONOUR: I'll set aside the default judgment dated
28 August 1998 and extend time for entering an appearance to 15 September 1998.
...
HIS HONOUR: I order that the plaint be amended by reducing the first plaintiff's claim from $250,000 to $200,000 and by substituting in paragraphs 3 and 4 “December 1995” for “December 1996”.
Order that the respondents pay the applicant defendant's costs of and incidental to the application to be taxed in any event.