Prus-Butwilowicz v Moxey t/a NLM Auto Services
[2002] QDC 166
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- Appeal Determined (QCA)
- Prus-Butwilowicz v Moxey t/a NLM Auto Services[2002] QDC 166
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Prus-Butwilowicz v Moxey t/a NLM Auto Services[2002] QDC 166
Prus-Butwilowicz v Moxey t/a NLM Auto Services[2002] QDC 166
DISTRICT COURT OF QUEENSLAND
CITATION: | Prus-Butwilowicz v Moxey [2002] QDC 166 |
PARTIES: | jerry prus-butwilowicz Appellant and neil l moxey trading as nlm auto services Respondent |
FILE NO/S: | 991 / 2001 |
DIVISION: | Civil Jurisdiction |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court Southport |
DELIVERED ON: | 23 May 2002 |
DELIVERED AT: | Southport |
HEARING DATE: | 4 April 2002 |
JUDGE: | Judge Alan Wilson SC |
ORDER: | Appeal dismissed |
CATCHWORDS: | PRACTICE – DEFAULT JUDGMENT – SETTING ASIDE – requirement for affidavit “on the merits” Appeal from decision of Magistrate setting aside default judgment – applicant swearing short affidavit exhibiting lengthy, detailed and responsive pleading – practice under former Court rules – whether requirement for applicant to swear affidavit on the merits is mandatory under UCPR. Magistrates Courts Act 1921 s 45(2) Uniform Civil Procedure Rules r 920 Cases considered: Worldwide Production Pty Ltd v Hoffman (1982) Qd R 316 Palmer v Pemic (1980) WAR 61 Sharples v Northern Territory (1988) 91 FLR 11 Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 24 at 248 Middleton v Laurel Springs Management Services Pty Ltd (District Court Maroochydore, 17 May 2001 28/00) Silk & Textile Printers Ltd v Moore (1956) Qd R 496 Yankee Doodles Pty Ltd v Blemvale Pty Ltd (1999) BC9903401 Evans v Bartlam (1937) AC 473 at 480 Saunders v Hammond (1965) QWN 39 NMLA v Oasis Developments (1983) 2 Qd R 441 Champion v Fay (1983) 2 Qd R 416 (FC) Vosmaer v Spinks (1964) QWN 36 (FC) Alliance Acceptance Co Ltd v Makas (1976) 26 FLR 451 Chitty v Mason (1926) VLR 419, at 423: Heller Financial Services Ltd v Solchaniuk (1989) 99 FLR 304 House v the King (1936) 55 CLR at 505 Saunders v Esanda Finance Corporation Ltd (Supreme Court of South Australia, 31 May 1996, S5631) (BC 9602273) Langanis v Roberts, unreported, (Supreme Court of South Australia, Mullighan J, 15 July 1993, S 4043) (BC 9300368) Grimshaw v Dunbar (1953) 1 QB 408 Rosing v Ben Shemesh (1960) VR 173, at 176 Attwood v Chitchester (1878) 3 QBD 722 Nevill v Hanley (1888) 14 VLR 270 Evans v Bartlam (1937) AC 473, at 480 National Australia Bank Limited v Singh (1995) 1 Qd R 377 (CA) |
COUNSEL: | Mr A Maher for the appellant Mr S J English for the respondent |
SOLICITORS: | Odens Lawyers for the appellant Respondent self-represented |
- [1]This is an appeal from the decision of an Acting Magistrate, Mr O'Driscoll, delivered 7 September 2001 at Southport Magistrates Court in which he set aside a default judgment obtained by the appellant on 14 February 2001, the quantum of which was assessed by the Deputy Registrar at that Court on 2 March 2001 at $2,068.00 for claim, and $93.00 for costs. Because that sum is less than $5,000, leave to appeal is necessary: Magistrates Courts Act 1921, s 45(2). The respondent had, however, no objection to the appeal being heard with the application for leave to appeal, as permitted by UCPR r 786(8), and that is what occurred.
History of the Matter
- [2]On 15 September 2000 the respondent issued a “minor debt” claim in Southport Magistrates Court against the appellant, claiming $1,561.00 for mechanical goods and services he had allegedly sold and rendered to the appellant in January and February 1999. The appellant filed a defence on 9 November 2000 and then, on 9 January 2001, filed a separate claim of his own against the respondent in Southport Magistrates Court for damages for “breach of duty of care”, or under s 52 of the Trade Practices Act 1974, or s 38 of the Fair Trading Act 1989, in the sum of $2,180.00, combined with an action in detinue or, alternatively, damages of $475.00. On 9 January 2001 the appellant filed an application asking for the two actions to be consolidated. The appellant’s claim and statement of claim, together with that application, were apparently served upon the respondent on 16 January 2001. The application was heard by a Magistrate, Mr Mellors, on 5 February 2001. The respondent was not present. The Magistrate consolidated the matters, and also ordered that the respondent file his defence in the appellant’s action within 7 days of that date.
- [3]Previously, on 8 January, the appellant and the respondent had appeared before Ms Batts, Referee in the respondent’s minor debt claim, which she adjourned to the Registry pending the hearing of the appellant’s application for consolidation. The respondent swears that on that day the appellant told the Court his inquiries at the Registry indicated a likely hearing date for that application would be 1 February 2001. The respondent says, however, that when he received the appellant’s application for consolidation it bore the date 5 February 2001. As a result, he says, he attended at the Registry on 31 January 2001 and made inquiries to check the time and date of the hearing, and swears he was informed by a young female counter clerk that there was no action pending between the plaintiff and himself. As a consequence of that advice he did not appear on 5 February.
- [4]The appellant swears that after the hearing on 5 February he sent a copy of the order for consolidation, and requiring the respondent’s defence within 7 days of 5 February, to the respondent by fax on the evening of 8 February 2001, and by letter posted that day. The respondent swears he was never served with that order, and was not aware of it until he consulted his present counsel, Mr English, some months later. When he failed to file a defence in accordance with Mr Mellors’ order the appellant applied for judgment by default, which the Deputy Registrar entered (for damages to be assessed) on 14 February 2001. Subsequently the appellant filed affidavits in respect of his alleged damages and the Deputy Registrar assessed them and entered judgment, in the sums mentioned earlier, on 2 March 2001.
- [5]The respondent had engaged solicitors, Hiscocks Lawyers, some time it appears in early February 2001. Those lawyers wrote on his behalf to the solicitor named on the appellant’s claim, Mr Field of Southport. By letter 19 February 2001 Mr Field responded, asserting he had no instructions and had never acted for the appellant. (This was, in fact, an error by Mr Field. His affidavit sworn 19 December 2001 shows he had been asked to act for the appellant, who is a barrister, but had forgotten it.) On 5 March 2001 the appellant wrote to the respondent directly enclosing copies of the default judgment, seeking payment in full. On 9 March the respondent’s then solicitors filed a notice of intention to defend, and defence in the appellant’s action. The appellant, no doubt comforted by his default judgment, ignored that pleading and moved to enforce the judgment, and on 12 April 2001 it was ordered that the respondent attend before the Court for an “enforcement hearing”. This was apparently served upon the respondent’s then solicitors by facsimile and they wrote to the appellant’s solicitors on 10 May 2001 seeking an adjournment of that hearing so the respondent might attend an engagement associated with his trade as a mechanic. On 15 May 2001 the respondent swore a “statement of financial position” which was, however, incomplete and on 18 May the respondent’s solicitors asked for more time to provide some information. On 25 May 2001 the appellant’s solicitors sent the respondent’s then solicitors a facsimile demanding payment of the judgment debt. Nothing was heard until those solicitors, Hiscocks, sent a facsimile to the appellant’s solicitors on 15 July 2001 to the effect they no longer acted for the respondent.
- [6]The respondent swears that although he contacted his solicitors, Hiscocks Lawyers, for advice when he was served with the enforcement proceedings, he was never informed by them that he could apply to the Court to set aside the default judgment; and, indeed, that he did not learn of that judgment until he consulted his present barrister, Mr English. The date upon which Mr English became involved is not clear but on 26 July 2001 the respondent applied to have the appellant’s default judgment of 14 February 2001 set aside, supported by a lengthy affidavit from himself deposing to the various matters recorded above. Shortly afterwards, on 3 August 2001, the respondent filed an affidavit to which was attached a long defence and counter-claim, settled by Mr English.
- [7]The application was heard by an Acting Magistrate, Mr O'Driscoll, on 23 August 2001. His decision was delivered on 7 September 2001, and he set aside the judgment. (That hearing was slightly complicated by the appellant’s application to file a further affidavit for himself, refused by the Magistrate in the face of an objection from Mr English, and because it was incomplete. At the hearing of the appeal before me, the respondent withdrew that objection and I read the affidavit and the large number of exhibits with it.)
The Acting Magistrate’s Decision
- [8]In short reasons delivered 7 September 2001 the learned Acting Magistrate said, relevantly:
“In relation to Mr Maher’s submissions that the applicant has failed to raise a prima facie defence, the affidavit of Mr Moxley dated the 26th July 2001, paragraph 22 indicates that he does have a good defence and I am of the opinion that assertion is insufficient and if left at that I would agree with Mr Maher’s submissions. However, the affidavit of the 3rd August 2001 goes further and does raise a prima facie defence on the merits, and has been particularised in the draft defence and counter-claim.
I am genuinely concerned that the applicant did not receive the order of consolidation and direction to file a defence made by Mr Mellors, or alternatively it was not sufficiently brought to the attention of the applicant.
I am also genuinely concerned as to the proper and accurate assessment of damages which forms the judgment.
I am of the opinion that (sic) appears to be an irregularity as to the assessment of the unliquidated damages claim by the plaintiff.
After due consideration of the material filed, the relevant authorities, and submissions made by counsel I am of the opinion in the exercise of my discretion that it is appropriate to grant this application to set aside the judgment by default.”
Having set aside the judgment and the subsequent enforcement process, he also directed the defendant file his defence and counter-claim within 7 days; and, confirmed the appellant’s claim was to be consolidated with the respondent’s minor debt claim, and listed for a directions hearing upon the written request of either party.
The Pleadings
- [9]As pleaded, the appellant’s claim asserted he was a regular customer of the respondent’s, and told him he was looking to purchase a good second-hand car for his wife. The respondent telephoned him in late August 1998 and, allegedly, said he had found a good car and recommended the appellant come to his garage and inspect it. The appellant did so and, he alleges, then asked about a rattling noise from the front of the engine but was assured by the respondent there was “nothing to worry about”. The claim also alleged the respondent told the appellant he knew the car, had serviced it regularly and it was in “very good” mechanical condition. As a consequence, the appellant alleges, he was induced to buy the car subject to some minor rectification work which the respondent told him would cost $150.00. The claim then sets out a series of defects which allegedly arose after the appellant purchased the vehicle, including problems associated with the rattling noise, and damage to the engine requiring its replacement after it overheated while being driven by the appellant’s wife. The various repair costs, amounting to $2,180.00, are said to be payable by the respondent as a consequence of his breach of a duty of care, or misleading and deceptive conduct under s 52 of the Trade Practices Act 1974, or s 38 of the Fair Trading Act 1989.
- [10]In his proposed defence the respondent denies he ever made representations to the effect the vehicle was in very good mechanical condition, or would be reliable and last for a long time. He says the need for a replacement engine arose because the appellant’s wife drove the vehicle without checking the temperature gauge and thereby “cooked” it. The pleading also asserts that, in law, the provisions of the Trade Practices Act, and the Fair Trading Act, do not apply. The defence is lengthy, careful, and detailed. It shows the case would, if tried, devolve to issues of credit between the appellant and the respondent, and some legal argument.
An Affidavit on the Merits
- [11]The appellant’s principal point is that leave ought to be granted for an appeal because the matter involves an important principle – the need for an applicant, seeking to set aside a default judgment, to swear an affidavit on the merits. The Magistrate ought not, it is argued, have been satisfied with the short, three-paragraph affidavit sworn by the respondent on 3 August 2001, which simply deposes that he has retained Counsel to settle his defence and counter-claim, and exhibits a copy of that pleading.
- [12]It is true that, under the earlier rules, an affidavit in support of an application of this kind was considered to usually require direct evidence from persons able themselves to swear to the facts, even though the application was interlocutory: Worldwide Production Pty Ltd v Hoffman (1982) Qd R 316; Palmer v Pemic (1980) WAR 61; Sharples v Northern Territory (1988) 91 FLR 11; and, Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 24, at 248 per Gibbs J. As his Honour Judge Dodds noted recently in Middleton v Laurel Springs Management Services Pty Ltd (District Court, Maroochydore, 17 May 2001, 28/00) in Sharples Asche J thought that the principle behind the rule requiring an affidavit from a person who was in a position to prove the defence, or who had personal knowledge of events out of which the claim arose, was that a person who had a regularly obtained judgment is entitled to it unless assured the respondent has an arguable defence, and the assurance comes from “somebody who is personally concerned with that defence and is sufficiently personally concerned in that defence to make an affidavit concerning the details of that defence knowing full well the penalties of perjury”.
- [13]From time to time the requirement has been expressed in fairly strong terms; in Silk &Textile Printers Ltd v Moore (1956) Qd R 496 Jeffriess AJ said at 498:
“In an application of this nature where a defendant seeks to set aside a judgment signed by the plaintiff in default of a plea it is not sufficient for him to allege that he has a defence upon the merits and swear to such defence generally. He must go further and disclose what such merits are, and show to the Court that his application is bona fide.”
More recent judgments, under the former Rules of the Supreme Court, were in the same vein. In Yankee Doodles Pty Ltd v Blemvale Pty Ltd (1999) BC 9903401, Atkinson J said the applicant’s affidavit must set out all the defences upon which the defendant intended to rely, and briefly state the facts by which the defendant sought to establish those defences; and, that a mere statement by the defendant that he or she has a good defence is not sufficient to justify a review of the exercise of judicial discretion.
- [14]The learned authors of the commentary in Butterworths “Civil Procedure – Queensland” suggest the practice has not altered under the Uniform Civil Procedure Rules 1999: para 290.10, but three matters suggest that view may not, with respect, be correct. First, r 290 (albeit that it is in the same form as the former rule, DCR 146(4)) speaks simply of the Court’s discretion, without reference to conditions, or requirements:
- “290The Court may set aside or amend a judgment by default under this division, and any enforcement of it, on terms, including terms about costs and the giving of security, the Court considers appropriate .”
Secondly, the requirement was always nothing more than a method for the applicant to discharge the onus of showing what was called, variously, a “defence on the merits” (Yankee Doodles [supra]) or a “prima facie defence” (Evans v Bartlam (1937) AC 473 at 480) or, as expressed in Saunders v Hammond (1965) QWN 39, “a substantial ground to the defence”. The question whether an applicant has met that onus is one which must vary, from case to case. In NMLA v Oasis Developments (1983) 2 Qd R 441, for example, McPherson J (as he then was) exercised the discretion against an applicant who had failed to swear up to the quantum of a counter-claim upon which it relied. In the present case, however, the pleading attached to the applicant’s affidavit responds, with care and precision, to each of the respondent’s assertions. Thirdly, as Mr English submitted, cases under the former rules were decided in circumstances where defendants could often plead simple denials, and no more, a situation quite dramatically changed by UCPR r 166 and, in particular, r 166(4) which provided that a denial or non-admission must be accompanied by a direct explanation for the party’s belief that the allegation is untrue or cannot be admitted. Of this requirement the learned author of the commentary in Butterworths service says, at para 166.5:
“Sub-rule (4) is also extraordinary. Rules prohibiting evasive denials or non-admissions are well known. They call for a discretionary judgment by the pleader and, if challenged, by the Court as to the adequacy of the denial. However, this sub-rule…appears to require a statement of the evidence to be led by the party making the denial or a statement of opinion as to why the plaintiff will not be able to prove its case in a case of non-admission.”
- [15]The defence exhibited to the respondent’s pleading satisfies the sub-rule, in terms of particularity, and explanation. For example, it specifically traverses, and carefully responds to, each matter pleaded by the appellant which is alleged to give rise to a duty of care, and breaches. It could not been more fulsome, or responsive. Significantly, I think, it contains a number of precise particulars of words the respondent alleges he spoke to the appellant concerning the motor vehicle, pleaded in terms which give rise to a strong inference they reflect his instructions to his barrister. His affidavit, exhibiting the defence and counter-claim, swears it was “settled by Mr S J English of Counsel”.
- [16]In those circumstances I think it excessive and inappropriate to insist upon strict compliance with an additional technical requirement that the respondent, when applying to set the judgment aside, also swear a long affidavit touching the same matters as appear in his long, detailed pleading. The action is a relatively straightforward one and involves, principally, matters of credit. The primary question is whether or not a person applying to set aside judgment has shown that he has, at least, a substantial ground of defence, or a prima facie defence. As McPherson J said in NMLA v Oasis Developments (supra) at 449:
“In Aboyne Pty Ltd v Dixon Homes Pty Ltd (1980) Qd R 142, Kelly J regarded an application to set aside such a judgment, when regularly entered, as requiring the Court to consider whether the defendant had given a satisfactory explanation of its failure to appear; any delay in making the application; and, whether the applicant defendant had a prima facie defence on the merits. Speaking generally, it may be said that it is the last of these considerations that is the most cogent. It is not often that a defendant who has an apparently good ground of defence would be refused the opportunity of defending, even though a lengthy interval of time had elapsed provided that no irreparable justice is thereby done to the plaintiff…” (My italics).
The respondent’s affidavit and the careful pleading exhibited to it point, persuasively, to his having apparently good grounds of defence, to which strict technical requirements ought not be an absolute bar.
Judgment Irregularly Entered?
- [17]The Court has an inherent jurisdiction to set aside irregular judgments: Champion v Fay (1983) 2 Qd R 416 (FC); and is often bound to do so ex debito justitae: Vosmaer v Spinks (1964) QWN 36 (FC); Alliance Acceptance Co Ltd v Makas (1976) 26 FLR. The position was well summarised by Dixon AJ (as he then was) in Chitty v Mason (1926) VLR 419, at 423:
“A distinction is drawn between a summary judgment obtained in accordance with the rules, that is, a judgment regularly obtained and in good faith and one which is irregularly obtained or obtained in bad faith. The former will not in general be set aside except upon an affidavit of merits by the defendant; that is, upon his showing the Court that he has a fairly arguable defence.” The latter will be set aside in the interests of justice irrespective of the merits of the defendant’s case (My italics).
See, too, Heller Financial Services Ltd v Solchaniuk (1989) 99 FLR 304.
- [18]The respondent attributes his failure to attend the hearing on 5 February 2001 to confusion on his own part about that date, compounded by misinformation which he says was given to him by a Court Registry official. His failure to deliver a defence arose, he says, because he received neither a fax nor a letter from the appellant with information about what occurred on that day. His delay in bringing the application to set aside the judgment was caused, he says, by his then solicitors’ failure to advise him the procedure was available. These assertions were attacked by Mr Maher on the basis they were inherently improbable. It is true, certainly, that in the intervening period (between judgment, and the application to set it aside) the respondent’s then lawyers sent the appellant a letter dated 20 March 2001 enclosing a notice of intention to defend, and a defence and on 26 March the appellant replied giving those solicitors advice about what had occurred and enclosing a copy of a default judgment and threatening enforcement proceedings. Later, too, notice of an “enforcement hearing” was given, and an adjournment was sought by the solicitors. Mr Maher pointed to the absence of any affidavit from the solicitors then acting for the respondent as a matter giving rise to a powerful inference they would not have corroborated his assertions about, at least, the absence of any advice to him concerning the existence of the judgment, and its nature and effect, and steps which might be taken to set it aside.
- [19]The learned Magistrate, quite properly I think, stopped short of making any specific findings about these matters but, rather, expressed no more than his “genuine concern” about them. In the face of conflicts on the affidavits, untested by cross-examination, I do not think those conclusions necessarily established any error, on his part, in exercising his discretion in the manner described in House v the King (1936) 55 CLR 499, at 505.
- [20]As to the possibility of an error or oversight, or plain bad advice by or from solicitors, different Courts have, from time to time, reached different conclusions. Mr Maher referred me to an unreported decision of Landers J, in Saunders v Esanda Finance Corporation Ltd (Supreme Court of South Australia, 31 May 1996, S 5631 (BC 9602273)) in which one of the grounds advanced in an appeal from a decision of a Magistrate refusing the appellant’s application to have a judgment set aside after non-compliance with an order for discovery was the failure, by the appellant’s former solicitor, to advise the appellant of the outcome of a hearing and take steps to provide discovery. Landers J said, at p 6:
“It is not sufficient for a party merely to point to the default of his or her own solicitor …the procedures of a Court are not only for the guidance of the parties, but also for the guidance of their agents, mainly, their legal advisers. A party, in my opinion, ordinarily must be bound by the action, or indeed, the inaction of the party’s legal advisers. It is imperative for the orderly working of the rules of Court that legal advisers understand that their failure to act when required will be to the detriment of their clients. If it was otherwise, costs apart, there would be no sanction upon the conduct of legal practitioners. A party cannot, where it suits, distance himself or herself from his or her legal advisers and put the legal adviser in the position of a third party. To hold otherwise would mean that every time there was a default in the compliance with an order of the Court, or a rule of the Court, by reason of the default of a party’s legal adviser, the party could claim that the party himself or herself was not in default.”
- [21]There are, however, a number of cases in which default judgment has gone in because of an oversight, or error of a party’s solicitor and the question whether that should tell against the client is weighed against the other matters relevant to the discretion including, particularly, the existence of an arguable defence; the extent to which delay, and possible prejudice, are germane; and, the circumstances in which judgment has been entered. In a case to which Mr English referred me, Langanis v Roberts, unreported (Supreme Court of South Australia, Mullighan J, 15 July 1993, S 4043 (BC 9300368)), Mullighan J said at pp 2-3:
“Despite the paucity of information in the affidavit of the appellant’s solicitors in support of the assertion that the appellant has a reasonable excuse for not filing the defence in time, it appears that he did instruct his solicitors, but they did not act, within time. Usually, in this context, a party will not have to bear the consequences of the neglect of his solicitors: Collins Book Depot Pty Ltd v Bretherton (1938) VLR 40,k at 44, Gamble v Killingsworth and Mclean Publishing Co Pty Ltd (1970) VR 161 and Kostokranellis v Allen (1974) VR 597, Taylor v Taylor (1979) 53 ALJR 629, Hill v Parke Davis and Co Ltd (1986) 41 SASR 349, at 354 and Davis v Pagett (1986) 70 ALR 793 are examples of neglect, and in some instances substantial neglect on the part of legal practitioners and where the party in default has been permitted to prosecute or defend proceedings. Of course, these cases were not decided in the context of a threshold test before the exercise of a discretion is to be considered, but they do accept that the conduct to be excused is usually that of the litigant, not the solicitor.”
- [22]While the absence of an affidavit from the former solicitor is relevant, there may be a number of explanations. The Acting Magistrate’s finding that the original order of 5 February was not sufficiently brought to the attention of the applicant was one which (again, in the face of untested allegations in the respondent’s affidavit) was open to him. The primary relevance of these matters arises, I think, in the context of delay and that is a matter to be examined in the context of possible prejudice to the appellant: Grimshaw v Dunbar (1953) 1 QB 408; Rosing v Ben Shemesh (1960) VR 173, at 176. A delay of 13 months was held not to be a bar, so long as no irreparable harm had been done to the plaintiff which could not be compensated for in costs, in Attwood v Chitchester (1878) 3 QBD 722, but three weeks was held to be too long in Nevill v Hanley (1888) 14 VLR 270. As the judgment in Evans v Bartlam (1937) AC 473, at 480 illustrates, however, each case will depend on its own facts, and the question whether the consequences of the defendant’s delay can be adequately compensated for in costs, and whether the explanation for the delay is reasonable, are matters to be considered in the exercise of the Court’s discretion. No obvious prejudice, apart from the fact of the delay itself, arises here.
- [23]Even if the circumstances alleged by the respondent are categorised as dubious, it is uncommon that the Court refuses the opportunity of defending to a defendant who has an apparently good ground of defence, where no irreparable prejudice is thereby done to the plaintiff: National Australia Bank Limited v Singh (1995) 1 Qd R 377 (CA).
Summary
- [24]In all of the circumstances I am not persuaded the Acting Magistrate’s conclusion that the circumstances in which the judgment was entered were irregular and (by inference) that it should be set aside ex debito justitae, necessarily involved a wrongful exercise of his discretion. Even if that conclusion is wrong and the judgment was regularly entered, I am not persuaded the Magistrate was in error in accepting that the defendant had given a satisfactory explanation for his failure to appear; the delay in making the application ought not be a bar to it; and, that the exhibition of a pleading which fully complied with the rules to an affidavit sworn by him was sufficient to establish a prima facie defence on the merits. Because I accept these points, and the last-mentioned in particular, involve an important principle, I find that leave to appeal ought to be granted; but, that the appeal should be refused.
- [25]I will hear submissions about costs.