ATSIC v Page[2004] QDC 412

DISTRICT COURT OF QUEENSLAND

1. [1]
   In this matter the Applicant/Defendants (“Applicants”) seek a primary order that the orders of His Honour Judge Noud made on 29 September 2003 be set aside.

2. [2]
   The application is made pursuant to rr. 668 and 800 of the Uniform Civil Procedure Rules 1999 (Qld) (“the UCPR”).

3. [3]
   Secondary orders are sought but this is primarily an application to set aside judgment.

4. [4]
   The orders by Noud DCJ were made by consent of the parties to the application for summary judgment and were that:

i)The plaintiff have judgment against the First and Second Defendants in the sum of $159,875.50.

ii)The First Defendant and Second Defendants pay the Plaintiff’s costs of the proceedings to be agreed and if not agreed to be assessed.

iii)There be no order as to interest.

5. [5]
   The Respondent/Plaintiff (“the Respondent”) opposes the application for the orders now sought.

6. [6]
   A chronology of the relevant documents filed in this proceeding is as follows:

7. [7]
   The claim involves the exercise of the power of sale by the Respondent of the “Bio Café”, Cloncurry, previously owned and operated by the Applicants.

8. [8]
   The Applicants’ submissions are essentially that they were advised to consent (and reluctantly agreed) to the judgment being entered on 29 September 2003 by their legal advisers at the time, West Queensland Aboriginal and Torres Strait Islander Legal Corporation (“WQATSILC”), who advised them that they had “no option but to consent to the judgment” and that any consequences which flowed from that “would be minimal”.^[1]

9. [9]
   While there is no direct evidence from the said WQATSILC, there is sworn evidence from Morris James Henry, solicitor for the Respondent, that the Applicants account of the circumstances in which they consented to the judgment is denied by the solicitor from WQATSILC.^[2]

10. [10]
    It is clear that the Applicants were legally represented before the Court when the consent judgment was entered on 29 September 2003.

11. [11]
    At the hearing of the application before this court the Applicants read and filed by leave three (3) additional affidavits of Elaine Dawn McKeon (“McKeon”), Frances Margaret Page (sworn 28 June 2004 previously filed in Federal Magistrates Court) and Ronald Albert Page (sworn 14 September 2004) respectively.

12. [12]
    These affidavits form the basis of the Applicants’ contention that the said judgment should be set aside pursuant to r 668(1)(b) of the UCPR in that a particular series of facts have arisen since the judgment was granted which, if available beforehand, would have caused them not to consent to the judgment.

13. [13]
    The subsequent facts could be summarised as follows:

1. (a)
   The Applicant Ronald Albert Page was advised on 20 July 2004 by his previously estranged sister McKeon that in 1998 when she was the managing director of the Koutha Aboriginal Corporation (“Koutha”), she “had tried to buy the Bio Café from ATSIC”.

2. (b)
   McKeon states that in early 1998 she approached the regional manager of ATSIC “about tendering for the purchase” of the café and “asked” him to advise her when the property “was on the market”.^[3]

3. (c)
   McKeon further states that Koutha would have bid at any subsequent auction “in excess of $200,000” for the property.^[4]

14. [14]
    It appears neither McKeon nor Koutha were aware of any subsequent auction for the sale of the café but made no further enquiries as to the status of any proposed sale.

15. [15]
    The Applicants’ counsel advanced the argument that the court should set aside the consent judgment on the basis that McKeon’s affidavit establishes those “facts” referred to in r 668(1)(b) of the UCPR, entitling the Applicants for relief under that rule and that the court should exercise its discretion accordingly.

16. [16]
    It is true that the property in question was sold in June 1999 for a much lower figure than that for which there was an alleged contract for its sale in or about July 1997 (although whether there was in fact a contract in existence is a matter of conjecture). In any event, that is not a matter per se which is strictly relevant to the current application before the court. It may have general relevance as part of the background of the circumstances of this proceeding but its crucial relevance has been overtaken by subsequent events.

17. [17]
    It is well established that a court’s power to set aside or vary an order is limited (see Bailey v Marinoff (1971) 125 CLR 529).

18. [18]
    The Respondent’s counsel submits that r 668(1)(b) gives the court a “discretion” to set aside a judgment only if the circumstances set out in the rule apply i.e. facts are discovered after an order is made that if discovered in time would have entitled the person “to a different order”.

19. [19]
    I was referred to ANZ Banking Group Ltd v Hubner & Anor (unreported SC 97/220) where Jones J in discussing the precursor to the current rule (O 45 r 1 of the Supreme Court Rules) said:

“The provisions of O45 r1 apply only to proven or accepted facts not to claims that some facts or different facts may exist.”

20. [20]
    The overwhelming difficulty which the Applicants face in this application is the fact that they sought legal advice on the matter; were legally represented at the hearing and consented to the judgment against them.

21. [21]
    It was submitted on behalf of the Respondent that the judgment figure was a compromise of the claim in that it abandoned any claim for interest and therefore was in the true sense a contractual arrangement between the parties thereby importing the line of cases from Harvey v Phillips (1956) 95 CLR 235; Smith v Smith [1987] 2 Qd R 807; General Credits Ltd v Ebsworth [1986] 2 Qd R 162; and Rockett v The Proprietors “the Sands” Building Units Plan No 82 [2002] 1 Qd R 307.

22. [22]
    In some respects the factual circumstances in this case are similar in principle to General Credits v Ebsworth (supra)(see page 164 lines 10-25) but here there is the added factor that there was clear consideration for the compromise.

23. [23]
    While McKeon’s evidence might cause the Applicants to ponder what might have been, it does not in my view go anywhere near satisfying me that the purported facts to which she deposes were “proven” or “accepted”. They are at best highly speculative and at worst flimsy and do not in my view satisfy the standard which must be reached before r 668(1) (b) can be applied.

24. [24]
    For the reasons set out above, I am not persuaded that the Applicants have established that they are entitled to have the consent judgment entered on 29 September 2003 set aside on the grounds contained in r 668 of the UCPR and in the exercise of my discretion, in all the circumstances, I dismiss the application and order the Applicants to pay the Respondent’s costs of and incidental to the application to be agreed or assessed.