Schuurs v Springwood (Aust) Pty Ltd
[2005] QDC 290
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- Unreported Judgment
- Schuurs v Springwood (Aust) Pty Ltd[2005] QDC 290
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Schuurs v Springwood (Aust) Pty Ltd[2005] QDC 290
Schuurs v Springwood (Aust) Pty Ltd[2005] QDC 290
DISTRICT COURT OF QUEENSLAND
CITATION: | Schuurs v Springwood (Aust) Pty Ltd [2005] QDC 290 |
PARTIES: | DAVID SCHUURS Respondent (Plaintiff) v SPRINGWOOD (AUST) PTY LTD ACN 102 207 536) Appellant (Defendant) |
FILE NO/S: | BD1283 of 2005; M184 of 2004 |
DIVISION: |
|
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Beenleigh |
DELIVERED ON: | 6 October 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 12 September 2005 |
JUDGE: | McGill DCJ |
ORDER: | Appeal dismissed with costs |
CATCHWORDS: | APPEAL AND NEW TRIAL – Points and objections not taken below – case as conducted that factual basis of expert’s opinion need not be proved – point not open on appeal. PRACTICE – Adjournment – appeal from refusal – no basis to interfere with discretion Hopkins v Abela [1996] QCA 197 applied Rigarto Farms Pty Ltd v Ridolfi [2000] QCA 292 – applied. Sale v SPC Ltd (1993) 67 ALJR 841 - applied State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 – distinguished. Surfers Paradise International Convention Centre Pty Ltd v National Mutual Life Association of Australia Ltd [1984] 2 Qd R 440 – followed. Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239 – followed. Water Board v Moustakas (1988) 180 CLR 491 – applied. Watson v Watson (1968) 12 FLR 164 – applied. |
COUNSEL: | N.H. Ferrett for the appellant N. Jarro for the respondent |
SOLICITORS: | Tucker and Cowen for the appellant Winchester Young and Maddern for the respondent |
- [1]This is an appeal from a judgment given by a magistrate on 14 March 2005, that the appellant pay the respondent $27,031.08 including interest, together with an amount of costs. The respondent’s claim was that he was transporting a motor vehicle owned by someone else from Sydney to Brisbane, in connection with which it was being unloaded in Brisbane from the back of a car carrier by a forklift when it fell off the forklift and was damaged. The respondent’s case against the appellant was in contract as well as tort, the appellant having been contracted by the respondent to unload the vehicle. The magistrate found that there had been a failure to exercise reasonable care and skill in the unloading of the vehicle, and that finding was not challenged on appeal. Instead, there were a number of mostly procedural issues argued, and it was submitted that there was no proper evidentiary basis for the finding as to quantum made by the magistrate.
Evidence of value
- [2]It is convenient to deal with this last point first. What happened to the vehicle is essentially that it fell some distance to the ground and suffered extensive damage as a result of which it became uneconomic to repair. The respondent relied on the evidence of a loss assessor, two reports by whom were tendered at the trial on page 54, and see page 53, line 50. Both were marked Exhibit 8, which was unfortunate and may have contributed to one of them being attached at some point to the back of Exhibit 1. As a result, on the hearing of the appeal I could find only one, an earlier report dated 30 September 2003, among the exhibits produced with the file by the magistrates’ court registry, although I was provided by the parties with what was agreed was a copy of the other report, dated 6 October 2003.
- [3]It was not disputed that Mr Van Den Berg as a loss assessor was able to give evidence as to the value of the motor vehicle, but it was submitted that all he had actually said was that a fair price would be the amount paid at auction for it, which he believed to be a particular sum. There was evidence that the vehicle had been purchased at auction in Sydney, shortly before being transported to Brisbane. A price paid for something at an auction is some evidence of its value, and although it may not be conclusive evidence, in the absence of any other evidence of value there would be no obstacle to a finding on the basis of it. However, insofar as Mr Van Den Berg gave expert evidence as to valuation, it seems to me that it was contained in the proposition that a fair pre-accident value was the price paid at auction. His statement as to what that price was, was at best hearsay[1]. It was not a matter in respect of which he was able to give opinion evidence.
- [4]When a valuer is giving a valuation by reference to comparable sales, the valuer will often also be able to prove the details of the comparable sales by reference to information which is available for valuers and commonly used by them for this purpose, such as information held by the Valuer General’s department. This is strictly speaking hearsay, but it has always been regarded as legitimate for the valuer’s evidence to be based on comparable sales in this way without having the comparable sale specifically proved[2]. Where the valuer’s evidence is based on the proposition that the subject vehicle was sold and purchased at a particular price at a public auction, it is necessary in my opinion to prove what that price was by means of admissible evidence.
- [5]The respondent relied on some passages of oral evidence, the first of which was a statement of oral evidence by Mr Van Den Berg which was to the same effect as what was said in Exhibit 8: page 54, lines 7-12. That adds nothing to Exhibit 8, and suffers from the same difficulty, that he was not able to give original evidence of the sale price. The further evidence of Mr Van Den Berg did not in my opinion go further than this. The other passages relied on were no better.
- [6]At the end of the first day’s evidence there was some discussion about what further witnesses were to be called, and counsel for the respondent foreshadowed that he
had another witness who would give evidence at the adjourned hearing, the owner of the vehicle, about payment for the car at the auction: page 77. Because she was giving evidence only about that and one other matter, the solicitor for the appellant was asked whether he required that evidence to be called: page 78, line 8. At one point the solicitor for the appellant said that if she was not called, he did not think it would make much difference to the overall analysis: page 78, lines 48-50. There was some discussion about whether the other matter was really in dispute, and at page 79, line 25 the magistrate said:
“I think that from where I sit, and I may be really wrong here, but [the appellant’s solicitor] agrees that she paid that amount of money at auction, but he doesn’t necessarily agree that that means that there’s an indication of its value and he agrees that the money was paid – the $28,000-odd was paid…so if you are only going to call her to say she bought it at auction legitimately, I don’t believe you need to call that evidence. I could be wrong about that.”
- [7]The solicitor for the appellant responded:
“Yeah, well, the other thing is it would be a bit of a fishing expedition I’m thinking now because, I mean, really, all I can – I don’t have any evidence of this, but I’d like to talk to her about the auction, but only if she’s called. If she’s not called, I’m not going to call her. It’s a matter for him.”
- [8]There was then some discussion about whether she would give evidence by telephone or appear at the adjourned hearing, and the magistrate indicated it would be preferable if she came to the adjourned hearing rather than give evidence by telephone: page 80. At the end of the day then the matter seems to have been left essentially on the basis that she would be coming at the resumed trial. On the other hand, there was nothing said on behalf of the appellant to contradict the magistrate’s impression that it had been accepted on behalf of the appellant that the owner of the vehicle had purchased it at auction for $26,900. In the event she was not called at the resumed hearing on 8 February 2005. Nothing seems to have been said which was recorded on the transcript to explain her absence. At one point (page 95) the magistrate asked the respondent while he was giving evidence how much had been paid for the car at the auction and received the answer, “Whatever the paperwork says, Your Worship.” The matter was not touched on again.
- [9]This is somewhat unsatisfactory, but in my opinion in circumstances where the solicitor for the appellant had been present and heard the magistrate say, in effect, that he had accepted that the vehicle had been purchased at auction for that price, if that proposition were not correct, there was an obligation on him then and there to correct it. In circumstances where the respondent’s representatives had heard that statement and had been aware that it was not corrected, they may well have taken the view that it was unnecessary to call further evidence to prove that the vehicle was purchased at auction for that particular price. In those circumstances, it is not open for the appellant to raise on appeal the proposition that there was no evidence that the vehicle actually was purchased at that price. The appellant is bound by the conduct of its case at the trial[3]. Accordingly, this ground cannot succeed.
Defence of volenti
- [10]The next ground was that the magistrate erred in failing to deal in her reasons with the question of whether there was any contributory negligence or volenti. As to this, counsel for the appellant relied only on a failure to deal with voluntary assumption of risk. It was submitted that the defence of volenti had been raised by paragraph 5 on page 2 of the defence. The only part of the defence which was relevant was paragraph 5 as follows:
“The plaintiff or his employees, contractors or agents failed to secure the motor vehicle to the forklift in a proper or competent manner, causing the motor vehicle to fall from the forklift in the course of its unloading.”
- [11]The first difficulty with this is that a defence of volenti is one which must be pleaded specifically[4], and that pleading in my opinion does not properly plead that defence. The second difficulty is that the action claimed damages for breach of contract, and a defence of volenti is a defence to an action in tort[5]. Counsel for the appellant, however, relied on the decision of the Court of Appeal of New South Wales in Clarke v Coleambally Ski Club Inc [2004] NSWCA 376, to the effect that there was an equivalent defence in relation to an action for damages for breach of contract, in the form of waiver[6]. That may well be the case, in the sense that a party with the benefit of a contractual obligation to take reasonable care could waive that obligation, just as a party could waive a claim for breach of such an obligation. However, again this is something which ought to be specifically pleaded[7], and in my opinion that was not done in paragraph 5 of the existing defence.
- [12]Apart from that, it is difficult to see how such a defence of waiver could arise in the particular circumstances of this case. It does not appear that any defence of waiver was actively pursued by the appellant in the course of the trial. In those circumstances, there cannot be any error on the part of the magistrate in failing to deal with that defence in her reasons. If a defence of waiver was not pleaded, and was not in fact litigated at the trial, for reasons given earlier, in my opinion it is now too late to be raised on appeal by the appellant.
- [13]Indeed, there were other difficulties with the pleading for the appellant. Paragraph 5(b) of the statement of claim alleged a contractual obligation not to damage the vehicle. If there had been such a contractual obligation, it would have been sufficient to prove just that the vehicle had been damaged. Although that allegation in the statement of claim was admitted by the defence[8], I was told that the action was run on the basis that the contractual obligation was to take reasonable care and exercise reasonable skill to avoid damaging the vehicle, which sounds more plausible to me, and that issue was dealt with by the magistrate in her reasons.
Plaintiff as bailee
- [14]There was also some challenge raised to the entitlement of the plaintiff to recover substantial damages. The vehicle had been bought at the auction by someone else, and the position appears to be that the owner of the vehicle, Aquarian Warehouse Pty Ltd, arranged for the respondent, carrying on business as Gemini Haulage Car Carrying Division, to transport the vehicle from Sydney to Brisbane. The respondent had then contracted the appellant to unload the vehicle from the respondent’s car carrier. After the vehicle was damaged, the owner claimed on the respondent, who in turn claimed on the appellant: Exhibit 6. Subsequently, the claim by the owner of the vehicle against the respondent was settled for the amount of $28,049.50, pursuant to a release discharge and indemnity executed by Aquarium Warehouse Pty Ltd on 17 November 2003: Exhibit 11. In connection with this, Aquarium Warehouse transferred its title to the vehicle to the respondent.
- [15]It is apparent from this and without any further investigation that, when the vehicle came into the possession of the respondent for the purpose of moving it from Sydney to Brisbane, he became a bailee of the vehicle. As such, he had standing to bring an action in respect to damage to the vehicle against a third party to the bailment, such as the appellant[9], and in any case, as the other party to the contract with the appellant, he was the only person who could sue on that contract. The fact that he had paid this amount in settlement of the claim against him by the owner of the vehicle was relevant to the assessment of the loss suffered by him as a result of the breach of contract by the appellant which the magistrate found had occurred.
Refusal of adjournment
- [16]The other matters raised by the appeal are procedural matters. The first arises because when the matter first came on for trial on 8 October 2004, the appellant sought an adjournment, which application was refused. When applying for the adjournment, the solicitor for the appellant conceded that there had been a request for trial date signed stating that the action was ready for trial, but claimed that there had been no other documents received from the plaintiff apart from the claim and a statement of claim, and that he had only recently discovered the plaintiff was proposing to call six witnesses. It was submitted that it was a fairly complex matter, which dealt with issues of bailment, issues of what might raise an estoppel regarding the settlement of a previous claim, contractual issues, exclusion clauses and negligence. It was submitted that the appellant had not really had an opportunity properly to prepare and to respond to the evidence that was likely to be given by the plaintiff, and the adjournment was sought on that basis.
- [17]The second ground was that the appellant had discovered only that morning that there was potentially insurance cover available in respect of the claim. It appears that, despite the proceedings, and indeed some correspondence before action, the defendant had not properly investigated the question of insurance until, as the appellant’s solicitor put it at page 6, “I had a hunch and called the various brokers that have previously acted for this particular party for the defendant and lo and behold there was insurance that was put in place some days before this event, so it was just a very fortunate coincidence.” As the magistrate pointed out, it was a pity that that had not been done when instructions were first obtained. The concern on this head was that under the policy the insurer may have had a right to conduct the proceeding, and there was concern that by conducting the proceeding itself, the appellant may have waived the right to make a claim on the insurance policy.
- [18]A third matter relied on was that a notice to admit facts was served in August and there had been no response given to the notice, so that the appellant was taken to have admitted all of the facts for the purposes of the action. The solicitor for the appellant conceded to the magistrate that a copy of the notice had been located in his office, but claimed that it had not been brought to his attention at the time. This was not necessarily fatal; obviously the notice did not cover all of the facts which the respondent had to prove, because there remained a significant amount of evidence given, and indeed the solicitor for the appellant did not seek to dispute most of the facts that the appellant was taken to have admitted: page 3. The solicitor for the appellant suggested was that there were a couple that should not be admitted because they were too broad, but ultimately there was no application for leave to withdraw the deemed admission in respect of any of the facts.
- [19]In these circumstances, the fact that the appellant had inadvertently admitted essentially uncontroversial facts was of no significance, and not a matter which provided any basis for adjourning the trial. There was then some discussion about what evidence would be called, and what was in issue, and the magistrate pointed out that the trial was going into a second day anyway, and the hearing would resume some months away. The ultimate submission of the solicitor for the appellant at page 6 was, “Of course we can proceed today, but there may be some rather serious consequences.” This was a reference to the submission about the insurance. The magistrate pointed out that if the insurer wanted to cross-examine, that could be done on the next day. Ultimately, the reason for the adjournment was just to try to preserve the insurance, and the magistrate refused to adjourn, although she stood the matter down to enable the parties to talk in relation to the notice to admit facts.
- [20]The position seems to be that although the adjournment was refused, she was leaving the way open for an application to be made to withdraw at least some of the deemed admissions, if that matter could not be resolved between the parties. In the event after some further discussion the solicitor for the appellant did not seek to withdraw any of the deemed admissions. In those circumstances, in my opinion the fact that the deemed admissions had arisen because the notice was overlooked was certainly not a reason justifying an adjournment of the trial.
- [21]The other matters are also not in my opinion compelling reasons for an adjournment. The first was simply that the appellant had failed to undertake as much preparation as it ought to have undertaken, but even then the appellant was not being asked to call witnesses that day, and it is not at all clear that the witnesses that were heard that day would not be at least potentially available to be recalled for further cross-examination if necessary on the resumed hearing if something had emerged as a result of further preparation between the two hearings. In circumstances where the inadequacy of preparation was apparently simply due to the fact that the defendant or its solicitor had just not prepared for the trial, it is I think understandable that the magistrate would be reluctant to adjourn. In circumstances where the trial was not going to finish that day, and would be concluded some months in the future at a further hearing when there would be the opportunity to accommodate any difficulties the defendant faced because of a want of proper preparation prior to the first hearing, it seems to me that this is by no means a compelling basis for an adjournment. Ultimately, as the solicitor said, the matter came down to the possible effect on the insurance.
- [22]The difficulty here was that there was no clear evidence even to show that there necessarily would be any adverse effect on the insurance policy. There was also the difficulty that the failure to make a timely claim on the insurance policy was due entirely to the default of the appellant. It was certainly not something to which the respondent had contributed in any way. There had been some mention of insurance in correspondence before the action, but investigation of possible insurance cover ought to have been a natural step for the appellant to take as soon as it was aware of the claim. If it failed to take that step and as a result lost the benefit of that policy, I do not see why that should not be simply the appellant’s problem. If there was some concern about the capacity of the appellant to meet a judgment, the respondent might have been disposed to avoid any risk of loss of the benefit of the insurance, but if the respondent did not wish to take that attitude, in my opinion it was no substantial ground, and certainly not a compelling ground, for an adjournment.
- [23]On the material before the magistrate, I would not criticise her decision to refuse the adjournment. There is certainly nothing which has been shown to justify any interference with the exercise of discretion which was involved.[10] This is a very different case from State of Queensland v JL Holdings Pty Ltd[11]. This was not a case where it was suggested that, because of case management considerations, the trial should be required to be fought in a way which did not properly expose the true facts. The position was simply that a party who had had reasonable opportunity to be prepared for a trial had not taken that opportunity, and in those circumstances in my opinion it was reasonable for the trial to proceed, particularly when the trial was not going to finish that day so that there was an opportunity anyway for any deficiencies in preparation to be remedied before the appellant had to close its case. It is not enough to say that any prejudice to the respondent could have been met by an order for costs, in circumstances where no good reason had been shown for granting an adjournment. This aspect of the appeal therefore fails.
Failure to appear
- [24]The next issue was as to what happened on the second day of the trial. At the end of the hearing on 8 October the trial was adjourned to 8 February 2005. That occurred in the presence of the solicitor for the appellant. On 8 February 2005 no-one appeared on behalf of the appellant. There was an attempt by court staff to contact the solicitor who had appeared on the previous occasion, but at the number shown on the notice of intention to defend the solicitor was not available and there was no-one there who knew anything about the matter: page 83. The magistrate ascertained that there had been no contact between the appellant’s solicitor and the solicitors for the respondent during the adjournment, and there was then some discussion as to how the matter was to proceed.
- [25]Initially the magistrate seems to have thought that the respondent had a choice between obtaining a default judgment or going on to prove his case. Rule 476(1) provides that if the defendant does not appear, the plaintiff may call evidence to establish an entitlement to judgment against the defendant in the way the court directs. In these circumstances, it is not a matter of simply giving default judgment for whatever amount the plaintiff claims; the plaintiff has to put evidence before the court to prove the plaintiff’s case so far as the plaintiff can, although there is a discretion as to the way in which that case may be proved[12]. The rules provide for an application to set aside judgment given the absence of the defendant: r 476(4). No such application was made in the present case, probably because the defendant was present for part of the trial[13], and because no judgment was given until March.
- [26]What happened was that the plaintiff’s counsel went on to call two further witnesses, one of who was the plaintiff. After that, the court adjourned for a time, and then there was an application by telephone from a solicitor in Sydney appearing on behalf of the appellant. What was originally said was that the other solicitor was to come up but did not board his aeroplane and had disappeared, but, “The matter was supposed to be defended today and it is my express desire to defend the proceedings.” (Page 96) The solicitor on the phone knew nothing about the matter and could not even explain the absence of any witnesses waiting to give evidence for the appellant; on the first day the solicitor then appearing had foreshadowed the calling of two witnesses. All that was sought was an adjournment to find out what had happened to the solicitor or alternatively instruct an alternative solicitor: page 97. After some further discussion, the magistrate said that she did not consider the mere fact that the solicitor who was handling the matter had apparently disappeared was a proper basis for an adjournment, but that she would give the appellant the rest of the afternoon to make an application on some proper basis, and that, “If you can come up with some proper basis, I will set a fresh date for hearing…”. (Page 100) That was the basis upon which the matter was left.
- [27]Subsequently, a letter was received[14] putting forward the assertion that what had happened was that the solicitor for the appellant had entered in his diary as the date for the adjourned hearing the day following, 9 February. It did not go on to suggest that anything in particular had been done by way of preparation for an adjourned hearing on that date. It suggested that the defendant had a defence on three grounds, only one of which was raised on the pleadings, and referred to an issue as to quantum. It said that a claim had been made on the insurance policy, which was being investigated. The solicitor for the appellant of course was present when the date of the resumed hearing was announced by the magistrate at the end of the first day’s hearing, so that this error was entirely his own fault. Since he was an employed solicitor, a factor which is sometimes taken into account, of not bringing home errors of a lawyer to the client[15], does not in my opinion arise.
- [28]In my opinion it remained open to the magistrate to regard this as not a sufficient ground and to refuse the adjournment. In arriving at this conclusion, I am influenced by the fact that it is difficult to see how anything useful could have been done anyway by way of defence of the action[16]. So far as liability is concerned, on the pleadings the plaintiff was bound to win, and even on the basis that it was necessary for the plaintiff to show an absence of reasonable care and skill, there was expert evidence to support this, and the proposition that dropping the car from the forklift was due to a want of care and skill on the part of the forklift operator is blindingly obvious. It is in my opinion virtually a case of res ipsa loquitur[17]. The question of whether the forklift driver was the agent of the appellant was expressly not disputed for the purposes of the appeal, and that really only leaves the question of quantum. As to that, if, as seemed to be ultimately accepted by the solicitor for the appellant during the first day of hearing, the vehicle was sold at auction shortly before at a particular price, that although not necessarily conclusive was fairly good evidence of value, and the various matters referred to, such as the possibility the vehicle might not have been in working order, or that there was some risk that the title was insecure, were presumably reflected in the price.
- [29]When an application is made to set aside a default judgment of some kind, including default in appearance at a trial when the matter is called on, it is necessary to show that there is some substantial defence on the merits[18]. It is not enough simply to assert that if more time had been available the outcome may, or even would, have been more favourable for the defendant. It may not be necessary for a defendant to go so far as to put on affidavits setting out all of the evidence which the defendant would seek to call, but the defendant needs to put forward evidence of some substantial reason for thinking that the outcome achieved in the absence of the defendant did not do justice to the defendant’s true position.[19] Nothing was put forward before the magistrate which fell into that category, and indeed nothing has been put forward before me to that effect. I do not think that the position of the defendant should be treated any more favourably because the application actually made was an application for an adjournment because, although the hearing had effectively finished, the magistrate had not yet given judgment.
- [30]The appellant criticised the reasons given by the magistrate for failing to adjourn the trial further on 8 February, but it is difficult to see how the magistrate could have come to any other decision. There was simply no proper application for an adjournment before her, or at least there was no basis made out for an adjournment. The position was simply that there was no-one there on behalf of the appellant, and the solicitor on the phone was unable to provide any explanation of that state of affairs. There was no information from any source to suggest that the failure of the appellant to attend the resumed hearing of the trial was due to anything other than the fault of the appellant, and there was no affidavit of merits. In those circumstances, there was no proper basis for an adjournment. Indeed, I suspect that if the magistrate had granted an adjournment on 8 February, when there was no proper basis shown for it, she would have erred in law. By leaving open the possibility of an application on a proper basis if the appellant could show one, she adequately protected the position of the appellant if it could show any good reason for the adjournment of the trial.
- [31]In circumstances where no proper basis for an adjournment was shown, an application for an adjournment ought to fail. In that situation, it is really irrelevant to consider the reasons given by the magistrate; even if her reasons were wrong, her decision was right. It was submitted that it was an irrelevant consideration to take into account the fact that there had been no contact from either the solicitors for the appellant or an insurance company since the first day of the trial. The significance of the absence of contact is that one would have expected some contact if the appellant had been actively engaged in defending the action. In view of the discussion about possible insurance on the first occasion, contact with the insurance company was also possible. Because of the way in which the matter proceeded on the first occasion, if any of the witnesses were required again for further cross-examination, that ought to have prompted further contact. In my opinion the fact that nothing was heard from the appellant or from anyone on behalf of the appellant in relation to the action between 8 October 2004 and 8 February 2005 was a relevant consideration, and supported the refusal of an adjournment.
- [32]As to the reference to the failure to request an adjournment at a time prior to the resumed hearing, that does not logically provide any support for a refusal of an adjournment in the circumstances, although I do not think it necessarily means the magistrate took into account an irrelevant consideration; as a statement of fact it was correct, and in the circumstances it cannot have been treated as a matter of any particular significance by the magistrate. Reasons of this nature should not in my opinion be scrutinised too assiduously for the purpose of seeking to discover error.[20]
- [33]In my opinion, for these reasons on the material before the magistrate, not only was it open as a matter of discretion for the magistrate to refuse the further application for an adjournment[21], but that was the appropriate conclusion. This aspect of the appeal also fails.
- [34]Ground four in the notice of appeal was abandoned in the written outline of argument, as was ground five. Accordingly, none of the grounds raised in the notice of appeal or argued on behalf of the appellant have been made out, and the appeal is dismissed with costs.
Footnotes
[1]Ramsay v Watson (1961) 108 CLR 642 at 649
[2]Abbey National Mortgages PLC v Key Surveyors Nationwide Ltd [1996] 1 WLR 1534
[3]Water Board v Moustakas (1988) 180 CLR 491 at 497; Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at 875 per McHugh J [44]; Whispran Pty Ltd v Dixon (2003) 77 ALJR 1598 at 1608.
[4]UCPR r 150(1)(r).
[5]Fleming “The Law of Torts” (9th Ed 1998) Ch 13.
[6]What was actually said by one of the three judges in that case, which was concerned only with a claim in tort, was that volenti is a form of waiver of duty: para 96.
[7]UCPR r 150(1)(s).
[8]UCPR r 166(5), because of the absence of a direct explanation for a non-admission. It was also one of the facts in the notice to admit facts.
[9]Halsbury’s Laws of England, 4th Ed, Vol 2, para 1586.
[10]Hopkins v Abela [1996] QCA 197; Sale v SPC Ltd (1993) 67 ALJR 841 at 843; Watson v Watson (1968) 12 FLR 164.
[11](1997) 189 CLR 146.
[12]The position was different under the former Magistrates Court Rules 1960 r 192.
[13]Seymour v Holm [1961] Qd R 214, where it was said there was an inherent power to set aside if the defendant was absent for part of the trial; see also UCPR r 667(2)(a).
[14]This letter is on the file and I have read it.
[15]For example, Claybrook v Claybook [1954] QWN 10; Perdis v Nominal Defendant [2004] 2 Qd R 64 at [11].
[16]So refusal did not result in a denial of justice to the appellant: Sali v SPC Ltd (1993) 67 ALJR 841 at 843.
[17]Contributory negligence was rejected by the magistrate, and it was obviously the responsibility of the forklift operator not to lift the vehicle until he was satisfied it was properly secured, if he required securing.
[18]Surfers Paradise International Convention Centre Pty Ltd v National Mutual Life Association of Australia Ltd [1984] 2 Qd R 440; Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239.
[19]I have looked at Hazpro Properties Ltd v Goddard Nominees Pty Ltd [2005] QDC 46 and do not regard it as authority to the contrary. It is not clear that there was not a proper affidavit as to the merits of the appellants in that case, and in any case the facts were exceptional, involving what was described as extraordinary conduct on the part of the appellants’ former solicitor.
[20]Rigarto Farms Pty Ltd v Ridolfi [2000] QCA 292 at [24].
[21]This is a discretion not readily upset on appeal: Hopkins v Abela [1996] QCA 197; Sale v SPC Ltd (1993) 67 ALJR 841 at 843.