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Goldsmith v Resolution Life Australasia Ltd[2024] QSC 17

Goldsmith v Resolution Life Australasia Ltd[2024] QSC 17

SUPREME COURT OF QUEENSLAND

CITATION:

Goldsmith & Tippett v Resolution Life Australasia Ltd (formerly AMP Life Ltd) [2024] QSC 17

PARTIES:

ANDREW DAVID GOLDSMITH

AND

JANNE ELIZABETH TIPPETT

(applicants)

v

RESOLUTION LIFE AUSTRALASIA LIMITED (FORMERLY AMP LIFE LTD)

(ACN 079 300 379)

(respondent)

FILE NO/S:

BS 3286 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 February 2024

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2023, 21 August 2023, 9 November 2023

JUDGE:

Wilson J

ORDER:

  1. The application is dismissed.
  2. The question of costs is adjourned.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – STAY OR DISMISSAL OF PROCEEDINGS – where the dispute between the parties involves leases entered into over a decade ago – where the Court of Appeal held a six-year limitation period applied in respect of some of the leases – where the applicants commenced proceedings in the Supreme Court in 2018, but did not take steps to serve the claim on the respondent until 2022 – where the applicants repeatedly sought to renew the claim on the basis the six-year limitation period was about to expire – where the claim was renewed three times – where the Supreme Court set aside the renewal of the claim and dismissed the proceeding – where the applicants brought a new claim in the Supreme Court based on materially the same facts – where the respondent filed an application seeking that the new claim be set aside or stayed – where the applicants now submit that a 12-year limitation period applies to the new claim – whether the new claim attempts to relitigate issues that were already decided – whether the applicants’ position in respect of the limitation period has changed – whether the new claim is an abuse of process – whether recommencing the proceedings was vexatious – whether the application ought to be granted

Land Titles Act 1994 (Qld)

Limitation of Actions Act 1974 (Qld)

Retail Shop Leases Act 1994 (Qld)

Rules of the Supreme Court 1900 (Qld)

Uniform Civil Procedure Rules 1999 (Qld), r 668(1)(a)

Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300; [1993] HCA 6

AMA v CDK [2009] QSC 287

Chan v Goldenwater LDL Pty Ltd (2021) 7 QR 566; [2021] QCA 87

Goldsmith & Anor v AMP Life Ltd (2021) 7 QR 113; [2021] QCA 20

Goldsmith & Anor v AMP Life Ltd [2020] QDC 140

Goldsmith & Anor v AMP Life Ltd [2023] QSC 15

IVI Pty Ltd v Baycrown Pty Ltd [2007] 1 Qd R 428; [2006] QCA 461

Metwally v University of Wollongong (1985) 60 ALR 68

Mbuzi v Favell [2007] QCA 393

Rockett v The Proprietors – “The Sands” Building Units Plan No. 82 [2002] 1 Qd R 307; [2001] QCA 99

Wentworth v Rogers [2002] NSWSC 921

Wentworth v Wentworth [1999] NSWSC 638

APPLICANTS:

A Goldsmith (on 18 August 2023 and 21 August 2023), self-represented

A Goldsmith (on 9 November 2023), solicitor

Blue Legal (on 9 November 2023)

RESPONDENT:

A Messina, counsel

Norton Rose Fulbright Australia

 The application

  1. [1]
    On 30 May 2022 (the original hearing), I made the following relevant orders in relation to a Supreme Court claim filed by Mr Goldsmith and Ms Tippett (the applicants):[1]
    1. the renewal of the claim made by Daubney J on 16 September 2021 be set aside; and
    2. the proceedings be dismissed.
  2. [2]
    Mr Goldsmith and Ms Tippett have now applied to set aside these orders pursuant to:
    1. rule 668 (1) (a) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) as since the making of the orders, facts have arisen that entitle the applicants to relief; and
    2. the Court’s inherent jurisdiction, as the orders were obtained as a result of material misrepresentations made by the respondent.
  3. [3]
    The applicants further seek that the orders by Daubney J made on 16 September 2021, where his Honour renewed their claim, be reinstated or replaced by identical orders.   
  4. [4]
    This application essentially concerns whether:
    1. reasons given by Crowley J in subsequent related proceedings constitutes a new fact in relation to the applicable time limitation period for their Supreme Court claim; and
    2. the applicants were taken by surprise by the respondents in the hearing before me and consequently were not heard on relevant matters.

Long litigation history 

  1. [5]
    This matter has a long litigation history whereby the applicants have initiated proceedings in the Queensland Civil Administrative Tribunal, the District Court, and twice in the Supreme Court concerning this same factual background:
    1. from 11 October 2004, Gold Tip (News) Pty Ltd (Goldtip) operated a newsagency business in premises leased from AMP Life ACN 079 300 379 (the respondent) at the Mt Ommaney shopping centre. The applicants were the owners and managers of Goldtip, and they operated the newsagency business;
    2. commencing in June 2008, the respondent undertook major renovation works to the centre, including an extension of it. The works took some of two years to complete;
    3. while the works were being carried out, Goldtip relocated its business from the original premises to new premises in the newly constructed mall that was part of the centre;
    4. the applicants took an assignment of Goldtip’s right to bring proceedings against the respondent;
    5. prior to June 2008, Goldtip and the respondent commenced negotiations for a new lease concerning a new shop to accommodate the business within the expanded centre. The second lease commenced on 4 February 2010 when the business commenced operating from the new shop;
    6. the business failed, and Goldtip was wound up in insolvency on 30 March 2012.
  2. [6]
    The applicants’[2] subsequent litigation is a jig saw of proceedings, a snapshot of which can be gleaned from the following tables:

District Court Claim 419/16 (the District Court proceedings)

25/6/20 – District Court – Porter KC DCJ

 

Applicants’ claims are dismissed, and the respondent’s counterclaim is dismissed.

11/11/20 – Court of Appeal 

Application for leave refused. Applicants to pay costs.

5/8/21 – High Court of Australia

 

Application for special leave dismissed.

Applicants to pay costs.

24/5/22 – District Court – Barlow KC DCJ

 

Applicants seek an order setting aside the judgment of Porter KC DCJ.

Applicants state that new evidence was discovered which reveals that the judgment was tainted by actual fraud.

Respondent files an interlocutory application seeking that the originating process be set aside or alternatively permanently stayed and the statement of claim be struck out.

Applicants’ statement of claim struck out and the applicants’ claim permanently stayed. Applicants to pay costs on an indemnity basis.

Supreme Court Claim 3286/18 (the first Supreme Court claim)

23/3/18

Claim filed.

20/3/19

Claim renewed in the registry.

19/3/20

Claim renewed in the registry.

26/3/21

Unsuccessful application to renew the claim in the registry.

25/5/21

Unsuccessful application to renew the claim in the registry.

16/9/21 – Daubney J 

(the renewal hearing)

Claim renewed by Daubney J.

 

25/2/21

Claim served on the respondents.

30/5/22 –Wilson J 

(the original hearing)

The renewal of the claim on 16/9/21 set aside.

The proceeding dismissed.

15/5/23 – application to set aside the orders of Wilson J

The applicants file an application seeking that the orders made by Wilson J on 30/5/22 be set aside.

Supreme Court Claim 7538/22 (the second Supreme Court claim)

28/6/22

Claim filed.

17/2/23 - Crowley J 

 

Applicants’ claim permanently stayed.

Applicants’ pay the respondent’s costs on indemnity basis.

  1. [7]
    These previous proceedings assume some relevance in this present application. Accordingly, it is necessary to set out, in some detail, what occurred in these previous proceedings.

The District Court proceedings

  1. [8]
    The applicants sued the respondent landlord for compensation under s 43 Retail Shop Leases Act 1994 (Qld) (RSLA) in respect of renovation works carried out by it. The respondent denied any entitlement to compensation under either lease. It also contended that any claim under the first lease was statute barred and sought to raise a setoff and counterclaim for unpaid rent due by the company under the second lease.
  2. [9]
    The applicants asserted that the six-year limitation period did not apply to any cause of action being pursued by them because each cause of action was not one based on simple contract but on a speciality. Therefore, they contended, the relevant limitation period was 12 years from the date the cause of action arose. 
  3. [10]
    The trial judge dismissed both the claim and the counterclaim. At the heart of the trial judge’s findings was the conclusion that reasonable compensation payable under the first lease was the subject of an equitable setoff for the unpaid rent due under the second lease.
  4. [11]
    However, in relation to the limitation point, Porter DCJ KC found that the action on s 43(1) of the RSLA is an action on a specialty and subject to a 12-year limitation period:[3]

“[227] The first step in the argument seems correct: the terms of the tenancy at will are set out in the first lease. And it seems to me that the effect of s. 42 is that those terms are “taken to include s. 43”. Section 42 operates in an analogous manner to incorporation by reference. The provision does not appear in terms of the tenancy at will set out in the registered first lease, but is deemed to be included. No authority was cited to me dealing with whether, and to what extent, promises or terms conferring rights may be incorporated by reference into a deed so as to give them the status of covenants enforceable under the deed. However, the same principles of construction apply to deeds as to contracts, and incorporation by reference is well known in the field of contract law.

[228]  I suspect that there is more to this argument than meets the eye, but on the submissions put before me, it seems correct that the terms of the tenancy at will are (literally) contained in the registered lease, that those terms take effect as a deed between the parties, given the deeming effect of s. 176, and further, that terms incorporated into that lease also thereby take effect as covenants.

[229]  I did not think that Ms Schneider’s arguments led to a different conclusion. She focused on establishing that on the proper construction of the first lease, the tenancy at will was a separate tenancy from the indefeasible tenancy created by the registration of the first lease. That proposition seemed correct. However, that argument does not answer Mr Ferret’s argument. His argument is unconcerned with whether the tenancy at will arose as a new lease or a continuation of the first lease. It relies on the fact that the terms of the tenancy at will are contained in a registered instrument.

[230]  With some trepidation, I conclude that the plaintiffs’[4] argument is right and that the terms of s. 43(1) took effect as covenants. The action on s. 43(1) is therefore an action on a specialty and subject to a 12 year limitation period. AMP’s limitations defence therefore fails.”

(Citation omitted).

  1. [12]
    The applicants applied to the Court of Appeal for leave to appeal which was ultimately refused.[5] 
  2. [13]
    Relevantly, the respondent filed a notice of contention in relation to the limitation point and Morrison JA (with whom Sofronoff P and Henry J agreed) found that the learned trial judge’s conclusion that the action was an action on a specialty was in error and having been commenced more than six years after the cause of action was complete, the claim for disruption under the first lease was statute barred.
  3. [14]
    The issue raised on appeal by the notice of contention only concerned the first lease and the Court of Appeal did not consider whether the second lease was statute barred.
  4. [15]
    On 16 March 2021, the applicants filed an application in the High Court of Australia, seeking special leave to appeal from the judgment of the Court of Appeal which the High Court dismissed on 5 August 2021.
  5. [16]
    On 18 March 2022, the applicants commenced a further proceeding in the District Court, seeking to set aside the first decision of Porter DCJ KC and obtain an order for a retrial on the basis that the trial was affected by actual fraud. 
  6. [17]
    On 24 May 2022, Barlow DCJ KC ordered that the applicants’ statement of claim be struck out and the claim permanently stayed.

The first Supreme Court claim

  1. [18]
    The first Supreme Court proceeding was filed in the Supreme Court on 23 March 2018 by a claim for reasonable compensation and/or damages for:
    1. losses due to unconscionable conduct and misrepresentation in breach of implied terms of the first and second leases;
    2. breach of contract;
    3. breach of statutory duty; and
    4. unlawful termination of the second lease.
  2. [19]
    This claim was underpinned by the same general factual basis as that alleged in the District Court proceeding.
  3. [20]
    However, this claim was premised upon the misrepresentations said to have been made by the respondent during the negotiations for entry into the second lease.
  4. [21]
    This claim was not served upon the respondent until nearly four years later.

The renewal hearing – an application to renew the first Supreme Court claim

  1. [22]
    The applicants successfully renewed the claim, via the registry, on 20 March 2019 and 19 March 2020. 
  2. [23]
    However, they were unsuccessful in renewing the claim, via the registry, on 26 March 2021 and 25 May 2021. Consequently, they filed an application on 30 August 2021 seeking an order under rules 24 and 367 of the UCPR that the claim be renewed.
  3. [24]
    On 16 September 2021, an ex parte application for renewal pursuant to r 24 of the UCPR was heard by Daubney J. Mr Goldsmith appeared as a self-represented litigant on behalf of the applicants and filed written submissions. Issues arose in subsequent proceedings as to how Mr Goldsmith’s written and oral submissions addressed three matters in particular:
    1. the limitation point;
    2. the re-instatement of Goldtip; and
    3. the dispute being based entirely on documentary evidence and not on the recollections of individuals.
  4. [25]
    The written submissions before Daubney J addressed the limitation point in this way:

“Good reasons: the limitation point and the no standing or jurisdiction arguments

  1. When the plaintiffs[6] filed the Claim, it was shortly before their cause of action would become subject to the six-year limitation period imposed by s 10(1) of the Limitation of Actions Act 1974 (Qld) (Limitations Act).
  1. In The IMB Group Pt Ltd (in liq) v Australian Competition and Consumer Commission, Keane JA (as his Honour then was) stated:

In Major v Australian Sports Commission, it was accepted that a legitimate reason to defer service may arise where the imminent expiry of a limitation period necessitates the commencement of proceedings, but further investigation of the circumstances of the claim is necessary to be able properly to plead so that the action would not be vulnerable to a strike out application.

  1. In its pleaded defence to the District Court proceedings, the defendant argued:

 (a)  the plaintiffs lacked standing to bring the claim;    and

 (b) the District Court did not have jurisdiction to hear it.

  1. If correct, those defences would also have applied to the Claim and would render it untenable and liable to be struck out.
  1. In this way, the plaintiffs found themselves potentially exposed to precisely the vulnerability referred to in Major v Australian Sports Commission.”

(Citations omitted).

  1. [26]
    The applicants stated that they needed to seek legal advice following the Court of Appeal’s reasons and submitted:

“53. The Reasons of the Court of Appeal contained a decision on the Notice of Contention filed by the Defendant. This was related to the Limitations Act and may have affected the Claim. Although the plaintiffs are self-represented, it was necessary for them to see legal advice on this.

  1. In fact, the Reasons have affected the Claim, which will require the filing of an amended statement of claim. This has not yet been done, pending the outcome of this application.”
  1. [27]
    The applicants’ written submissions referred to King and Ors v Gunthorpe & Ors[7] and Murdoch Lawyers Pty Ltd v Gouldson,[8] which they said were analogous to the applicants’ circumstances of waiting for legal advice and submitted:

“58. The plaintiffs respectfully submit the failure to serve the Claim within the time allowed, because of the uncertainty regarding the veracity of the ‘standing’ and ‘jurisdiction’ defences and the effect on the Limitations Act on the Claim, is comparable to both King and Murdoch Lawyers; it was not a calculated or deliberate choice of the plaintiffs but one imposed on them by circumstance.”

  1. [28]
    The applicants’ written submissions stated that two issues (the limitation period and the assignment of Goldtip’s rights) raised in the Court of Appeal reasons required a further delay in serving the claim. 
  2. [29]
    In relation to the limitation period, the applicants’ written submissions stated:

“58. First, the plaintiffs argued at trial that the limitation period for their cause of action, being based on a registered lease – and therefore a deed – was 12 years. This was successful at first instance but overturned by the Court of Appeal which ruled that s 43 of the Retail Shop Leases Act (RSLA) does not import the deeming provisions of s 176 of the Land Titles Act. Relevantly, this decision – because it was made without the benefit of argument – does not bind a future court. Consequently, the plaintiffs can raise this argument again in the Claim.”

(Citations omitted).

  1. [30]
    At the hearing before Daubney J, the limitation period was raised in this way:

“PLAINTIFF: The relevant point of the – of the claim, your Honour, is a breach of – an alleged breach of section 43(2) of the Retail Shop Leases Act, which deals with misleading and deceptive conduct.

HIS HONOUR: But isn’t there a three – three-year limitation period for that?

PLAINTIFF: No, your Honour. Under the Retail Shop Leases Act there would be, normally, six years, which was why the – which was why the claim was filed when it was, which was just short of the - of the six-year limit. But one of the matters that we led in the - - -

HIS HONOUR: But the misleading and deceptive conduct claim isn't  – on the pleading in front of me, doesn't go anywhere; doesn't allege any – the highest it goes is paragraph 30 of the statement of claim, which doesn't tell me anything.

The refusal of the first defendant to pay reasonable compensation for losses combined with an uncommercial lease, caused Gold Tip severe financial difficulties.

Well, the first premise of that paragraph is now disposed of because the District Court has apparently found that the first defendant was entitled to refuse to pay reasonable compensation.

…

HIS HONOUR: That – what happened in the Court of Appeal?

PLAINTIFF: So we were – we were given an award under the first lease but not under the second lease. And then there was a counterclaim from the defendant, which was awarded as a set-off in equity. And so both of the matters were dismissed. And then we went to the Court of Appeal. And the Court of Appeal, as I've – as I've put in my submission, refused – refused leave.

The point that's come up in – during all of these matters is, as I've said, it's – it's – what we are alleging is misleading and deceptive conduct into the entry of a – of a shop lease, which is covered by section 43(2) of the Retail Shop Leases Act, which also, then, allows reasonable compensation.

What we argued in front of Judge Porter in the District Court was that the – the period of limitation being a registered lease, it's a deed and therefore a speciality and under sect – and, therefore, section 10(3) of the Limitation of Actions Act applies, which gives you 12 years.

HIS HONOUR: Yes. That's nonsense. That's just – that's just patently wrong.

PLAINTIFF: Justice Porter proved that decision, your Honour.

HIS HONOUR: Yes. The Court of Appeal didn't.

PLAINTIFF: The Court of Appeal did not dispute the – the rationale for that decision. What it – what it said was that the deeming provisions of section 176 of the Land Titles Act doesn't apply - - -

HIS HONOUR: That's right.

PLAINTIFF: - - - to the Retail Shop Leases Act.

HIS HONOUR: That's exactly right. Anyhow, I'll – it all looks pretty –  as I say, this statement of claim - - -

PLAINTIFF: It needs a good deal of work, your Honour.

HIS HONOUR: That's an understatement. And the claim itself – I mean, frankly, I'm tempted to refuse leave on the basis that the claim is nonsense. The only reason I wouldn't do that is - - -

PLAINTIFF: If I could - - -

HIS HONOUR: - - - because to do – to do so would deprive you of the limitation.

PLAINTIFF: Thank you. If I – I will – that – the pleading was done a number of years ago and was done without - without the assistance of counsel.”

  1. [31]
    In relation to the reinstatement of Goldtip, the applicants’ written submissions before Daubney J set out the following matters:

“59. The second issue relates to the assignment of Goldtip’s rights. The Claim is made under s 43(2)(a) of the RSLA which deals with entry into a lease on the basis of false or misleading statements or misrepresentations made by the lessor to the lessee. This, in both form and content, draws upon Section V of the Trade Practices Act 1974 (Cth) (TPA) – which was the applicable statute, now replaced by and incorporated into various sections of Schedule 2 of the Competition and Consumer Act 2010 (Cth) – The Australian Consumer Law (ACL).

  1. Arguably, in addition to the claim under the RSLA, the plaintiffs may have a cause of action through the TPA which was the applicable statute at the time. This is relevant because authority suggests such an action is ‘personal’ to Goldtip and cannot be assigned. The same argument could be applied, by analogy, to RSLA s 43(2)(a).
  1. To overcome that issue, Goldtip will need to be reinstated and added as a party to the proceedings. An application to that effect has been prepared.”

(Citation omitted).

  1. [32]
    The applicants’ written submissions stated that the respondent’s interests have not been prejudiced for the following reasons:

“65. The Registrar’s reasons for refusal include that he finds ‘no evidence has been provided that the delay will not be prejudicial to the defendant’.

  1. It is accepted that prejudice can arise because the effluxion of time may create problems with the memory of witnesses. However, this dispute is based entirely on documentary evidence and does not rely on the recollections of individuals.”

(Citation omitted).

  1. [33]
    Daubney J renewed the claim and, in his Honour’s reasons, set out a number of matters his Honour considered in exercising the Court's discretion to grant the order, including:
    1. the claim was to preserve the limitation period;
    2. advice was necessary about the Court of Appeal decision;
    3. it could not be said that the applicants were inactive, as:
      1. they conducted the District Court proceeding;
      2. it was necessary to resolve issues of standing and jurisdiction in the District Court proceeding;
      3. this is because the respondent’s arguments on these issues would have been a death knell for the applicants’ position in this Supreme Court proceeding;
      4. to preserve one of the claims pressed, it was necessary to reinstate the registration of Goldtip because it might not have been possible to lawfully assign the cause of action for loss arising because of misleading or deceptive conduct; and
      5. the decision not to serve the proceeding was not a deliberate decision on the part of the applicants.
  2. [34]
    In the course of his Honour’s ex tempore reasons, his Honour stated:

“In the circumstances that have been described to me by the Plaintiff, Mr Goldsmith, who appears for himself, I am persuaded, but only just persuaded, that it is in the interest of justice to permit a further renewal of the claim.

The claim was filed to preserve the Plaintiffs’ interests from the intervention of relevant limitation periods….

…

None of these matters give me any great confidence in the merits of the claim which the Plaintiffs say they wish to pursue in this court, but that point alone is not sufficient to persuade me that I should completely close the Plaintiffs out from even the prospect of pursuing remnant claims…”

The original hearing – an application to set aside the orders of Daubney J

  1. [35]
    On or about 25 February 2022, the applicants served the claim and a further amended statement of claim on the respondent. 
  2. [36]
    The respondent then made the following application,[9] which relevantly stated:

“1 Pursuant to Uniform Civil Procedure Rules 1999 (Qld) (UCPR) r 16(d) and/or r 667(2)(a), that paragraph 1 of the order of Daubney J dated 16 September 2021 renewing the originating process filed on 23 March 2018 (Claim) be set aside.

2 Further, pursuant to the Court’s inherent jurisdiction, the proceeding be dismissed.

3 Alternatively to paragraph 2, pursuant to UCPR:

  1. r 16(e), that the Claim be set aside.
  1. r 16(g), that the Proceeding be permanently stayed.

3A   Leave pursuant to r 135 UCPR to take a step in the form of this application.”

  1. [37]
    Each party was represented by counsel, who provided written submissions, and the application was heard before me on 26 May 2022. The respondent sought to set aside Daubney J’s order on the basis that:
    1. the applicants’ non-disclosure of material circumstances relevant to the exercise of Daubney J’s discretion to allow a further renewal of the claim; and
    2. the applicants had not shown “another good reason to renew the claim”.
  2. [38]
    I found that the applicants misled Daubney J in two respects, about:
    1. the registration of Goldtip; and
    2. the claim being based on documents rather than on witness testimony.
  3. [39]
    In relation to the registration of Goldtip, Mr Goldsmith, on behalf of the applicants, informed Daubney J that a reason that they had not served the claim was that Goldtip's registration needed to be reinstated and without this the applicants were concerned that the claim would be struck out.
  4. [40]
    However, Daubney J was not told that the applicants:
    1. relied on Goldtip's deregistration in defending the counterclaim in the District Court proceeding;
    2. maintained this position in the Court of Appeal; and
    3. maintained this position in the application for special leave to appeal to the High Court (by contending that, on deregistration, Goldtip’s debts and obligations were extinguished). 
  5. [41]
    In relation to this issue, I found that:
    1. the additional information about the applicants’ reliance on Goldtip’s registration was a material matter of relevance to the application to renew the claim;
    2. it was certainly open that the applicants sought to take advantage of the fact of Goldtip’s deregistration knowing that the registration would need to be reinstated for the purpose of the Supreme Court claim (which the applicants elected not to serve);
    3. by electing not to serve the claim, the applicants were “seeking to have their cake and eat it too”;
    4. this was a material non-disclosure to Daubney J because it threw a different light on whether the applicants made a forensic decision not to serve the claim because they considered it to be to their advantage in the District Court claim.
  6. [42]
    Further, the applicants’ position before Daubney J was that no prejudice would be suffered by the respondent if the claim was renewed as their case was based on documents rather than on witness testimony. I found that this contention was materially inaccurate and misleading. Paragraph 18 of the applicants’ amended statement of claim alleged a number of statements made by a Mr Nagel on behalf of the respondents and these alleged representations were relied on by the applicants for claiming loss and damage.
  7. [43]
    Accordingly, I found that the applicants had misled Daubney J in relation to the possible prejudice to the respondent from the delay:

“In my view, this unqualified statement by the plaintiffs[10] in their submissions before Daubney J was just more than gilding the lily; it was wrong.  Such an omission was relevant to the matters to be considered in the exercise of discretion.  In my view, it was a matter of substance in the decision-making substance.  The plaintiff clearly knew that prejudice was a relevance factor that needed to address. 

I accept that, given the time that has passed since the conversation, just by the effluxion of time, prejudice to the plaintiffs has been created, especially as part of the plaintiff’s amended statement of claim relies on a representation contained in a conversation.  In my view, the plaintiffs misled Daubney J about the possible prejudice to the defendants from the delay, a relevant matter to be exercised in his Honour’s discretion to renew the claim.”

  1. [44]
    I found that as a result of material non-disclosures by the applicants before Daubney J, the application to renew the claim should be considered afresh:

“As a result of the material non-disclosures by the plaintiff, this Court should consider this matter afresh.  the material non-disclosures in this case are the failure to inform Daubney J that the deregistration of Gold Tip was relied on in the District Court proceedings and the statement that the dispute is based entirely on documentary evidence and does not rely on the recollection of individuals.  In my view, either one of these matters would amount to a material non-disclosure by the plaintiff.  However, I particularly highlight the submission that the dispute is based entirely on documentary evidence. As I have said, this is not just gilding the lily; it was wrong, and it was wrong in a material way.  This dispute is not based entirely on documentary evidence and the plaintiff relies on a conversation. He did so at the time of hearing before Daubney J and also in the amended statement of claim. 

This, in my view, should have been placed before Daubney J, even if the plaintiff says it only goes to part of the statement of claim.  Alternatively, in my view, the Court could also reconsider this matter as there has been additional material, being the maintenance of the defence of the counterclaim based on the deregistration of Gold Tip which threw a new and different light on the situation of the parties.”

  1. [45]
    Consistent with the authorities on the issue, the application was a hearing de novo and all the material before the Court was considered as to whether the claim should be renewed. In the circumstances, I made the following findings:
    1. it was not a good reason to wait for the outcome of the District Court claim before serving the claim;
    2. the issues about jurisdiction and standing did not provide a cogent explanation for the delay;
    3. the applicants’ position was that the claim was filed shortly before the relevant limitation periods expired and there was some dispute about limitation periods, but the applicants accepted that the limitation periods expired after they filed their claim; 
    4. filing a claim shortly before the expiration of a limitation period, but not serving it while the claim is further investigated, is further evidence of a strategy to keep the claim alive while not having to prosecute it;
    5. general prejudice will be caused to the respondent because of the effluxion of time;
    6. the applicants’ financial position was not a good reason to renew the claim; and
    7. none of the matters raised by the applicants justified the renewal of the claim.
  2. [46]
    On 30 May 2022, I allowed the respondent’s application and ordered that the renewal of the claim on 16 September 2021 be set aside and that the proceeding be dismissed.   

The second Supreme Court proceeding

  1. [47]
    The applicants did not appeal my orders of 30 May 2022.
  2. [48]
    Instead, on 28 June 2022, the applicants filed another claim and statement of claim in the Supreme Court which was, in all material respects, indistinguishable from the previous claim that I dismissed on 30 May 2022. 
  3. [49]
    The respondent applied on 4 August 2022 to have the applicants’ claim set aside or stayed on the basis that the proceeding was an abuse of process as the applicants’ claim:
    1. disclosed no reasonable cause of action, as the relevant limitation period for the commencement of proceedings had expired and the claim was statute barred; and
    2. proceeded on a basis that was contrary to the previous decision of the Court of Appeal which authoritatively dealt with the limitation point.
  4. [50]
    In relation to the limitation of time issue, Crowley J summarised the respondent’s position in his Honour’s reasons:[11]

“[64]  Whilst the Defendant[12] accepts that the Court of Appeal’s judgment regarding the Limitation Point concerned the First Lease, the Amended Leases and Goldtip’s unregistered holding over, the Defendant nevertheless submits that the reasons of Morrison JA contain an analysis and interpretation of the applicable provisions of the RSLA and the LTA that apply equally to the Second Lease, upon which the present claim is founded. The Defendant therefore submits that the issue as to whether the limitation period in the present proceeding is twelve or six years turns on a point of statutory interpretation that has been decided by the Court of Appeal.

[65]  On that basis, the Defendant argues that the relevant limitation period is six years, and it has now expired. Consequently, the Defendant contends the Plaintiffs’ claim discloses no reasonable cause of action and therefore the statement of claim should be struck out and the proceedings should be permanently stayed or dismissed.”

  1. [51]
    Crowley J concluded that the Court of Appeal did not decide that the limitation period for the second claim (i.e. the claim before his Honour) was six years because the decision concerned the unregistered holding over lease.
  2. [52]
    Accordingly, Crowley J did not accept the respondent’s proposition that the applicants’ claim disclosed no reasonable cause of action:[13]

“[72]  … At present, it seems to me that the relevant limitation period has not expired and the proceedings that have been commenced by the filing of the new claim are within time. For this reason, it cannot be said that that case is so clearly untenable that it cannot succeed.”

(Citation omitted).

  1. [53]
    Crowley J then went on to consider whether the proceeding was an abuse of process and set out the position of the parties:[14]

“[74]  Irrespective of the Court of Appeal’s determination of the Limitation Point, the Defendant submits that the recommencement of the present proceedings nevertheless constitutes an abuse of process as it brings the administration of justice into disrepute. The Defendant says this is so because:

  1. it treats the orders of Wilson J as merely provisional and not binding;
  1. it attempts to re-litigate an issue which was accepted as decided or concluded, being the limitation issue before Wilson J;
  1. it gives the impression that a party may change arguments, including arguments of law, after the fact, based on what is expedient rather than what is correct;
  1. it gives rise to the potential of a conflict between decisions of this Court; and
  1. the recommencement of proceedings is unfair to the Defendant and vexatious in all the circumstances.

[75]  The Plaintiffs submit that the recommencement of proceedings by the filing of the present claim does not constitute an abuse of process in any of the ways the Defendant contends. The Plaintiffs say:

  1. Wilson J did not make any decision as to the merits of their claim and did not finally determine the rights of the Parties;
  1. they are not taking an inconsistent position on the law with respect to the limitation issue and, in any event, they cannot be bound by a previous incorrect position with respect to a matter of law;
  1. the present proceedings has been commenced within the applicable limitation period; and
  1. the recommencement of proceedings is not unfair or vexatious, and any prejudice to the Defendant is outweighed by the desirability of permitting the Plaintiffs to have their claim determined on its merits in due course.”
  1. [54]
    Crowley J found that the applicants were attempting to proceed on a basis that was clearly contrary to the position they previously adopted with respect to the limitation period. His Honour’s reasons set out in detail the conflicting positions taken by the applicants at various times:[15] 

“[103] Because I have concluded the Court of Appeal did not decide the Limitation Point in the way the Defendant submits, I do not consider the Plaintiffs are attempting to relitigate a decided issue concerning the applicable limitation period for the causes of action disclosed by the present claim.

[104]  Further, I do not consider the position taken by the Plaintiffs with respect to the limitation period necessarily has the potential to cause conflict between decisions of this Court; neither Daubney J nor Wilson J were required to decide that issue.

[105]  However, I do consider the Plaintiffs are attempting to proceed on a basis that is clearly contrary to the position they previously adopted with respect to the limitation period.

[106]  At the hearing of the application by Wilson J, her Honour was informed by counsel for the Defendant that the Plaintiffs’ claim had been filed to preserve a limitation period. The Plaintiffs did not challenge this submission; indeed, they positively embraced it. Counsel for the Plaintiffs made the following submission to her Honour:

Just one thing with respect to prejudice, your Honour. If the claim is not renewed, or the orders of Justice Daubney are set aside, then the respondent would be summarily shut out from pursuing what I say is a – in my submission, is a maintainable course of action…In my submission, to summarily shut them out would cause them an irreparable prejudice…

[107]  Similarly, the Plaintiffs’ written submissions contained the following submission:

  1. The current proceedings is [sic] not an abuse of process as:
  1. it has not been commenced for an improper purpose (i.e. for an ulterior or collateral purpose) because:
  1. the current proceeding was filed on 23 March 2018 for the perfectly legitimate reason of preserving the claim in the face of a looming limitation date…

…

  1. the prejudice of the Respondents from any summary determination of the current proceeding outweighs any prejudice to the applicants because if the proceeding is summarily determined:
  1. the Respondents will be shut out from pressing their good and proper case…

…

[108]  I further note that in the affidavit on which the Plaintiffs relied, Mr Goldsmith deposed to the fact that the first Supreme Court claim was filed in early 2018 because he was aware of the approaching limitations ‘deadline’.

[109]  Given the submissions that were made, it is unsurprising that her Honour proceeded on the following basis:

Having already commenced the proceeding, the plaintiff’s position was preserved. This could actually have been a circumstance warranting the prompt service of the claim in order to see whether the defendant called up a defence based on limitation of action. The plaintiff’s position is the claim was filed shortly before the relevant limitation periods expired and there is just some dispute about limitation periods, but the plaintiffs accept the limitation periods have expired after they have filed.

As Jackson J said in McIntosh, the expiry of a limitation point is an important circumstance, because a party who ‘starts a claim in the last days before the expiration of a limitation period, but does not serve it so as to avoid having to proceed in an expeditious way, and then seeks to renew the claim after one year without making reasonable efforts to serve seeks, in effect, to extend the maximum limited time to proceed as of right’.

Like in Wallace v Bendigo and Adelaide Bank Limited & Anor [2020] QCA 122, the commencement of the claim shortly before the expiry of a period of limitation is further evidence of a strategy to keep these claims alive whilst not having to prosecute them.

[110]  It is plain that the application before Wilson J was argued and determined on the basis that both Parties and her Honour accepted that the applicable limitation period had expired after the claim in the first Supreme Court proceeding was filed.

[111]  Despite this, the Plaintiffs now contend that the applicable limitation period is actually 12 years, that the claim initiating the present proceeding has been filed within time, and that the pleaded causes of action are not statute barred. I consider this to be clearly inconsistent with the position the Plaintiffs took before Wilson J.

[112]  It is most curious that the point now taken with respect to the asserted 12-year limitation period was not raised by the Plaintiffs before her Honour. That is particularly so where Mr Goldsmith has now deposed in an affidavit read by the Plaintiffs at the hearing of this application that they, in fact, became aware some time before 12 November 2019 that the 12-year limitation period applied.

[113]  To put in plainly, the timing of this apparent realisation is such that the Plaintiffs must necessarily have believed a 12-year limitation period applied:

  1. the second time they sought order from the Registrar to renew the claim;
  1. the third time they sought an order from the Registrar to renew the claim;
  1. when Daubney J heard the ex parte application for an order for renewal of the claim; and
  1. when Wilson J heard the Defendant’s application to set aside the renewal order and dismiss the proceeding.

[114]  I do not accept the Plaintiffs’ submission that their position with respect to the limitation period point has remained consistent. Regardless of whether the submissions made by Mr Goldsmith to Daubney J might be construed as consistent with maintaining a belief in a 12-year limitation period, the simple fact is that no such interpretation can be given to the submissions made to Wilson J. The clear and unambiguous effect of the Plaintiffs’ submissions to her Honour was that the relevant limitation period had expired. The Plaintiffs urged her Honour to determine the application on a basis they accepted, yet they now seek to resile from.

[115]  In my opinion, the position the Plaintiffs now take with respect to the applicable limitation period, even if correct as a matter of law, does give the distinct impression that a party may advance arguments, including arguments of law, based on what is expedient rather than what is correct.

116]  In the hearing before Wilson J, the Plaintiffs were content to proceed on the basis that the relevant limitation period was six years and had expired shortly after they had served the previous claim. I conclude that is suited the Plaintiffs at that time to maintain that position so that they could argue to her Honour that they would suffer the ‘irreparable prejudice’ of being ‘shut out’ of their claim if it was dismissed. In other words, it was to their advantage. To my mind, there can be no other rational explanation.

[117]  Now, the Plaintiffs argue that they have commenced the present proceeding in time, and they therefore have a right to have their claim determined on its merits. They seek to proceed this way in circumstances where they have not given a satisfactory explanation as to why her Honour was not informed that this was their position at the time the dismissal application was heard.”

(Citations omitted)

  1. [55]
    Ultimately, Crowley J concluded that having regard to the applicants’ conduct in the proceedings before Daubney J and before me, and their taking of deliberately contrary positions on the applicable limitation period, that to permit the continuation of the present proceeding would bring the administration of justice into disrepute. Therefore, his Honour was of the view that the second Supreme Court claim filed by the applicants was an abuse of process, and it was appropriate to grant a permanent stay. 
  2. [56]
    The applicants appealed Crowley J’s decision. This appeal is pending, but the parties agree that it shall await the outcome of this current application before me.

Rule 668 (1) (a) of the UCPR

  1. [57]
    The applicants apply for the orders that I made on 30 May 2022 to be set aside because pursuant to r 668 (1) (a) of the UCPR, since the making of these orders, facts have arisen that entitle them to relief. 
  2. [58]
    Rule 668 of the UCPR states:

“668 Matters arising after order

  1. This rule applies if—
  1. facts arise after an order is made entitling the person against whom the order is made to be relieved from it; or
  1. facts are discovered after an order is made that, if discovered in time, would have entitled the person against whom the order is made to an order or decision in the person’s favour or to a different order.
  1. On application by the person mentioned in subrule (1), the court may stay enforcement of the order against the person or give other appropriate relief.
  1. Without limiting subrule (2), the court may do one or more of the following—
  1. direct the proceedings to be taken, and the questions or issue of fact to be tried or decided, and the inquiries to be made, as the court considers just;
  1. set aside or vary the order;
  1. make an order directing entry of satisfaction of the judgment to be made.”
  1. [59]
    Rule 668 (1) (a) of the UCPR requires:
    1. a new fact arising after the making of an order; and
    2. that this new fact entitles the person against whom the order is made to be relieved from it.
  2. [60]
    The origins of rule 668 is in all material respects a re-enactment of O 45 r 1 of the Rules of the Supreme Court 1900. In IVI Pty Ltd v Baycrown Pty Ltd, Jerrard JA set out the history of O 45 r 1, which is instructive when considering rule 668 (1) (a):[16]

“[13]  An obvious circumstance in which the discretion given by the rule would be exercised is when new facts arise or are discovered after an interlocutory order is made, that would not have been made had those facts then been known or existed. In Rockett & Anor v The Proprietors “The Sands” BUP No. 82 [2002] 1 Qd.R. 307 McPherson J.A. wrote:

 “....Rule 668 is in all material respects a re-enactment of O. 45 r. 1 of the Rules of the Supreme Court 1900. Since the decision in K.G.K. Constructions Pty Ltd v. East Coast Earthmoving Pty Ltd [1985] 2 Qd.R. 13, it has been applied in a number of cases in which relief has been sought and granted against the operation of ‘self-executing’ orders, because of facts arising after an order was made. Little advantage is to be gained from reviewing those or other decisions because in none of them was O. 45 r. 1 employed to set aside a judgment as a substitute for an appeal against it on the ground that the judgment was incorrect, or that it was contrary to or inconsistent with some other decision of this or another court. Indeed there is some authority to the opposite effect: see Stubberfield v Brisbane City Council [1996] QCA 184, 14 June 1996, at 3, 8.”

[14] McPherson J.A. went on to describe O. 45 r. 1 having its origin in a power that was held by Griffith C.J., with the assent of Harding and Real JJ., in Woods v Sheriff of Queensland (1895) 6 Q.L.J. 163, to have been exercised both in Chancery and at common law before the Judicature Act 1876. Griffith C.J.’s explanation of the power included that an application for that variety of relief was not in the nature of an appeal or rehearing, each of which was founded on the contention that the order appealed from ought not to have been made. Instead the application (now made under UCPR r. 668) was for a new order which had the effect of suspending in whole or in part the operation of a previous order, and started with the assumption that the original order was correctly made. McPherson J.A. went on in Rockett (describing Sir Samuel Griffith’s views):

“His careful observations in Woods v. Sheriff of Queensland drew a firm distinction between a claim to relief from a judgment or order that was challenged as erroneous as distinct from one that was accepted as being correct at the time it was made. It is only in the latter case that the relief may be sought under r. 668(1)(a) by reason of facts arising after the order was made or the judgment was given. Otherwise it is the procedure by way of appeal that must be resorted to. In saying this I leave out of account the possibility that r. 668(1)(b) may have some operation in relation to applications for new trials on the basis of the discovery of fresh evidence. This is not a question that arises here.””

(Citations omitted).

  1. [61]
    In Mbuzi v Favell,[17] the Court of Appeal stated the recourse to r 668 is inappropriate when the applicant party in fact contends that the decision originally made was wrong when made, and when that party’s position is really that of an appellant challenging the validity of the original order.
  2. [62]
    Rule 668 (1) (a) only permits a party that accepts a judgment or order as being correct at the time it was made, to seek to rely upon facts arising after the judgment or order for relief in accordance with the terms of the rule.[18] It does not apply to a claim to relief from a judgment or order that is challenged as erroneous; in which case, the proper remedy is to seek relief by way of appeal. 
  3. [63]
    In this case, the applicants state that they are not challenging my original orders and submit:

“(i)  her Honour’s decision is not being attacked as if this were an appeal. The Plaintiffs accept her Honour’s decision was open to her on the material in front of her at the Original Hearing; but

  1. the material before the Court was incomplete because it did not include the material the Plaintiffs were unable to submit due to being taken by surprise at the Original Hearing – and, therefore, through no fault of their own, not heard on a relevant matter;
  1. her Honour’s decision was based on ‘facts’ presented by the Defendant that were wrong; and
  1. the ability of a Court to reopen a hearing and vary, modify or extend an order in appropriate circumstances is not in dispute.”
  1. [64]
    The applicants state that my original decision was correctly made on the material before me. However, they say that the material before me was incomplete. 
  2. [65]
    It seems that the reason the applicants did not appeal my decision was not because they accepted my decision, but rather, that they thought it was quicker and cheaper to file a new claim: 

“PLAINTIFF GOLDSMITH: - - - if I may. You did ask me, your Honour, why we didn’t - sorry. I withdraw that. It was - you put to me that we could’ve appealed your previous decision, and I just want to briefly say why we didn’t, and it has to do with rule 5, and rule 5, as your Honour is – says that:

Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality.

The position that we were in following your Honour’s previous decision was that because it was an interlocutory decision, it hadn’t disposed of our rights, and so rather than appeal your decision, we’ve – we were able to file a new claim. The cause of action was still alive, and so we did that, and Justice Crowley has looked at that decision and said - has looked at that claim, which is, in essence, identical to the one that – the original claim. Everything’s fine, except for our change of position and so – and for that, he has said it’s an abuse of process, and that’s what’s been appealed. So again, off to the Appeal Courts. Appeals are lengthy and expensive, especially for people in our position.

So rather than go through with just – with an appeal of Justice Crowley’s decision, which we had to file within 28 days, obviously. Done that, but we then asked for this matter, the original matter, to be reopened, because if it is reopened, then it will make the appeal against Justice Crowley somewhat unnecessary, and again, that will be in –  we submit that that would be in keeping with rule 5, in that we can deal with the real issue in the most inexpensive and expeditious way possible. So that’s really the only point that I – so we are trying to work as quickly and inexpensively as possible within those rules, notwithstanding the other issues, which we’ve discussed at length. That’s the only point that I wanted to make, your Honour.

HER HONOUR: I don’t really quite understand that. Why just didn’t you appeal my decision?

PLAINTIFF GOLDSMITH: Because it was just quicker and cheaper to file a new claim, because your Honour didn’t – you didn’t deal with the under – there is never – the underlying claim, the cause of action, has never been dealt with. So - and what you did was effectively gave summary dismissal of the – of the – of the claim. So rather than go to the trouble and expense and time of going to the Court of Appeal, because the cause of action was, in our submission, still alive and that dealt with the limitation point, we went to – we filed a new claim, and that went to Justice Crowley. 40 Justice Crowley has said, “Absolutely nothing wrong with your claim, except for you’ve – you’ve changed your position by arguing six years, three years to suit yourselves,” and, for that reason, he said for it to continue would be an abuse of process.”

  1. [66]
    The course that the applicants have chosen has been anything but efficient. Their approach involves a web of seemingly never-ending litigation:   

“HER HONOUR: Because what I’m more interested in is to say this is really what you’re seeking to do, is an appeal before me, and to be having a foot in the door to the Court of Appeal by getting the appeal of my original decision.

PLAINTIFF GOLDSMITH: What we’re actually trying to do, your Honour, is keep it out of the Court of Appeal. There’s a possibility – and we’re not – this is not a submission. There’s a possibility that, if you found for us and then you – and you reinstated Justice Daubney’s decision, and you found that the – that we hadn’t misled Justice Daubney, then we would seek to reopen Justice Crowley’s decision, because there would be new material.”

What do the applicants allege is the new fact pursuant to r 668 (1) (a)?

  1. [67]
    The applicants, in their written submissions, set out two relevant facts which they characterise as:
    1. a “first fact” that was presented at the original hearing; and
    2. a “new fact” which appears from Crowley J’s reasons.
  2. [68]
    The applicants particularise the first fact to be:

“…implicit in the Defendant’s statements was a representation that the limitation for the Claim was six years.” (The first fact).

  1. [69]
    Accordingly, it is necessary to consider the respondent’s submissions made at the original hearing in relation to the limitation period.
  2. [70]
    The respondent’s written submissions at the original hearing raised the limitation period expiry in this way:

“47. Fourthly, the plaintiffs’ position is that the claim was filed shortly before the relevant limitation periods expired. That may not be correct for at least some of the claimed loss, but in any event, the plaintiffs accept that the limitation periods expired after they filed. 

  1. As Jackson J said in McIntosh & Anor v Maitland & Ors [2016] QSC 203, the expiry of a limitation pint is an important circumstance, because a party who ‘starts a claim in the last days before the expiration of a limitation period, but does not serve it so as to avoid having to proceed in an expeditious way, and then seeks to renew the claim after one year without making reasonable efforts to serve seeks, in effect, to extend the maximum limited time to proceed as of right.’
  1. Here, the plaintiffs have not proceeded expeditiously, despite the passing of the limitation periods. To the contrary, they have elected to advance the case only when it suited them. No meaningful progress has been made in the claim since it was filed over 4 years ago, and despite enjoying the benefit of the claim being renewed twice.
  1. Also, despite telling Daubney J that they would be applying to re-register Gold Tip, nothing on that front appears to have been done.
  1. Like in Wallace v Bendigo and Adelaide Bank Limited & Anor [2020] QCA 122, the commencement of the claim shortly before the expiry of a period of limitation is ‘further evidence of a strategy to keep these claims alive whilst not having to prosecute them.’”

(Citations omitted).

  1. [71]
    The applicants state that during the original hearing, I was expressly told by the respondent that the limitation period for claim had expired.
  2. [72]
    At the original hearing I specifically enquired with the respondent’s counsel whether the limitation period expired after the applicants filed their claim:

“HER HONOUR:   Can I just confirm – the ex – limitation periods did expire after they filed.

MR CHESTERMAN:   Yes.

HER HONOUR:   Well, which one?  After the first, but ‑ ‑ ‑

MR CHESTERMAN:   Your Honour ‑ ‑ ‑

HER HONOUR:   Yes.  Before the ‑ ‑ ‑

MR CHESTERMAN:   Yes.

HER HONOUR:   Before the second and the third.

MR CHESTERMAN:   In its present form, can I – yes.  I agree with your Honour.  In its present form, the statement of claim is, in many respects, inscrutable about the precise nature of the loss that is sought to be recovered.

HER HONOUR:   Yes.  So it’s hard to determine.

MR CHESTERMAN:   Yes.  But on their case, which I had prepared to proceed on this basis today, they filed this claim, when they filed it, to preserve a limitation period.

HER HONOUR:   Was it within the limitation period?

MR CHESTERMAN:   Just within.

HER HONOUR:   Yes.

MR CHESTERMAN:   On their case, I think the 28th of March was when the limitation period expired, and they filed on the 23rd ‑ ‑ ‑”

HER HONOUR:   Yes.

MR CHESTERMAN:         which is another relevant consideration, as Justice Jackson noted in Maitland and as I’ve identified in my written submissions.  A party who does that and then doesn’t serve, really extends for themselves the limitation period, and that neatly ties in with the point I want to make about prejudice, but if I can just, before I get to that, summarise my submissions on the explanations given by the plaintiffs for the delay.”

  1. [73]
    Accordingly, the applicants state that I made my decision assuming the respondent’s submission to be correct. 
  2. [74]
    However, I note that, at the original hearing, the applicants’ counsel’s submissions buttressed the respondent’s submission as to the relevant time limitation period. Not only did the applicants’ counsel not challenge the respondent’s submission as to the relevant time limitation, but he also supplemented it by submitting that:

“MR UPTON:   Just with one thing with respect to prejudice, your Honour.  If the claim is not renewed, or the orders of Justice Daubney are set aside, then the respondent would be summarily shut out from pursuing what I say is a – in my submission, is a maintainable course of action.  The respondents are 60 year old – 60 years old.  They’re impecunious.  They’ve poured their life savings into the newsagency, the subject of the proceedings.  In my submission, to summarily shut them out would cause them an irreparable prejudice, and that prejudice, in my submission, would plainly overtop or overweigh any inconvenience that might be visited upon AMP.”

  1. [75]
    By submitting that the applicants would suffer an “irreparable prejudice” if they were shut out from pursuing a maintainable cause of action if the claim was not renewed, the applicants, in effect, accepted the submission that the time limitation had expired. It certainly is inconsistent with the applicants’ present position, which is, that at the time of the original hearing, they believed they faced a 12-year time limitation and could have torn up their claim and filed a new one.
  2. [76]
    In my findings I referred to the limitation period in this way: 

“Having already commenced the proceeding, the plaintiff’s position was preserved. This could actually have been a circumstance warranting the prompt service of the claim in order to see whether the defendant called up a defence based on limitation of action.  The plaintiff’s position is the claim was filed shortly before the relevant limitation periods expired and there is just some dispute about limitation periods, but the plaintiffs accept the limitation periods have expired after they have filed. 

As Jackson J said in McIntosh, the expiry of a limitation point is an important circumstance, because a party who ‘starts a claim in the last days before the expiration of a limitation period, but does not serve it so as to avoid having to proceed in an expeditious way, and then seeks to renew the claim after one year without making reasonable efforts to serve seeks, in effect, to extend the maximum limited time to proceed as of right’.

Like in Wallace v Bendigo and Adelaide Bank Limited & Anor [2020] QCA 122, the commencement of the claim shortly before the expiry of a period of limitation is further evidence of a strategy to keep these claims alive whilst not having to prosecute them.”

  1. [77]
    The applicants state that the “new fact” arose when on 17 February 2023, in a near-identical proceeding between the parties, Crowley J found, inter alia: the Court of Appeal had not decided the limitation period as the respondent contended; and the limitation period for claims made under the relevant lease was 12 years and had not expired. 
  2. [78]
    The applicants particularise the “new fact” as:

“His Honour found because the relevant lease was registered, any claim made upon it was a specialty and a limitation period of 12 years applied”. (The new fact).

  1. [79]
    Relevantly, the applicants state that Crowley J’s decision was not based on the reasoning of the Court of Appeal but instead was reached by applying the relevant legislative provisions[19] to the facts of the second claim.
  2. [80]
    Accordingly, the applicants state that the new fact also applied to the first claim that I was considering and accordingly I was misled by the respondent.
  3. [81]
    The applicants state Crowley J’s decision, about the limitation period being 12 years, is a new fact because:

“10. It is a new fact because before the decision of Justice Crowley it was not known as a fact but only as an argument made by the Plaintiffs.

  1. The Plaintiffs have consistently maintained that 12 years was the true limitation period foir [sic] the Claim but their position was rejected by the Defendant, Justice Daubney and – in the submission of the Defendant – the Court of Appeal.
  1. Prior to the decision of Justice Crowley, the Defendant insisted that the limitation period was six years. Two directly contradictory facts cannot co-exist. The First Fact prevented the existence of the New Fact until his Honour’s decision.”

(Footnote omitted).

  1. [82]
    The applicants in their oral submissions before me, set out the significance of Crowley J’s decision in relation to the time limitation issue:

“PLAINTIFF GOLDSMITH: So what Justice Crowley has done, your Honour, is he has determined that what the Court of Appeal found in a previous matter between the two parties and upon which the defendant has based its claim – that the limitation period for the claim is six years – what his Honour – what Justice Crowley has found is that that interpretation is incorrect and that the interpretation that should have been put on it is that the limitation period is 12 years and not six years, and that’s the fact. The fact is that section 10(3) of the Limitation of Actions Act applies, not 10(1). That’s the fact. The fact that – the – sorry. What he has found – the fact that he has found is the part of the statute that applies to the claim, and we say that the reasoning – the way that his Honour got there – we say is irrelevant. The fact is the statute itself.”

  1. [83]
    However, ultimately the applicants in their oral submissions framed the new fact in a much more nuanced way, that is, it is not known whether the time limitation had expired. They say this is in contrast with the respondent’s submissions at the original hearing where it was submitted that the time limitation had expired after the applicants had filed their claim:

“PLAINTIFF GOLDSMITH: This whole argument about have we changed our position, our submission is that we have never changed our - sorry, never changed our position. We’ve always contended for 12 years, with the singular exceptions of when Justice Daubney said, “No, it’s six years,” and when the Court of Appeal apparently said, “No, no, it’s six years.” But we always couched that in terms of that decision was made without the benefit of argument, and therefore when we eventually get this to trial, we will argue that it’s 12 years, and we will - and those are the decisions that Justice Crowley has made. Our opponents say that Justice Crowley didn’t make that decision and that in fact Justice Crowley can’t make that decision. And indeed, there is an argument that that decision has never been made, and we still don’t know whether it’s six or 12 years. The important point is - - -

HER HONOUR: So you accept that, that there is an argument that Justice Crowley had?

PLAINTIFF GOLDSMITH: There’s an argument. Absolutely there’s an argument.

HER HONOUR: Yes.

PLAINTIFF GOLDSMITH: Whether the argument is right or not, that’s not - - -

HER HONOUR: Yes.

PLAINTIFF GOLDSMITH: - - - for - but there is, yes, because it has never been in front of a judge in a trial.

HER HONOUR: So what’s the new fact?

PLAINTIFF GOLDSMITH: Okay. So what we say is the new fact is different to the fact on which you based your decision, which was six years. What we say is we don’t know whether it’s six years or not.

HER HONOUR: Okay. So that’s the highest you’re putting it now?

PLAINTIFF GOLDSMITH: Well, I think that that’s right, isn’t it, your Honour?”

There is no new fact for purposes of r 668 (1) (a)

  1. [84]
    In my view, whatever way the applicants frame their new fact (whether it be that the time limitation period is 12 years, or it is not known what the time limitation period is) it is not a new fact for the purposes of r 668 (1) (a).   
  2. [85]
    The applicants stated that prior to the decision of Crowley J, “the 12-year limitation period for claim had no existence as a fact; it was only an argument made by the [applicants]”. They say that it was the decision of Crowley J, as the finder of facts, that caused the true fact to arise. I do not accept such a submission. 
  3. [86]
    Crowley J did not finally determine whether the limitation period was six years or 12 years. Rather, his Honour was considering an interlocutory application and did not determine the issue on a final basis. The applicants accept this.
  4. [87]
    Accordingly, as his Honour did not determine the limitation issue on a final basis, no issue estoppel arises.
  5. [88]
    Indeed, the applicants’ position is no longer as concrete as when they initially particularised the 12-year limitation period as being the new fact. Rather, the applicants ultimately submit that the new fact is that it is not certain that the time limitation was six years.
  6. [89]
    In Rockett v The Proprietors – “The Sands” Building Units Plan No. 82 (Rockett)[20] it was held that reasons for judgment do not constitute facts for the purposes for r 668 (1) (a).
  7. [90]
    Rockett involved a District Court trial where judgement was given against two defendants. Both defendants appealed this decision with different outcomes. One appeal was dismissed by consent of the parties. The other went on to be heard with the appeal being allowed. The unsuccessful party then applied to the District Court pursuant to r 668 (1) (a) for orders that the judgment be set aside and that instead judgment with costs be entered for the second defendant against the plaintiffs in the action. At first instance it was held that the decision of the Court of Appeal was within the meaning of r 668 (1) (a), a “fact” arising after an order had been made and the judgment against the second defendant was set aside. However, this was later overturned on appeal. McPherson JA stated that:

“[7] Although not without an element of ingenuity, I consider the reasoning that led to that result to be misconceived. In the first place, it seems to me to be doubtful whether the decision of the Court of Appeal is, properly speaking, a “fact” for the purpose of r. 668(1)(a). It appears to be more in the nature of a judicial act having an operation and effect of its own. Assuming, however, that it may nevertheless constitute a fact for the purpose of r. 668(1)(a), the difficulty is that, considered in isolation, it does not reveal anything that would entitle the body corporate to be relieved from the judgment given against it by Robin D.C.J. From the fact that the judgment against the first defendant Mrs Anthony was set aside on appeal it does not follow that the judgment against the second defendant body corporate in the same action must suffer the same fate. To meet this objection, the body corporate in the application before Wylie D.C.J. relied on the pleadings in the District Court action to show that the issues in the claim against Mrs Anthony were in all respects the same as those in the action against the body corporate, so that the result should also have been the same. To meet a further possible objection that, even so, it is impossible to be sure on what basis Mrs Anthony had succeeded in her appeal, the appellant relied on the reasons delivered by the Court of Appeal in allowing that appeal, as well as those of Robin D.C.J. in his judgment at first instance. From this, it emerges that the reason why the judgment against her was set aside was that, contrary to the finding of Robin D.C.J. at the trial, the Court of Appeal was not satisfied that, on the evidence, Mrs Rockett and Mr Devencorn had discharged the burden imposed on them by s. 17 of the Defamation Act 1889 of proving that, in terms of s. 16(1)(e) of the Act, Mrs Anthony had acted without good faith in publishing the defamatory matter complained of; or, to express it in another way, that she had been actuated by spite or ill will in publishing that matter. And since, in making the publication in question, Mrs Anthony was acting on behalf of the body corporate, the same consequence ought, it was submitted, to follow in the case of the second defendant as of the first defendant, which was that the District Court judgment should be set aside.

[8]  I am, however, not persuaded that the reasons of the Court on appeal in Anthony v. Rockett [1999] QCA 434 can simply be transposed in this fashion from one defendant to the other. Doing so involves treating as a “fact” or “facts” under r. 668(1)(a) not only the judgment as such but also the reasons for that judgment. Judicial reasons for a decision are not facts, but opinions; and even if the opinions of experts (as Judges of Appeal presumably are) may for some purposes assume the character of facts, it is not that function that is served by judicial reasoning. Its function is to justify the decision or judgment arrived at in the particular proceedings before the court. It is true that the notices of appeal lodged by Mrs Rockett and by the body corporate were in the same or similar terms, but it is impossible to predict with confidence that the same result would inevitably have followed if the body corporate had continued with its appeal no. 7710 of 1998.”

  1. [91]
    In my view, Crowley J's reasoning about the limitation period is not a fact within the meaning of r 668 (it being a judicial act not in the nature of a final determination of an issue). Crowley J's reasoning is no more than his Honour’s opinion on a matter that is yet to be determined on a final basis following a trial. 
  2. [92]
    The applicants contend that it is neither the judicial act performed by Crowley J in the making of his Honour’s decision, nor his Honour’s reasoning, that is the new fact; rather they say it is the proper application of the legislative provisions.
  3. [93]
    I note that the respondent’s position is the time limitation period is six years and not 12 years. Accordingly, it is still a matter of contention between the parties as to what the limitation period is. The applicants’ ultimate position is that “we don’t know whether it is six years or not”.
  4. [94]
    However, nothing in Crowley J’s judgment impacted whether the applicants were permitted to argue the applicable limitation period before me which involved mixed questions of fact and law. There was nothing stopping the applicants at the original hearing from submitting that the limitation period was 12 years. However, they did not do so. 
  5. [95]
    The applicants submit that this was because they were taken by surprise and not prepared for any argument about time limitation.  However, the applicants’ counsel at the original hearing, not only did not challenge the respondent’s submission as to the applicable time limitation, but also reinforced this position by submitting that if the claim was not renewed, or the orders of Daubney J were set aside, then the respondent would be summarily shut out from pursuing a maintainable course of action. 
  6. [96]
    In my view, no new fact which informs the question of what the limitation period has arisen by virtue of Crowley J’s decision.
  1. [97]
    However, even if there was a new fact, pursuant to r 668 (1) (a) it must be such to entitle the applicants to be relieved from the order. 
  2. [98]
    Rule 668 (1) (a) not only requires a new fact arising after the making of an order, but also that this new fact entitles the plaintiff to be relieved from my order. In AMA v CDK, Applegarth J stated:[21]

“[36] While it is appropriate to apply an expansive view of the words “entitling” or “entitled” in r 668(1) as extending to cases in which relief depends on a favourable exercise of discretion, the circumstances in which courts will permit a final order to be set aside are well-established and the exercise of the discretion under r 668 is affected by the principle protecting the finality of judgments…”

(Citations omitted).

  1. [99]
    In IVI Pty Ltd v Baycrown Pty Ltd,[22] Jerrard JA considered the high bar required to entitle a party to relief:[23]

“[16]  In Commonwealth Bank of Australia v. Quade (1991) 178 C.L.R. 134 at 140, the joint judgment repeated that passage with apparent approval, while remarking that it was unnecessary to consider whether the somewhat obscure qualification expressed by the words “or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary” represented anything more than an illusory relaxation of the primary test, which was that it be “reasonably clear that ... an opposite result would have been produced.” I agree with Wilson J. that it was appropriate for the learned trial judge to consider those principles. Doing so is supported by the decision of Handley JA in Harrison v. Schipp (2002) 54 N.S.W.L.R. 612, where that court considered the availability of a Bill of Review and its nature. That action for review was the source of the power described by Griffiths C.J. in Woods v. Sheriff of Queensland, and reproduced in O. 45 r. 1, as described by McPherson JA in Rockett v. The Proprietors – “The Sands” B.U.P No. 82, and in his earlier judgment in K.G.K. Constructions Pty Ltd v. East Coast Earthmoving Pty Ltd [1985] 2 Qd.R. 13 at pp. 19 to 20. The judgment in Woods v. Sheriff of Queensland makes clear that Griffith C.J. was describing relief similar to that obtainable by a Bill of Review.

[17]  Handley J.A. wrote of that relief, in Harrison v. Schipp:

“If the decree had been enrolled, limited relief was still available by a bill of review. Such a bill could be brought for error apparent, that is an error of law appearing in the decree itself, or for some new matter which had arisen since the decree, or with the prior leave of the court on discovery of new matter. On an application for leave the court had to be satisfied that the matter newly discovered was relevant and material, such as might probably have occasioned a different determination, and that it was not discoverable by due diligence before the trial.” (citations omitted).

[18]  It is accordingly consistent with the ultimate source of r. 668 to have close regard to those described principles when asking whether facts newly arising or discovered would “entitle” a person against whom an order had been made to be relieved from it, or to an order or decision in that person’s favour. Any lesser degree of proof would not establish that the applicant was “entitled” to relief from, or to a different, order. The appellant suggests otherwise in argument, relying on the decision of this Court in Rankin .v Agen Biomedical Ltd [1999] 2 Qd.R. 435. In that case the Court held that the words “entitle” and “entitled” in O. 45 r. 1 were capable of referring to instances in which the person seeking relief had to depend upon a favourable exercise of discretion, and claimed no absolute right to relief. That case, like K.G.K. Constructions Pty Ltd v. East Coast Earthmoving Pty Ltd, was one in which the applicant relied on O. 45 r. 1 for relief from the consequences of a self-executing order, on the basis that events subsequent to the making of the order justified resort to that rule. It was, with respect, one in which the order under appeal would have been a manifestly unjust exercise of a discretion had the facts subsequently arising or discovered been brought to the knowledge of the judge making the original order. For that reason reference to those cases does help the appellant.”

(Citations omitted).

  1. [100]
    An obvious circumstance in which the discretion given by r 668 would be exercised is when new facts arise, or are discovered after an interlocutory order is made, so that the order would not have been made had those facts then been known or existed.[24]
  2. [101]
    In my view, the impact of Crowley J’s decision is not of the kind in which it can be said that “it is reasonably clear that the fresh evidence would have produced an opposite verdict”.[25] 
  3. [102]
    I note that the applicants’ counsel before Crowley J characterised the time limitation aspect as playing a very small part in the original hearing:

“MR UPTON: Now, if I ask you to turn to pagination 990, this is the transcript of the application before Justice Wilson. Starting at line twenty-fi – or 26, going through to line 40. So it was the applicant that informed her Honour that the current limita – that the limitation period was six years. It’s – and then, if you just follow for the next half page or so, your Honour, the part – the – her Honour and my friend move away from that conversation about limitation period, and they start traversing other issues. The respondent in the hearing before Justice Wilson never joined issue with the fact that the limitation period was six years. I have to frankly admit that. However, the limitation period played a very small part in the matters before Justice Wilson. In fact, in my submission, paragraph – page – pagination 990 is all of the discussion that was had about the limitation period before Justice Wilson. The issues that occupied the time before Justice Wilson was the argument about was there a good reason for the delay in the filing – sorry – in the serving of the then Supreme Court claim, and, further, whether or not there had been full and frank candidness before Justice Daubney when the claim was renewed in the first instance. What I can say is that there was no positive representation before Justice Wilson that the period of limitation was – by the respondents – that the period of limitation was six years.

….

HIS HONOUR: And so the – to the extent that it wasn’t raised before Justice Wilson, you accept that that was the case, but, nevertheless, it was a peripheral aspect of the argument, and the argument was really about the other issues with respect to no good reason being shown.

MR UPTON: Correct. Because at the end of the day, what Justice Wilson determined was there’d been an unacceptable delay in the service of the proceeding. She said there’s no good reason for that delay, and the sanction that you have to bear for not serving in an expeditious way is that you’ve offended rule 5, and I’m going to dismiss the claim. But it didn’t terminate rights. The judgment didn’t terminate rights because there was no adjudication on the merits, and this is – with respect, this is the – the respondent’s complaint, that it says that it’s got a good cause of action; it says it’s been brought within time; and it says that it’s entitled to some adjudication of the rights of its – of – of the claims that it makes, and to dismiss it without doing that would of itself, in my submission, if you’ve accepted the basal propositions that I’ve put about time, be an abuse of process because it would undermine public confidence in the administration of justice if a party with a good and proper claim that was brought within time was shut out from – from prosecuting that claim without the merits of that claim being adjudicated upon.”

  1. [103]
    That the claim was filed shortly before the expiration of a limitation period was just one of the factors which led me to conclude that the applicants failed to show “some other reason” to renew the claim, a view embraced by the applicants’ counsel before Crowley J.
  2. [104]
    Further, this is not a case where there has been malpractice or misconduct on the part of the respondent.[26]
  3. [105]
    Nothing that the applicants have raised constitutes a new fact which entitles them to be relieved from my order made on 30 May 2022 pursuant to r 668 (1) (a) of the UCPR.

The applicants allege that the respondent’s conduct was misleading

  1. [106]
    The applicants state that even if r 668 (1) (a) is not engaged then this matter should be reopened in the inherent jurisdiction of the Court as the respondent’s conduct was misleading in relation to their application to set aside Daubney J’s order.  
  2. [107]
    The applicants state that the respondent misled the Court about, inter alia:
    1. the duration and expiry of the limitation period; and
    2. the conduct of the applicants before Justice Daubney.
  3. [108]
    The applicants state these misrepresentations were material because:
    1. the currency of the claim is relevant to whether there was “another good reason to renew the claim”; and 
    2. if the applicants did not mislead Justice Daubney, there was no reason to set aside his Honour's decision and re-hear the renewal hearing de novo.
  4. [109]
    The applicants’ major complaint is that they were taken by surprise by the content of the respondent’s submissions in relation to the original hearing. 
  5. [110]
    After the claim was served on the respondent, the respondent’s legal representatives wrote to the applicants on 7 April 2022, demanding that they withdraw the claim because of, allegedly:
    1. a lack of expedition in serving the claim in breach of rule 5 UCPR; and
    2. Anshun[27] estoppel.
  6. [111]
    Accordingly, the applicants state that their written and oral submissions for the original hearing were prepared and based on this correspondence.
  7. [112]
    The applicants state that at 8pm on 25 May 2022, the night before the original hearing, they were provided with the respondent’s written submissions which relied on matters that had not been previously raised with the applicants. 
  8. [113]
    Therefore, the applicants state that the respondent misled the applicants as to the true reasons on which it intended to rely for its strike-out application. Accordingly, the applicants submit that they were taken by surprise and had not prepared, and were prevented from presenting, written and oral arguments and evidence against the respondent’s propositions. 
  9. [114]
    The applicants state that they were clearly prejudiced by the misleading conduct of the respondent, as if they had been given notice that they were required to present evidence to support their submissions before Daubney J, then they would have produced the necessary evidence. 
  10. [115]
    Accordingly, the applicants submit that there would have been no basis for Daubney J’s orders to be set aside and for the renewal application to be heard as a hearing de novo.
  11. [116]
    The premise for this current application is that at the original hearing, the Court was misled by the respondent on material matters, including:
    1. the applicants’ alleged misrepresentations before Daubney J; and
    2. and the applicable limitation period for the claim.  
  12. [117]
    The applicants submit that they are entitled to the same procedural opportunity afforded to the respondent at the original hearing.
  13. [118]
    The applicants acknowledge that at this original hearing, where they were represented by counsel, as soon as they became aware of these matters, they could, and arguably should, have requested an adjournment to prepare appropriate submissions.
  14. [119]
    However, the applicants state that this failure to request a timely adjournment does not excuse or provide a defence for the misleading conduct of the respondent that caused the applicants, to be taken by surprise. Nor does it, they say, alter that the applicants have not been heard on a matter through no fault of their own. 

Inherent jurisdiction - principles

  1. [120]
    The relevant principles in which a matter should be reopened have been considered by the High Court in Autodesk Inc v Dyason (No. 2)[28] (Autodesk) and summarised by the NSW Supreme Court in Wentworth v Rogers[29] and include:
    1. whether the applicant has shown that, without accident or fault on the applicant’s part, he or she has not been heard on a relevant matter; and
    2. whether the applicant has shown an error in the court’s reasoning because of a misapprehension of the facts.
  1. [121]
    In Wentworth v Rogers, Barrett J observed:[30]

“It seems to me that the relevant principles … can be summarised in one basic proposition, namely, that a single judge whose decision is susceptible to appeal through readily available channels (with or without any preliminary need for leave to appeal) should allow re-opening after judgment where it is obvious to that judge that the decision has miscarried and that the miscarriage may be rectified and the situation retrieved by attention to the matter by that judge rather than by an appeal court.”

(Emphasis added).

  1. [122]
    In Wentworth v Wentworth,[31] Santow J gave a number of examples of where review was allowed:
    1. where the court’s reasons for judgment inadvertently did not deal with important matters argued at the hearing and where an appeal to correct this would involve inevitable delay;[32]
    2. where the court’s reasons involve “infelicity of expression and ambiguous statements” which may be corrected by the trial judgment upon the bringing in of short minutes;[33]
    3. where re-opening in respect of an order which was consequential upon a finding of error of law and the trial judge had no intention that the order have the effect that further evidence could be called on in the remittal to the tribunal below, and where the possible effect of the order had not been the subject of argument at hearing;[34]
    4. where what was sought was further consideration of orders in respect of the nature and extent of equitable relief (in the context of a complex litigation);[35]
    5. where a party had misunderstood the basis of a pleading and failed to address the issue in its strike-out application;[36]
    6. where excision of a paragraph from a judgment was sought where the trial judge had mistakenly referred in his or her reasons to a situation which did not exist;[37] and
    7. where the trial judge recalled his or her order after deciding it was wrong immediately after making it.[38]
  2. [123]
    Santow J then set out, with reference to Autodesk, when “the exceptional step” of reviewing an issue might occur:[39]

“While illustrations of where the courts have or have not re-opened a judgment not yet entered are of value, they can be subsumed more generally in what Mason CJ said in Autodesk (at 301-2). He delimited the scope of the discretion by explaining that “the exceptional step” of reviewing an issue might occur where a court had good reason to consider that it had proceeded on a misapprehension as to the facts or the law and where the misapprehension cannot be attributed solely to the applicant’s neglect or default.”

The applicants were not taken by surprise at the original hearing

  1. [124]
    The applicants refer to Chan v Goldenwater LDL Pty Ltd[40] which was an appeal against an interlocutory order where an application to strike out two paragraphs of a statement of claim was dismissed. The Court of Appeal dismissed the appeal. Sofronoff P’s reasons considered the concept of surprise in relation to r 149:[41]

“The proposition that the pleading does not disclose a cause of action is untenable and can be ignored. The real question for his Honour was whether or not the form of pleading would prejudice a fair trial of the proceeding. Whether or not the pleading had that effect was a matter of judgment akin to the exercise of a discretion because it involved a consideration of a number of factors, none of which is necessarily determinative of a result. The Uniform Civil Procedure Rules 1999 (“UCPR”) requires a pleading to contain a statement of all the material facts and to state specifically any matter that, if not stated, may take the other party by surprise. That final aspect of the rule does not require a pleader to guarantee that the opposing party will encounter nothing unexpected at the trial. Trials are full of the unexpected. The rule requires a pleading to contain all that is reasonably and fairly necessary to ensure that the opposing party is not met at the trial by an unexpected turn in the case which that party, acting in good faith and reasonably, is unable to meet because of a natural failure to prepare to meet it having regard to the content of the pleading. That is what “surprise” means in the context of this rule, which has, in one form or another, existed since 1873.”

(Citations omitted).

  1. [125]
    In my view, this is not analogous to the situation of what occurred at the original hearing.
  2. [126]
    Prior to the hearing, on 7 April 2022, the respondent wrote to the applicants inviting them to discontinue proceedings or otherwise they would make an application to set the originating claim aside. 
  3. [127]
    On 29 April 2022, the respondent filed an application to set aside Daubney J’s decision to renew the claim and dismiss the proceeding.
  4. [128]
    The matter was heard on 26 May 2022 and the respondent provided their submissions to the applicants at 8pm on the night before the hearing where it:
    1. raised an argument that the applicants had made material misrepresentations in the renewal hearing before Daubney J, as a result of which his Honour’s decision and orders should be set aside and the renewal application be heard de novo; and
    2. submitted that the limitation period for making the claim had expired.
  5. [129]
    In these submissions there was no reference to the Anshun estoppel point.
  6. [130]
    At around the same time as the respondent provided their submissions to the applicants, the applicants also provided their submissions to the respondent. However, these submissions did not address the issues raised in the respondent’s submissions. Rather, the applicants’ submissions addressed the issues raised in correspondence some six weeks earlier.
  7. [131]
    However, in my view, the applicants clearly had time to appreciate the content of the respondent’s submissions. I note that the original hearing commenced at 12:24pm, then adjourned at 1pm and resumed again around 2:30pm.  The applicants did not seek an adjournment at any time prior to, or during, the hearing.  
  8. [132]
    The applicants now say they were taken by surprise and were not heard on some matters. 
  9. [133]
    The applicants state in their written submissions that they do not know why no adjournment was asked for by counsel. They speculate that possibly the surprise was so great that he was overwhelmed. There is no evidence to support such a contention. The applicants’ counsel has not provided an affidavit in these proceedings to explain any of the matters raised by the applicant.
  10. [134]
    At this present hearing, Mr Goldsmith made the following submissions about the applicants’ counsel:

“HER HONOUR: Do you say that you needed an adjournment, did you?

PLAINTIFF GOLDSMITH: Well, we had just been told at 8 o’clock the night before the hearing that entirely new arguments for which we had not prepared were going to be made. We had been told that the basis of the submissions of the defendant were Anshun estoppel - - -

HER HONOUR: Yes.

PLAINTIFF GOLDSMITH: - - - and delay, not limitation. Nor did they tell us that they were going to specifically argue the points about material misrepresentations before Justice Daubney, and we contend that if we had been asked to demonstrate that our case was purely documentary, the simple way to do that is to show the documents, which I will do with your Honour today. What we say our – now, our counsel should, when he realised that – and I’m not trying to blame him. I – we can’t tell you why he didn’t ask for an adjournment because, clearly, he should have done, but the fact is that he shouldn’t have been put in the position where he had to ask for an adjournment. We have been told, as you’ve seen from the letter, these are the two things that we are going to argue and then when we get the submissions the night before, we find that there are completely new arguments to be – to be raised.

HER HONOUR: Yes, but your counsel – the matter, I think, began at 12.30 – or 12.24 on the applications list, and you were represented by - - -

PLAINTIFF GOLDSMITH: Mr Upton, your Honour.

HER HONOUR: - - - Mr Upton, and Mr Upton didn’t provide – request for an adjournment.

PLAINTIFF GOLDSMITH: No, he didn’t, your Honour.

HER HONOUR: And I’ve got no material before me about the reasons why or why not that occurred.

PLAINTIFF GOLDSMITH: We have no – we – we simply don’t know why he didn’t – in – in – in a case where we’ve clearly been taken by surprise, he should absolutely have started the proceedings by asking for – for an adjournment.

HER HONOUR: When did you see those submissions?

PLAINTIFF GOLDSMITH: We saw the admissions that morning, your Honour.

HER HONOUR: And so therefore, you would’ve known that there is a jurisdiction point, and you were here at the hearing. You didn’t raise that with your counsel?

PLAINTIFF GOLDSMITH: No, your Honour.

HER HONOUR: Okay. So - - -

PLAINTIFF GOLDSMITH: We left their – we left their counsel too.

HER HONOUR: Yes. But – so if you thought that was an important issue, which you said that you’d been waiting to address, then why didn’t you say, “This is a matter that we need some further time”?

PLAINTIFF GOLDSMITH: So we – on that particular day, your Honour, it was part of a callover, and there was – you – you have a – a number of – a number of cases and on a very busy day, and we had a period where we were adjourned for a couple of hours - - -

HER HONOUR: Yes.

PLAINTIFF GOLDSMITH: - - - and I spoke to Mr Upton about that specific point at that time and said, “What do we do about this?” And Mr Upton didn’t have an answer. So it’s - - -

HER HONOUR: Well - - -

PLAINTIFF GOLDSMITH: It’s – it’s impossible for us to – we – we have to take the advice of our – of our legal advisor. I’m not – I’m trying not to drop him in it too much, your Honour.

HER HONOUR: But I - - -

PLAINTIFF GOLDSMITH: Clearly - - -

HER HONOUR: I’ve got – but – well, I suppose the – what we know is that you were provided submissions at 8 o’clock. You saw them in the morning. You knew that a limitation period was an issue that you wished to address. You raised that with your counsel. Your counsel – did you raise that – should you be seeking an adjournment?

PLAINTIFF GOLDSMITH: No, I simply asked him what we should do about it.

HER HONOUR: And he didn’t give you an answer?

PLAINTIFF GOLDSMITH: No, your Honour.

HER HONOUR: It didn’t concern him?

PLAINTIFF GOLDSMITH: I’m not – I – I don’t know whether it concerned him or - - -

HER HONOUR: And I’m - - -

PLAINTIFF GOLDSMITH: Apparently, it didn’t concern him.

HER HONOUR: And I’m cautiously asking these questions because there’s no evidence before me from your legal representative about the reasons why he didn’t ask for an adjournment or not. I mean, he was aware that there was an issue. The matter was going to be litigated that day. It proceeded. And Mr Upton – sorry – and Mr Upton didn’t address the issue of an – limitations at the hearing?

PLAINTIFF GOLDSMITH: No, your Honour.

HER HONOUR: Not – didn’t - - -

PLAINTIFF GOLDSMITH: Didn’t – said nothing about it. The – what – when the – the – part of the transcript that I’ve just shown you, when you asked Mr Chesterman whether it had expired, and Mr Chesterman said, “Yes, it had just expired - - -”

HER HONOUR: Yes, yes.

PLAINTIFF GOLDSMITH: Mr Upton said – made no submission at that point. Now, that was more than halfway through the hearing.

HER HONOUR: Yes.

PLAINTIFF GOLDSMITH: And Mr Upton may well have thought that the time for saying anything about a – an adjournment had well and truly - - -

HER HONOUR: Well - - -

PLAINTIFF GOLDSMITH: - - - passed.”

  1. [135]
    I should note that no evidence has been produced by the applicants about the conduct of their counsel.
  2. [136]
    Parties are generally bound by the way they conduct their cases. As the High Court observed in Metwally v University of Wollongong:[42]

“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so…”

  1. [137]
    In this case, the applicants did have the opportunity to make submissions in relation to the issues raised against them by the respondent. Indeed, they did so.
  2. [138]
    The applicants’ counsel engaged with the issues raised by the respondent in relation to the applicants’ misrepresentations before Daubney J, i.e.: 
    1. the Goldtip issue; and  
    2. that the applicants’ case was entirely documentary.
  3. [139]
    In relation to the Goldtip issue, counsel for the applicants stated at the original hearing:

HER HONOUR:   And also there’s the issue about whether Gold Tip should be reregistered or not.

MR UPTON:   Well, I think I’ll address you on that whilst I’m – whilst you raise it, your Honour.  If I take you to Mr Goldsmith’s affidavit at – it’s pagination 8?

HER HONOUR:   Which one?

MR UPTON:   Sorry.  The one filed with leave today.  Sorry.

HER HONOUR:   The one filed with leave today.  Can I have that one, Sophie?  Yes.  Affidavit.  Yes.

MR UPTON:   Now, if you – if you went to paragraph 60 and 61, the paragraphs my friend has drawn your attention to.

HER HONOUR:   Yes.  I’ve got it.  Yes, 60, 61. 

MR UPTON:   What I say – sorry, your Honour, I’ll let you      

HER HONOUR:   Yes. 

MR UPTON:   What I say is happening there is not some attempt to obscure the fact that Gold Tip needed to be reregistered, but it’s an attempt to say if – if you look at paragraph 60 – or arguably if there’s a proceeding under the Trade Practices Act for misleading and deceptive conduct, then there might be a challenge to the fact – the assignment in the sense that the rights to bring that proceeding to a person can’t be assigned.  But then what Mr Goldsmith then goes on is – to say – to say to overcome that issue – he’s not saying we’re going to do that.  He says, “To overcome that issue Gold Tip will need to be reinstated.”  Now, at that point in time there was no challenge to – or there’s no allegation that the assignment was ineffective under the Trade Practices Act, because of the fact that the misleading and deceptive claim was personal.  “Allegation has never been put” – that’s Mr Goldsmith just musing as to a potential issue.  He’s informing the court.  He’s not trying to deceive the court.  He’s saying arguably this could be an issue, and if they do – and if they did raise, this is what we’ll do with it.  So he’s not saying Gold Tip needs to be reregistered.  Its claim in the Supreme Court, as presently pleaded, is both – there are two claims, both under the Retail Shop Leases Act and, it can be inferred, also under Commonwealth analogues like the TPA, for misleading and deceptive conduct but also for unconscionable conduct.  So I don’t know if you want hear me more about the merits of the claim or not, but all I’m trying to expose there is that it was never the case that Mr Goldtip was saying we have to reinstate – we have to reinstate Gold Tip in order to be successful in our Supreme Court claim.  He was saying if there’s a challenge to the assignment, in the sense that the claim was personal to Gold Tip, then Gold Tip would have to be reinstated.  It’s an explanation of the course of action he might take if that issue was raised.  It’s not saying that it has to happen and, indeed ‑ ‑ ‑       

HER HONOUR:   I’m just looking at his submissions:

As a result of the decision of the Court of Appeal we fear there may be a reason for the whole matter to be struck out, notwithstanding the fact that a pleading’s less than perfect.  There could potentially be a problem with the assignment, because misleading and deceptive conduct on the Trade Practices Act is not assignable.  If the defendant raises that matter, it could be struck out, and the way to overcome that is to reinstate the Gold Tip – the company.

So that’s what they’re saying.

MR UPTON:   So he’s saying if that eventuality comes to pass, this is what we could do, but there’s a couple points to make.  Firstly, the claims in the Supreme Court presently can reasonably be inferred to be made under the Retail Shop Leases Act and the Trade Practices Act or the ACL – the consumer law.”

  1. [140]
    In relation to the assertion made by the applicants before Daubney J that their case was documentary, the applicants’ counsel stated at the original hearing:

“MR UPTON:   Whilst I’m on my feet, your Honour, I should also address the issue about the prejudice flowing from the submission that the case was entirely documentary.  I accept that may have gilded the lily, but in my submission it wasn’t materially misleading, and I’m going to tell you why.  Could I ask you just to take up the pleading.

…

MR UPTON:   You’ll see at – starting at paragraph 9 on page the parties enter into some negotiations about a second lease.  There’s a – paragraph 12 there’s a first-year lease proposal.  That was in – that was in writing.  At paragraph 13 there was Mr Goldtip’s – Mr Goldsmith’s response or Gold Tip’s response.  That was in writing.  At paragraph 16 there was a second new lease proposal.  There was a response to that, which I’m instructed was in writing.  Then at paragraph 26A – the capital R in the particulars – it’s 26A in the material fact.  The capital R representation was – in the particulars was repeated between March and December 2010.  It was repeated in writing on the 3rd of December 2010.  The lease, obviously, was in writing.  The termination of the lease was in writing.  The issues related to quantum will be expert questions.  So, substantially, all of the proceeding could be present in writing.

HER HONOUR:   So you don’t need paragraph 18?

MR UPTON:   Well, yeah.  That will have – there will have to be evidence about that.

HER HONOUR:   Well, that’s ‑ ‑ ‑

MR UPTON:   But – but ‑ ‑ ‑

HER HONOUR:   That’s not in writing.

MR UPTON:   It’s not in writing.  No.  And I can see that by saying that it was entirely ‑ ‑ ‑

HER HONOUR:   That’s the gilding the lily bit.

MR UPTON:   That’s the gilding the lily, but it was the – the material – the material facts – a number of the material facts are recorded in writing.

HER HONOUR:   And one – this material fact that is set out in paragraph 18 wasn’t?

MR UPTON:   That’s true.

HER HONOUR:   Okay.

MR UPTON:   But, in any event, if the effluxion of time caused diminution in memories and that, AMP says, is to their prejudice, in my submission, again, AMP needs to bear the dominant responsibility for the delay, in my submission, for continuing to press the allegation of outstanding.

HER HONOUR:   It wouldn’t have had to if you served your claim.

MR UPTON:   In my submission ‑ ‑ ‑

HER HONOUR:   If you – it – on your submission, it may have on the way that you chose to litigate this, which was not to serve it.

MR UPTON:   That’s right.

HER HONOUR:   Yes, but if you – on the rules, a claim will go stale unless it is served within 12 months unless there’s another good reason.  And I’m not too sure another good reason is that you choose to do it in your way rather than following the UCPR.

MR UPTON:   Well, to be fair to my clients, your Honour, I’ve reproduced that quote from Justice Daubney at page ‑ ‑ ‑

HER HONOUR:   Yes, you showed me that.

MR UPTON:   At page 3 of my written submissions.  And the conclusion he reached there – I’m just going to let you read it.  I’m not going to read it to you.

HER HONOUR:   Now, which one is this?  What paragraph?

MR UPTON:   Sorry, it’s paragraph 8(a)(ii).

HER HONOUR:   Eight-(a)-(ii).  Is this Justice Daubney?

MR UPTON:   Yes.

HER HONOUR:   Well, that – and that’s the point that I raised with Mr Chesterman that he’s asking me to come to a different view than Justice Daubney did.

MR UPTON:   He is asking you to do that.  Yes, and he frankly conceded that.  And he – to be fair to Mr Chesterman, he then went on to explain what the new material was ‑ ‑ ‑

HER HONOUR:   Yes.

MR UPTON:   ‑ ‑ ‑ that caused him to come to that conclusion – or would allow you to come to that conclusion.  It’s just that, in my submission, I don’t characterise things in quite the same way, and I think the new material that’s been put on about the alleged material misrepresentations or omissions that were made to Justice Daubney don’t quite cast the new fresh light on matters, like as is required to do in order to discharge the order, or set aside the orders. 

HER HONOUR:   I understand what your submission is.”

  1. [141]
    In relation to the time limitation issue, the applicants’ counsel did not challenge the respondent’s counsel submission that the period had expired. Indeed, as I have already set out, he embraced it by submitting that the applicants would suffer irreparable damage if they were shut out from pursuing a maintainable cause of action. 
  2. [142]
    It cannot be said that the applicants have not been heard on these matters. It is too late for the applicants to now say that further submissions should have been made by their counsel. Especially considering that no application for an adjournment was made and at no time was any complaint made by the applicants’ counsel about the conduct of the respondent at the original hearing. 
  3. [143]
    The applicants did not appeal my decision, and this is not the forum to ventilate such a complaint. The applicants have not shown that, without accident or fault on their part, they have not been heard on a relevant matter.
  4. [144]
    If the applicants had further material or submissions that they wished to place before the court in response to the respondent’s submissions, then an adjournment should have been sought. They did not do so. The applicants’ complaints have no bases.  

Conclusion

  1. [145]
    The applicants have not satisfied me that there is any basis for my orders issued on 30 May 2022 to be set aside. Their application is dismissed.
  2. [146]
    The applicants have been wholly unsuccessful.  I will give the parties an opportunity to consider these reasons before they are required to file and serve short written submissions on the question of costs. I encourage the parties to agree on an order for costs. 
  3. [147]
    However, if this cannot occur, the parties should, within fourteen days, agree on a timetable for the exchange of written submissions and advise the court accordingly.
  4. [148]
    If it is appropriate, I will then deal with the question of costs on the papers, unless either party requests a hearing. In order to facilitate that process, I will adjourn the question of costs to a date to be fixed.

 Orders

  1. The application is dismissed.
  2. The question of costs is adjourned.

Footnotes

[1] I note that Mr Goldsmith has a law degree and represented both applicants as a self-represented litigant in the application before Daubney J.

At the original hearing before me, and before Crowley J, the applicants were represented by counsel. Indeed, the same counsel at both applications. 

However, no counsel appeared for the applicants on this present application which spanned three days.

On the first two days, Mr Goldsmith appeared as a self-represented litigant and Ms Tippett allowed him to speak on her behalf.  On the third day, Mr Goldsmith appeared as a solicitor employed by Blue Legal for both applicants.

[2]As can be seen, depending on the proceeding, Mr Goldsmith and Ms Tippett have been plaintiffs, appellants, applicants and respondents. In these reasons, I will refer to Mr Goldsmith and Ms Tippett as the applicants and AMP Life as the respondent.

[3]Goldsmith & Anor v AMP Life Ltd [2020] QDC 140 at [227]–[230].

[4]The applicants in these proceedings.

[5]Goldsmith & Anor v AMP Life Ltd (2021) 7 QR 113.

[6]The applicants in these proceedings.

[7][2018] QSC 1.

[8](2021) 7 QR 726.

[9]The application was filed on 29 April 2022 with an amended application being filed on 25 May 2022.

[10]The applicants in these proceedings.

[11]Goldsmith & Anor v AMP Life Ltd [2023] QSC 15 at [64]–[65].

[12]The respondent in these proceedings.

[13]Goldsmith & Anor v AMP Life Ltd [2023] QSC 15 at [72].

[14]Goldsmith & Anor v AMP Life Ltd [2023] QSC 15 at [74]–[75].

[15]Goldsmith & Anor v AMP Life Ltd [2023] QSC 15 at [103]–[117].

[16]IVI Pty Ltd v Baycrown Pty Ltd [2007] 1 Qd R 428 at [13]–[14].

[17][2007] QCA 393.

[18]Rockett v The Proprietors – “The Sands” Building Units Plan No. 82 [2002] 1 Qd R 307 at [15].

[19]Limitation of Actions Act 1974 (Qld) s 10 (3) and Land Titles Act 1994 (Qld) s 176.

[20][2002] 1 Qd R 307.

[21]AMA v CDK [2009] QSC 287 at [36].

[22][2007] 1 Qd R 428.

[23]IVI Pty Ltd v Baycrown Pty Ltd [2007] 1 Qd R 428 at [16]–[18].

[24]  IVI Pty Ltd v Baycrown Pty Ltd [2007] 1 Qd R 428, [13] (Jerrard JA); see also AMA v CDK [2009] QSC 287, [36] (Applegarth J).

[25]Commonwealth Bank of Australia Ltd v Quade (1991) 178 CLR 134, 141.

[26]Cf Commonwealth Bank of Australia Ltd v Quade (1991) 178 CLR 134, 142–143.

[27]Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.

[28](1993) 176 CLR 300.

[29][2002] NSWSC 921.

[30]Wentworth v Rogers [2002] NSWSC 921 at [9].

[31][1999] NSWSC 638; see also Brew v Followmont Transport Pty Ltd [2005] 2 Qd R 354.

[32]Twenty-First Australia Inc v Shade (NSWSC, Young J, 31 July 1998, unreported).

[33]Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No.2) (1998) 29 ACSR 290.

[34]AB v Federal Commissioner of Taxation (1998) 157 ALR 510.

[35]Farrow Finance Company Ltd (in liquidation) v Farrow Properties Pty Ltd (in liquidation) & Ors [1999] 1 VR 584.

[36]Hoad v Nationwide News Pty Ltd (1997) 37 IPR 407.

[37]Smits v Buckworth (No.2) (NSWSC, Young J, 14 November 1997, unreported).

[38]Pittalis v Sherefettin [1986] 1 QB 868.

[39]Wentworth v Wentworth [1999] NSWSC 638 at [18].

[40](2021) 7 QR 566.

[41]Chan v Goldenwater LDL Pty Ltd (2021) 7 QR 566 at [11].

[42]Metwally v University of Wollongong (1985) 60 ALR 68, 71 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ). 

Close

Editorial Notes

  • Published Case Name:

    Goldsmith & Tippett v Resolution Life Australasia Ltd (formerly AMP Life Ltd)

  • Shortened Case Name:

    Goldsmith v Resolution Life Australasia Ltd

  • MNC:

    [2024] QSC 17

  • Court:

    QSC

  • Judge(s):

    Wilson J

  • Date:

    23 Feb 2024

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2023] QSC 1517 Feb 2023Claim permanently stayed: Crowley J.
Primary Judgment[2024] QSC 1723 Feb 2024Application to have orders set aside dismissed: Wilson J.
QCA Interlocutory Judgment[2024] QCA 4803 Apr 2024Application for appeals to be heard together: Morrison JA.
Appeal Determined (QCA)CA 3379/23, CA 3320/24 (No citation)27 Aug 2024Orders made dismissing appeals: Mullins P, Bond and Dalton JJA.
Appeal Determined (QCA)[2024] QCA 18401 Oct 2024Reasons for orders of 27 Aug 2024: Dalton JA (Mullins P and Bond JA agreeing).
Application for Special Leave (HCA)File Number: B67/202427 Nov 2024Application for special leave to appeal filed.
Application for Special Leave (HCA)File Number: B68/202428 Nov 2024Application for special leave to appeal filed.
Special Leave Refused (HCA)[2025] HCADisp 4906 Mar 2025Special leave to appeal refused: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ.
Special Leave Refused (HCA)[2025] HCADisp 5006 Mar 2025Special leave to appeal refused: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

Case NameFull CitationFrequency
A B v Federal Commissioner of Taxation (1998) 157 ALR 510
1 citation
Jump To
Cite 1 - (1998) 157 ALR 510
AMA v CDK [2009] QSC 287
3 citations
Jump To
Cite 1 - [2009] QSC 287
Cite 2 - [2009] QSC 287
Cite 3 - [2009] QSC 287
Anthony v Rockett [1999] QCA 434
1 citation
Jump To
Cite 1 - [1999] QCA 434
Autodesk Inc v Dyason (1993) 176 CLR 300
2 citations
Jump To
Cite 1 - (1993) 176 CLR 300
Cite 2 - (1993) 176 CLR 300
Autodesk Inc v Dyason [No 2] [1993] HCA 6
1 citation
Jump To
Cite 1 - [1993] HCA 6
Brew v Followmont Transport Pty Ltd[2005] 2 Qd R 354; [2005] QSC 30
1 citation
Jump To
Cite 1 - [2005] 2 Qd R 354
Chan v Goldenwater LDL Pty Ltd(2021) 7 QR 566; [2021] QCA 87
4 citations
Jump To
Cite 1 - [2021] QCA 87
Cite 2 - (2021) 7 QR 566
Cite 3 - (2021) 7 QR 566
Cite 4 - (2021) 7 QR 566
Commonwealth Bank of Australia Ltd v Quade (1991) 178 CLR 134
3 citations
Jump To
Cite 1 - (1991) 178 CLR 134
Cite 2 - (1991) 178 CLR 134
Cite 3 - (1991) 178 CLR 134
Farrow Finance Company Ltd (in liquidation) v Farrow Properties Pty Ltd (in liquidation) & Ors [1999] 1 VR 584
1 citation
Jump To
Cite 1 - [1999] 1 VR 584
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (1998) 29 ACSR 290
1 citation
Jump To
Cite 1 - (1998) 29 ACSR 290
Goldsmith v AMP Life Limited(2021) 7 QR 113; [2021] QCA 20
3 citations
Jump To
Cite 1 - [2021] QCA 20
Cite 2 - (2021) 7 QR 113
Cite 3 - (2021) 7 QR 113
Goldsmith v AMP Life Ltd [2020] QDC 140
2 citations
Jump To
Cite 1 - [2020] QDC 140
Cite 2 - [2020] QDC 140
Goldsmith v AMP Life Ltd [2023] QSC 15
5 citations
Jump To
Cite 1 - [2023] QSC 15
Cite 2 - [2023] QSC 15
Cite 3 - [2023] QSC 15
Cite 4 - [2023] QSC 15
Cite 5 - [2023] QSC 15
Harrison v Schipp (2002) 54 NSWLR 612
1 citation
Jump To
Cite 1 - (2002) 54 NSWLR 612
Hoad v Nationwide News (1997) 37 IPR 407
1 citation
Jump To
Cite 1 - (1997) 37 IPR 407
IVI Pty Ltd v Baycrown Pty Ltd[2007] 1 Qd R 428; [2006] QCA 461
6 citations
Jump To
Cite 1 - [2006] QCA 461
Cite 2 - [2007] 1 Qd R 428
Cite 3 - [2007] 1 Qd R 428
Cite 4 - [2007] 1 Qd R 428
Cite 5 - [2007] 1 Qd R 428
Cite 6 - [2007] 1 Qd R 428
KGK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1985] 2 Qd R 13
2 citations
Jump To
Cite 1 - [1985] 2 Qd R 13
Cite 2 - [1985] 2 Qd R 13
King v Gunthorpe [2018] QSC 1
1 citation
Jump To
Cite 1 - [2018] QSC 1
Mbuzi v Favell [2007] QCA 393
2 citations
Jump To
Cite 1 - [2007] QCA 393
Cite 2 - [2007] QCA 393
McIntosh v Maitland [2016] QSC 203
1 citation
Jump To
Cite 1 - [2016] QSC 203
Metwally v University of Wollongong (1985) 60 ALR 68
2 citations
Jump To
Cite 1 - (1985) 60 ALR 68
Cite 2 - (1985) 60 ALR 68
Murdoch Lawyers Pty Ltd v Gouldson(2021) 7 QR 726; [2021] QSC 96
1 citation
Jump To
Cite 1 - (2021) 7 QR 726
Pittalis v Sherefettin (1986) 1 QB 868
1 citation
Jump To
Cite 1 - (1986) 1 QB 868
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
1 citation
Jump To
Cite 1 - (1981) 147 CLR 589
Rankin v Agen Biomedical Ltd [1999] 2 Qd R 435
1 citation
Jump To
Cite 1 - [1999] 2 Qd R 435
Rockett v The Proprietors of “The Sands” BUP 82[2002] 1 Qd R 307; [2001] QCA 99
5 citations
Jump To
Cite 1 - [2001] QCA 99
Cite 2 - [2002] 1 Qd R 307
Cite 3 - [2002] 1 Qd R 307
Cite 4 - [2002] 1 Qd R 307
Cite 5 - [2002] 1 Qd R 307
Stubberfield v Brisbane City Council [1996] QCA 184
1 citation
Jump To
Cite 1 - [1996] QCA 184
Wallace v Bendigo and Adelaide Bank Limited [2020] QCA 122
3 citations
Jump To
Cite 1 - [2020] QCA 122
Cite 2 - [2020] QCA 122
Cite 3 - [2020] QCA 122
Wentworth v Rogers (2002) NSWSC 921
3 citations
Jump To
Cite 1 - (2002) NSWSC 921
Cite 2 - (2002) NSWSC 921
Cite 3 - (2002) NSWSC 921
Wentworth v Wentworth (1999) NSWSC 638
3 citations
Jump To
Cite 1 - (1999) NSWSC 638
Cite 2 - (1999) NSWSC 638
Cite 3 - (1999) NSWSC 638
Woods v Sheriff of Queensland (1895) 6 Q.L.J. 163
1 citation
Jump To
Cite 1 - (1895) 6 Q.L.J. 163

Cases Citing

Case NameFull CitationFrequency
Goldsmith v AMP Life Ltd [2024] QCA 1841 citation
Goldsmith v Resolution Life Australasia Ltd [2024] QCA 482 citations
McDermott v McDermott [No 3] [2025] QSC 992 citations
1

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