Cosgrove & Chevron Queensland Ltd v Jones [1998] QCA 176

[1998] QCA 176 COURT OF APPEAL DAVIES JA McPHERSON JA WILLIAMS J Appeal No 453 of 1998 JENNIFER MARGARET COSGROVE and Applicants CHEVRON QUEENSLAND LIMITED (First and Second Defendants) and DALLAS MIDGLEY JONES Respondent (Plaintiff) BRISBANE ..DATE 23/02/98 JUDGMENT -- 1 of 4 -- 230298 T5/JAP/20 M/T COA 22/98 2 JUDGMENT DAVIES JA: This is an application for an extension of time within which to appeal. The grounds of appeal, if an extension were granted, are in effect two. The first is that the judgment was obtained by fraud in that three of the witnesses for the plaintiff, the plaintiff himself, a man called Ian Robert Schultz and a woman called Carol Ann Sole gave deliberately false evidence and the alternative ground of appeal is that fresh evidence has been discovered which could not, with reasonable diligence, have been discovered before which would show that the apportionment against the defendant Chevron Queensland Limited was wrongly made. There is some evidence by affidavit and statutory declaration before us on behalf of the applicant which I should say at once is contradicted and that contradiction need not be resolved in this application. It is sufficient to say though, that if the evidence which in that form has been put before us were accepted, it is, in my view, arguable that the appeal should succeed. Prima facie therefore the application for an extension of time should be granted to do justice between the parties. The respondents say that the appeal would not affect judgment against the first defendant and that therefore there would be no basis for setting aside the apportionment as against the plaintiff and moreover it is said that the second defendant's insurer has agreed to indemnify the first defendant's insurer so that, for that purpose, the real question in the case is one only between the plaintiff and the first defendant, not between the plaintiff and the second defendant or between the -- 2 of 4 -- 230298 T5/JAP/20 M/T COA 22/98 3 JUDGMENT defendants. Whether or not that is strictly so as a matter of law, as a practical matter in my view the apportionment as against the plaintiff could be different if the facts are as asserted by the applicant before us today. Moreover, if those facts as asserted are correct, a fraud has been practised on this Court and justice in those circumstances requires that be corrected. It is submitted by Mr Hampson, on behalf of the respondent, that there has been delay and that conduct of the applicant has resulted in prejudice to the respondents to these proceedings. Even if that is correct there are, in my view, two answers which are, at least at this stage, sufficient; one is the one to which I have referred and that is the element of fraud in this case and the other is the matter referred to by Mr Justice McPherson during the course of argument and that is that there is an alterative basis open to the applicant to set aside the judgment below. For those reasons, in my view, the application for an extension of time should be granted and I would grant the application and extend time sufficiently to allow this appeal to proceed. McPHERSON JA: I agree. WILLIAMS J: I agree. -- 3 of 4 -- 230298 T5/JAP/20 M/T COA 22/98 4 JUDGMENT ... DAVIES JA: Costs reserved. ----- -- 4 of 4 --