Dooney, Re [1993] QSC 36 [1993] 2 Qd R 362

.Se.. 3/03b IN THE SUPREME COURT OF QUEENSLAND o.s. No. 1125 of 1992 Brisbane The Hon. Mr. Justice K.W. Ryan [David Haddo Reynolds Teape & Others] IN THE MATTER OF: a Judgment obtained by DAVID HADDO REYNOLDS TEAPE against JOHN PATRICK DOONEY in the High Court of New Zealand and dated the 19th day of November 1991 JUDGMENT - RYAN J. Judgment delivered 26/02/1993 Counsel: P. Hastie for the Applicant A. Ryan for the Respondent Solicitors: · Shakespeare Haney for the Applicant Lees Marshal! & Warnick for the Respondent Hearing Date: 15 February 1993 -- 1 of 10 -- IN THE SUPREME COURT OF QUEENSLAND o.s. No. 1125 of 1992 Brisbane The Hon. Mr. Justice K.W. Ryan [David Haddo Reynolds Teape & Others] IN THE MATTER OF: a Judgment obtained by DAVID HADDO REYNOLDS TEAPE against JOHN PATRICK DOONEY in the High Court of New Zealand and dated the 19th day of November 1991 JUDGMENT - RYAN J. Judgment delivered 26/02/1993 Application has been made that the registration of the judgment obtained by David Haddo Reynolds Teape against John Patrick Dooney in the High Court of New Zealand on 19 November 1991 be set aside, or alternatively that the issue of execution on the judgment be suspended. On 17 November 1992, Lee J. ordered that the judgment be registered, the amount of judgment to be registered being $A242,026.70. He further ordered that the applicant prepare a notice in writing for the registration of the foreign judgment, that the applicant cause the notice to be served personally on -- 2 of 10 -- 2 the judgment debtor within a reasonable time after registration, that the judgment debtor be given a period of 14 days from service of the notice within which to apply to this Court to set aside the registration, and that there be no execution of the registered judgment prior to the expiration of the 14 day period. It is deposed by Mr. Winger of Auckland, New Zealand, a barrister and solicitor of the High Court of New Zealand, that in or about May 1991 his firm received instructions to act for Mr. Dooney in respect of the application by Mr. Teape seeking summary judgment in the High Court at Auckland. He deposes that he prepared an affidavit in opposition to Teape's application for summary judgment which was forwarded to Dooney in Australia and ultimately returned to him. Teape filed several affidavits in reply which Mr. Winger forwarded to Dooney in Australia to obtain his comment and further instructions. He did not hear back from Dooney in relation to these affidavits, as attempts to contact him proved fruitless. The application was initially due for hearing on 10 July 1991. Mr. Winger had succeeded in having the proceedings adjourned, but an application for an adjournment on 19 November 1991 was unsuccessful. Mr. Winger was granted leave to withdraw, and a decision was given in favour of Teape on that day. It appears from the reasons for judgment that a vi tal matter in persuading the learned Master that the defendant had no arguable defence was a written acknowledgment signed by him on 22 July 1988 which was deposed to in an affidavit by Ms. Teape on 26 July 1991 . It was in respect of this affidavit that -- 3 of 10 -- 3 Mr. Winger had unsuccessfully sought to obtain Dooney's instructions. Mr. Winger did not forward a copy of the judgment to Dooney, as he did not have a current address for him. On 29 January 1993 Dooney contacted Mr. Winger and told him that he had first received Notice of Entry of Judgment in November 1991 a few days earlier. Mr. Winger deposes that he believes Dooney has grounds to apply in New Zealand to set aside the judgment, or at least to apply for a stay of execution pending the hearing and determination of Dooney's counterclaim against Teape and Mrs. Teape. Objection was taken to this statement on the ground that it was swearing the issue, but I admit it as evidence by a foreign legal practitioner of practice in his jurisdiction. He states that such an application could be heard and determined within six weeks of the documentation being filed and served (subject to cooperation from the judgment creditor). Mr. Dooney deposes that after signing and returning an affidavit which his solicitors had prepared on his behalf in the summary judgment application, he did not have any further contact from them, and as he had been informed by them that the matter would go to trial he expected to be contacted some time in the future regarding a hearing date. In July or August 1991 he lost his office space and contact number when the firm from which he was subletting his office ceased trading. It was not until he was served with the notice of registration of judgment on 26 January 1993 that the action was again brought to his attention. He states that he has given instructions to -- 4 of 10 -- 4 Mr. Winger's firm to have the judgment set aside in the High Court of New Zealand. In cross-examination on his affidavit, Mr. Dooney agreed that until September 1991 he was in contact with Mr. Winger, and he knew that there was an application for summary judgment. He agreed that he could contact Mr. Winger to find out what was happening. He said that he had been led by Mr. Winger to believe that the matter would go to trial at some considerable time in the future. He was unable to suggest any reason why Mr. Winger would not be able to contact him if he used reasonable efforts to do so. Mr. Bogliato, the solicitor for the plaintiff in the proceedings brought by the plaintiff in New Zealand, deposes that on 10 July 1991 the summary judgment proceedings were called at the High Court, Auckland. They were adjourned to enable the plaintiff to consider an affidavit by the defendant on 1 July 1991. Affidavits in reply were filed on behalf of the plaintiff. The proceedings were adjourned to 21 August 1991. Eventually they were adjourned to 8 October for hearing as a firm fixture for defended summary judgment proceeding. On 11 September 1991 a second affidavit was sworn by the defendant and received by Mr. Bogliato. On 7 October 1991 the defendant's solicitors wrote to the plaintiff's solicitors advising that a further matter of defence would be raised. On 8 October 1991, orders were made by a Master, including an order that the defendant was to file an amended Notice of Opposition within 7 days. This was filed on 9 October 1991 on behalf of the defendant by his solic~tors. -- 5 of 10 -- 5 Mr. Bogliato deposes that at the hearing on 19 November, Mr. Winger advised the Master that Mr. Dooney was aware of the date of hearing for that day. He states that during the various appearances at the High Court at no stage did Mr. Winger advise the Court that he was having difficulty contacting his client. Mr. Bogliato deposes to his belief that it will be difficult for the defendant to have the judgment set aside and gives reasons for this belief. He does not believe that any application to set aside judgment in New Zealand could be determined within six weeks given the level of opposition which will be mounted by the plaintiff. It would take several months for any application brought by Mr. Dooney to set aside the judgment to be put before a Master. He states that to the best of his knowledge and belief Mr. Dooney has not made any application in New Zealand for a stay of execution of the judgment, or an application for special leave to appeal the decision of the Master of 19 November 1991. The application is brought under s.7(1)(a) and (c) of the Reciprocal Enforcement of Judgments Act 1959-1981. By s. 7 ( 1) (a), registration of the judgment shall be set aside if the Supreme Court is satisfied that the judgment is not a judgment to which part II of the Act applies or was registered in contravention of the provisions of the Act. The judgments to which part II of the Act applies are set out in s.4(3) of the Act. The judgment must, in the first place, be final and conclusive as between the parties thereto. Section 4(4) provides that for the purposes of this section a judgment shall be deemed to be final and conclusive -- 6 of 10 -- 6 notwithstanding that an appeal may be pending against it, or that it may still be subject to appeal, in the Courts of the country of the original Court. Section 3 defines "appeal" as including any proceedings by way of discharging or setting aside a judgment or an application for a new trial or a stay of execution. It was submitted for the applicant that the judgment in this case was not final. It was pointed out that in Barclays Bank Ltd. v. Piacun (1984) 2 Qd.R. 476 at p.478 Connolly J. had said that he was content to assume that a default judgment may be registered under the Act as being final and conclusive so long as it stands, but he had not decided that this was correct. I was referred to a statement in Nouvion v. Freeman (1889) App. Cas. at p. 13 that a final decree which it is sought to enforce in the jurisdiction need not be final in the sense that it cannot be made the subject of appeal in a higher court, but it must be final and unalterable in the Court which pronounced it. But the decree which in that case was considered not to finally and conclusively establish the existence of a debt was one made in proceedings in which only certain defences could be set up; it was only in "plenary" proceedings that all defences and the whole merits of the matter might be gone into. That is not the position in the case of a summary judgment. In Ainslie v. Ainslie (1927) 390 CLR 381 at p. 390, Isaacs J. said that "the true rule is to see whether or not the Legislature has by its enactment left the order entirely floating, so to speak, as a determination enforceable only as expressly provided and in the course of that enforcement subject to review, or whether the order has been given the effect of -- 7 of 10 -- 7 finality unless subsequently altered". A consideration of s.4(4) of the Act and the definition of appeal makes it clear in my opinion that a default judgment is to be considered final and conclusive. Section 7(1)(c) of the Act provides that the registration of the judgment shall be set aside if the Supreme Court is satisfied that the judgment debtor, being the defendant in the proceedings in the original Court, did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original Court) receive notice of these proceedings in sufficient time to enable him to defend the proceedings and did not appear. In Brockley Cabinet Co. Ltd. v. Pears (1972) 20 FLR 333 at p. 337 Fox J. said:- "It seems to me that what is being referred to is theaction as a whole. Put another way, the proceedings referred to are those instituted by the commencement of the action ... the intention of the legislation is that a defendant who has not had knowledge in sufficient time of the fact that the plaintiff has instituted an action for principal relief, and has notentered an appearance, should be able to have registration of the judgment in the foreign court set aside." If that interpretation of the provisions is correct, the application to set aside registration must fail on this ground. But in Barclays Bank Ltd. v. Piacun, Macrossan J. with whose judgment Douglas J. agreed, said at p. 483 that the reference in s.7(1)(c) appears to be to cases where during the course of an original suit but prior to entry of judgment a debtor did not receive notice in time to enable him to defend and he did not appear. I consider that this view is correct and that I should follow it. The question then is whether the applicant has satisfied me that he did not receive notice of the proceedings -- 8 of 10 -- 8 in sufficient time to enable him to defend the proceeding and did not appear. In the affidavit of Mr. Bogliato it is deposed that Mr. Winger appeared for the applicant, that he advised the Master that Mr. Dooney was aware of the date of hearing for that day, and that Mr. Winger sought leave to withdraw which was granted. Mr. Winger deposes that his application for an adjournment of the final fixture on 19 November 1991 was to no avail, as a result of which he indicated to the Court that he could not adequately argue the defendant's defences to the summary judgment application and so sought leave to withdraw from the proceedings. According to the Master's judgment Mr. Winger indicated that he had not been able to obtain further instructions from his client although he had filed the amended notice of opposition and he sought leave to withdraw~ He granted this. I consider that this evidence indicates that the applicant received notice by his solicitors of the proceedings in sufficient time to enable him to defend the proceedings, and that he appeared by his solicitor. If he failed to keep in contact with his solicitors knowing that proceedings were being instituted, or to enable them to contact him, he cannot be heard to say that the judgment must be set aside under s.7(1)(c). Section 8(1) of the Act empowers the Court to set aside the registration of a judgment or adjourn the application to set aside the registration if the applicant satisfies the Court either that an appeal is pending or that he is entitled and intends to appeal. It appears that no appeal is pending, but it is deposed that the applicant intends to apply in New Zealand to -- 9 of 10 -- 9 have the judgment set aside. It is deposed by Mr. Winger that the judgment obtained by Teape would be considered in New Zealand as being one where the defendant is entitled to apply to set it aside provided the defendant: (a) Explain the circumstances relating to the non-appearance; (b) Satisfy the Court that there is a defence to the claim; (c) Satisfy the Court the judgment creditor would not suffer irreparable injury if the judgment were to be set aside. The question for my consideration is not whether the judgment of the Master is likely to be set aside by a New Zealand Court, but whether I should exercise the discretion conferred on me by s.8 to set aside the registration or adjourn the application to set aside the registration. Nothing has been placed before me to indicate that the applicant has a defence on the merits, or that if the judgment is registered but subsequently set aside the respondent would be unable or unlikely to repay the sum awarded to it. In the circumstances, I refuse to exercise the discretion given by s.8. I refuse also to order that the issue of execution on the judgment be suspended. I dismiss the application, and order that the applicant for orders before me, namely John Patrick Dooney, pay the costs of the respondent David Haddo Reynolds Teape of and incidental to the application to be taxed. -- 10 of 10 --