Mango Boulevard P/L v Spencer & Ors

[2010] QCA 207

Queensland Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Self-executing orders
3. › Whether self-executing order operates as judgment without further judicial step
4. › Whether order required separate judgment to be pronounced and filed
5. › Uniform Civil Procedure Rules 1999 (Qld), rr 660, 661(3)
1. Estoppel
2. › Res judicata and issue estoppel
3. › Judgment inter partes
4. › Whether judgment on counterclaim by reason of self-executing order gave rise to issue estoppel precluding defence
5. › Whether judgment not on the merits can found issue estoppel
1. Estoppel
2. › Res judicata and issue estoppel
3. › Whether summary judgment on abuse of process ground gave rise to res judicata or issue estoppel
4. › Whether judgment based on abuse of process constitutes judgment on the merits
1. Practice and Procedure
2. › Abuse of process
3. › Re-agitation of issues previously struck out
4. › Whether changed circumstances permitted defence to be raised
5. › Whether defendants' prior contumacious conduct precluded raising defence
6. › Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Quick Take

A self-executing order that provides for judgment upon the filing of an affidavit deposing to default operates as a judgment without any further judicial step. However, a judgment obtained through procedural default (whether by self-executing order or summary judgment for abuse of process) does not involve a determination on the merits and therefore does not give rise to issue estoppel precluding the raising of defences that were not determined on their merits. Where circumstances have materially changed — particularly where the cause of earlier vexation has been removed — a court may permit a party to raise a defence that was previously struck out, provided a fair trial remains possible.