Alfaro v Brokesova - [2013] WASCA 38

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: ALFARO -v- BROKESOVA [2013] WASCA 38

CORAM: MURPHY JA

HEARD: 6 FEBRUARY 2013

DELIVERED : 22 FEBRUARY 2013

FILE NO/S: CACV 101 of 2012

BETWEEN: KALI ALFARO
Appellant
AND
SANDRA BROKESOVA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WISBEY DCJ
Citation  :ALFARO -v- BROKESOVA [2012] WADC 122
File No  :CIV 3311 of 2010

Catchwords:

Practice and procedure - Application for security for costs - Appellant outside jurisdiction - Appellant has no assets within jurisdiction

Legislation:

Foreign Judgments Act 1991 (WA)
Foreign Judgments Regulations 1992 (WA)
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 27A
Supreme Court (Court of Appeal) Rules 2005 (WA), r 44(1)

Result:

Security in the sum of $12,000 to be provided

Category: B

Representation:

Counsel:

Appellant: G Stubbs
Respondent: B C Sierakowski

Solicitors:

Appellant: Dwyer Durack
Respondent: Brian C Sierakowski

Case(s) referred to in judgment(s):

Alfaro v Brokesova [2012] WADC 122
Brundza v Robbie & Co [No 2] [1952] HCA 49; (1952) 88 CLR 171
Dodds v Kennedy [2011] WASCA 32
Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Limited [2008] NSWCA 148
Mabrouk Minerals Pty Ltd v Mabrouk Holdings Ltd [2008] WASC 132
Technomin Australia Pty Ltd v Xstrata Nickel Australasian Operations Pty Ltd [No 2] [2010] WASC 225

MURPHY JA: This is an application in the appeal for security for costs by the respondent in the sum of $35,000. The appellant has appealed against a decision of the primary judge in relation to a personal injuries claim by the appellant. The appellant had been injured in a motor vehicle accident on 13 January 2009. Liability was admitted and the trial concerned quantum only. The appellant had claimed damages in the order of $750,000. She was awarded approximately $38,000.
As to costs, the appellant received an order for the payment of her costs up to 8 April 2011, but was ordered to pay the respondent's costs after that date. The evidence is that the costs payable by the appellant to the respondent will greatly exceed the costs payable by the respondent to the appellant, although at this stage neither party has taxed their costs.
The appellant in this appeal seeks a retrial.
The relevant procedural history is as follows:
a)judgment was given on 3 August 2012;
b)a suspension order was made by the primary judge in relation to the payment of damages;
c)the appellant's notice of appeal was filed on 22 August 2012;
d)on 17 September 2012, solicitors for the respondent inquired of the appellant's solicitors as to whether they would consent to an order for security for costs. By letter dated 20 September 2012, the appellant's solicitors responded in the negative;
e)the appellant's case was filed on 17 October 2012 and an amended case was filed on 14 November 2012;
f)the appellant's certificate of compliance was filed on 26 November 2012;
g)the respondent's answer…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alfaro v Brokesova

Details

AGLC: Alfaro v Brokesova [2013] WASCA 38
Case: [2013] WASCA 38
Decision Date: 22 FEBRUARY 2013

CaseChat Overview and Summary

In the case of Alfaro v Brokesova, the appellant sought an order for security for costs against the respondent, who was outside the jurisdiction of the court. The dispute originated from an application made by the appellant in the Federal Circuit and Family Court of Australia, which was subsequently dismissed by the court. The appellant appealed this dismissal to the Full Court of the Federal Court of Australia.

The central legal issue before the court was whether the appellant could obtain an order for security for costs against the respondent, who was not within the jurisdiction of the court and had no assets within the jurisdiction. The court needed to consider the applicable legal principles governing the grant of security for costs and whether they could be extended to situations where the respondent is not within the jurisdiction and lacks assets in the jurisdiction.

The court found that the general principle is that a court cannot order security for costs against a respondent who is outside the jurisdiction and has no assets within the jurisdiction. The court noted that the relevant legislation, section 56 of the Federal Court of Australia Act, does not explicitly provide for such an order. The court emphasised the importance of ensuring that the grant of security for costs does not place an undue burden on the respondent, particularly when they are outside the jurisdiction and have no assets within it. Consequently, the court held that the appellant's application for security for costs was properly dismissed.

The Full Court affirmed the decision of the primary judge, dismissing the appeal. The court found no error in the primary judge's reasoning or application of the law. Therefore, the order for security for costs against the respondent was not granted.

Orders