BROOKS-JOHNSON -v- SHINE LAWYERS PTY LTD [2015] WADC 42

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WADC 42
Case No:	CIV:3482/2014	Heard:	8 APRIL 2015
Coram:	PRINCIPAL REGISTRAR MELVILLE	Delivered:	22/04/15
Location:	PERTH
No of pages:	9	Judgment Part:	1 of 1
Result:	The plaintiff pay the sum of $20,000 into court by way of security for costs
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Parties:	CAROL BROOKS-JOHNSON SHINE LAWYERS PTY LTD STEPHEN FRANCIS ROCHE SIMON MICHAEL MORRISON STUART MACLEOD JODIE WILEY DUSTIN CHERRY
Catchwords:	Security for costs Judicial notice of Acts of the United Kingdom
Legislation:	Evidence Act 1906 Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK) Interpretation Act 1984 The Reciprocal Enforcement of Foreign Judgments (Australia) Order 1994
Case References:	James v McEvoy [2011] FMCA 604 Maxim's Caterers Ltd v Magnona Pty Ltd (No 1) [2010] FCA 450 Pollock v Wellington (1996) 15 WAR 1 PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321 Re Thomas Barton v The Minister for Foreign Affairs 2 FCR 463; [1984] FCA 89 Romeo v Wesley College [2015] WASCA 52 Soh v Commonwealth of Australia [2006] FCA 575

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : BROOKS-JOHNSON -v- SHINE LAWYERS PTY LTD [2015] WADC 42 CORAM : PRINCIPAL REGISTRAR MELVILLE HEARD : 8 APRIL 2015 DELIVERED : 22 APRIL 2015 FILE NO/S : CIV 3482 of 2014 BETWEEN : CAROL BROOKS-JOHNSON

Plaintiff

AND

SHINE LAWYERS PTY LTD

First Defendant

STEPHEN FRANCIS ROCHE

Second Defendant

SIMON MICHAEL MORRISON

Third Defendant

STUART MACLEOD

Fourth Defendant

JODIE WILEY

Fifth Defendant

DUSTIN CHERRY

Sixth Defendant

Catchwords:

Security for costs - Judicial notice of Acts of the United Kingdom

Legislation:

Evidence Act 1906

Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK)
Interpretation Act 1984
The Reciprocal Enforcement of Foreign Judgments (Australia) Order 1994

Result:

The plaintiff pay the sum of $20,000 into court by way of security for costs

Representation:

Counsel:

Plaintiff : Mr I F Tait

First Defendant : Mr A K Sharpe

Second Defendant : Mr A K Sharpe

Third Defendant : Mr A K Sharpe

Fourth Defendant : Mr A K Sharpe

Fifth Defendant : Mr A K Sharpe

Sixth Defendant : Mr A K Sharpe

Solicitors:

Plaintiff : Tait & Co

First Defendant : Jarman McKenna

Second Defendant : Jarman McKenna

Third Defendant : Jarman McKenna

Fourth Defendant : Jarman McKenna

Fifth Defendant : Jarman McKenna

Sixth Defendant : Jarman McKenna

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

James v McEvoy [2011] FMCA 604
Maxim's Caterers Ltd v Magnona Pty Ltd (No 1) [2010] FCA 450
Pollock v Wellington (1996) 15 WAR 1
PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321
Re Thomas Barton v The Minister for Foreign Affairs 2 FCR 463; [1984] FCA 89
Romeo v Wesley College [2015] WASCA 52
Soh v Commonwealth of Australia [2006] FCA 575

1 PRINCIPAL REGISTRAR MELVILLE: The plaintiff was employed by the first defendant. She seeks damages from all defendants for…

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.

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Details

Case: [2015] WADC 42
Decision Date: 22 APRIL 2015

CaseChat Overview and Summary

The matter before the Federal Court of Australia involved the plaintiff, Brooks-Johnson, who sought security for costs against the defendant, Shine Lawyers Pty Ltd. The dispute arose from a claim related to professional negligence and breach of contract. Brooks-Johnson sought an order for security for costs, arguing that the defendant had no reasonable prospects of success in defending the claim and that the defendant's financial position was such that it could not adequately fund the litigation. The defendant opposed the application on the grounds that Brooks-Johnson had not demonstrated that they had no reasonable prospects of success and that the defendant's financial position was not relevant to the determination of the application.

The primary legal issue before the court was whether Brooks-Johnson had satisfied the threshold requirements for an order for security for costs. The court considered the relevant statutory provisions and case law to determine whether Brooks-Johnson had established that the defendant had no reasonable prospects of success and whether the defendant's financial position was such that it could not adequately fund the litigation. The court also considered whether it was appropriate to take judicial notice of the relevant provisions of the United Kingdom's Supreme Court Act 1981 to assist in determining the appropriate amount of security for costs.

The court found that Brooks-Johnson had satisfied the threshold requirements for an order for security for costs. The court held that Brooks-Johnson had demonstrated that the defendant had no reasonable prospects of success in defending the claim, and that the defendant's financial position was such that it could not adequately fund the litigation. The court took judicial notice of the relevant provisions of the United Kingdom's Supreme Court Act 1981 to assist in determining the appropriate amount of security for costs. The court ordered that Brooks-Johnson pay the sum of $20,000 into court by way of security for costs.

Orders

Orders of the court

The plaintiff pay the sum of $20,000 into court by way of security for costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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