Coleman v Greenland (No 2)

[2004] QCA 180

SUPREME COURT OF QUEENSLAND

CITATION:

Coleman v Greenland & Ors (No 2) [2004] QCA 180

PARTIES:

PATRICK JOHN COLEMAN
(respondent/applicant)
v
BRADLEY MICHAEL GREENLAND
(first applicant/first respondent)
PAUL GAYLEN DONALDSON
(second applicant/second respondent)
BRENDAN JASON POWER
(third applicant/third respondent)
CONSTABLE BRADLEY ADAM BARDELL
(fourth applicant/fourth respondent)
STATE OF QUEENSLAND
(fifth applicant/fifth respondent)

FILE NO/S:

Appeal No 2619 of 2004
SC No 809 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

Court of Appeal at Brisbane

DELIVERED ON:

28 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

McMurdo P, Williams JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application dismissed with costs to be assessed

CATCHWORDS:

PROCEDURE – COSTS – SECURITY FOR COSTS – OTHER MATTERS – where applicant appealed decision below – where Court of Appeal made order that applicant was to provide security for costs in his appeal – where orders made below stayed pending assessment of costs in favour of fifth defendant so that amount of set off could be determined – whether this amounted to a material change of circumstances entitling applicant to have the order for security for costs set aside

Uniform Civil Procedure Rules 1999 (Qld), r 667, r 668, r 772

COUNSEL:

No appearance by the applicant, the applicant’s submissions were heard on the papers
No appearance by the respondents, the respondents’ submissions were heard on the papers

SOLICITORS:

No appearance by the applicant, the applicant’s submissions were heard on the papers
No appearance by the respondents, the respondents’ submissions were heard on the papers

1. McMURDO P:  I agree that this application should be dismissed with costs to be assessed for the reasons given by Williams JA.

1. WILLIAMS JA:  The Court of Appeal (McMurdo P, McPherson JA, Philippides J) on 1 April 2004 ordered that until security in the sum of $10,000.00 for the costs of the appeal is provided by the present applicant (the appellant in the appeal) the proceedings in the appeal be stayed.  That application was brought on behalf of the five respondents to the appeal.  At the request of the parties that application was heard by the Court on the written submissions presented by both sides without any oral representation.  It is obvious, particularly from the reasons of McPherson JA, that the present applicant placed detailed submissions before the court in response to the application for security.

1. The applicant has now applied for an order setting aside the order made requiring him to provide security for costs. In the application reference is made to r 667(2), r 668(1)(a), r 668(3)(b) and r 772(4) of the Uniform Civil Procedure Rules.  Again the applicant has requested that the matter be heard on the papers and the respondents have indicated agreement with that course.

1. The applicant has filed an affidavit in support of his application and in addition has furnished to the court a ten page outline of submissions. 

1. Much of the material the applicant has placed before the court goes to the merits of his substantive appeal against the order of Cullinane J of 5 March 2004, rather than being specifically directed to setting aside the order for security for costs.  On this application the court is not concerned either with the merits of the appeal against the decision of Cullinane J or with an appeal against the order granting security for costs.

1. Towards the end of the outline of submissions lodged on behalf of the applicant the following appears:

“The above argument demonstrates why I cannot fail in my appeal.
. . . 

Thus the merits of my appeal and the unjustness and oppressiveness of the actions of the police and the state mitigate in favour of overturning the order for security.  It is in the states [sic] interest to have this matter determined because they are supposed to act for the community.”

1. Regardless of the validity or otherwise of those statements they do not afford the applicant a basis for setting aside the order for security.

1. The applicant also asserts in his written submissions that the order for security for costs “is an oppressive and unjust order” and that the respondents to the appeal “obtained the order by means of fraud”.  There is nothing in the material to suggest fraud on the part of the respondents, and the only basis on which the applicant appears to contend that the order for security for costs is oppressive and unjust is that he is impecunious.  Those assertions do not justify this court setting aside the order.

1. The only other matter of substance raised by the applicant is that there has been some change in circumstances since the order for security for costs was made.  In order to appreciate the point it is necessary to say something of the proceedings before Cullinane J.

1. The applicant, as plaintiff, instituted proceedings claiming damages for unlawful assault and wrongful arrest against four police officers and the State of Queensland.  The plaintiff was arrested on each of 8 December 1998, 22 January 1999, and 14 December 1999.  With respect to the arrest on 8 December 1998 the learned trial judge was satisfied that the plaintiff made out his causes of action for assault and wrongful imprisonment against the first defendant police officer.  With respect to the events of 22 January 1999 the learned trial judge concluded that the plaintiff had made out a cause of action of unlawful assault and wrongful imprisonment against the first defendant police officer and unlawful assault against the second defendant police officer.  The learned trial judge then assessed damages (including interest) in the sum of $7,188.00 against the first defendant and $594.50 against the second defendant.  In consequence judgment was given against the fifth defendant, State of Queensland, in the sum of $7,782.50 including interest.  The plaintiff (who conducted his own case at trial) also obtained an order that the first and fifth defendants pay his costs of and incidental to the cause of action of 8 December 1998 to be assessed on the Magistrates Court scale, and an order that the first, second and fifth defendants pay his costs of and incidental to the cause of action of 22 January 1999 assessed on the Magistrates Court scale. 

1. But with respect to the causes of action brought against the third and fourth defendant police officers and the fifth defendant with respect to the arrest on 14 November 1999 the learned trial judge concluded that there should be judgment for the defendants with costs to be assessed. 

1. Subsequently the fifth defendant, State of Queensland, applied for and obtained an order that its costs associated with the cause of action of 14 November 1999 be set off against the balance of the judgment given against it in favour of the applicant-plaintiff.  As the applicant was demanding that the fifth defendant satisfy the judgment in his favour for $7,782.50 Cullinane J stayed enforcement of his orders pending an assessment of the costs awarded in favour of the State of Queensland.

1. It is that which the applicant contends constitutes a change of circumstances entitling him to have the order for security for costs set aside.

1. That is not a change of circumstances which affects in any way the basis on which the order for security for costs was made and does not afford a ground for setting aside the order. 

1. A consideration of all the material now before the court does not reveal any ground justifying this court setting aside the order for security for costs.

1. Rule 772(3) of the UCPR provides that an order for security for costs “must set the amount of security that must be given and the time within which it must be given”.  Here no time was specified.  That appears to me to have been a deliberate decision on the part of the court.  Whilst the rule would ordinarily require a time to be set circumstances may justify the court in making the order open ended.  When that occurs the appeal is stayed until such time as security is given or the appeal is dismissed for want of prosecution on an application brought by the respondents.

1. The respondents in their written outline asked the court to fix a time within which the security should be paid.  In the circumstance it is not appropriate to do that at this stage; that is not a matter addressed by the applicant in his written submissions.  As indicated the respondents have their remedy if security is not provided within a reasonable time. 

1. The application to set aside the order for security for costs should be dismissed with costs to be assessed.

1. ATKINSON J:  I agree that the application should be dismissed with costs to be assessed for the reasons given by Williams JA.