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

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

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.

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.

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.

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: [2004] QCA 180
Decision Date: 28 May 2004

CaseChat Overview and Summary

The case of Coleman v Greenland (No 2) involved an appeal by the applicant, Coleman, against a decision made by the Court of Appeal. The dispute centred around a security for costs order made by the Court of Appeal, requiring Coleman to provide security for costs in his appeal. The orders made in the court below, which granted a stay pending the assessment of costs in favour of the fifth defendant, were to determine the amount of set off. Coleman argued that this constituted a material change of circumstances, justifying the setting aside of the order for security for costs.

The legal issues before the court were whether the stay of the orders made in the court below, pending assessment of costs in favour of the fifth defendant, constituted a material change of circumstances that entitled Coleman to have the order for security for costs set aside. The court was required to determine the effect of this change on the applicant's entitlement to relief from the security for costs order.

The court reasoned that the stay of the orders made in the court below, pending assessment of costs in favour of the fifth defendant, did not amount to a material change of circumstances that would entitle Coleman to have the order for security for costs set aside. The court held that the stay of the orders did not alter the financial position of the applicant in a way that would justify a reconsideration of the security for costs order. The applicant's financial situation remained unchanged, and the court found no basis to alter the original order. Consequently, the application was dismissed, and Coleman was ordered to pay the costs of the appeal, which were to be assessed.

Orders

Orders of the court

Application dismissed with costs to be assessed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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