Coleman v Greenland (No 3) - [2004] QCA 236

SUPREME COURT OF QUEENSLAND

CITATION:

Coleman v Greenland & Ors (No 3) [2004] QCA 236

PARTIES:

PATRICK JOHN COLEMAN
(respondent/appellant)
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:

Application to Strike Out

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED EX TEMPORE ON:

14 July 2004

DELIVERED AT:

Brisbane

HEARING DATE:

14 July 2004

JUDGES:

de Jersey CJ, Jerrard JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Unless by 4.00 p.m. on Thursday the 12th of August 2004 the appellant complies with the order for the provision of security for the costs of the appeal made on 1st April 2004, this appeal be deemed to be dismissed, with costs including any reserved costs, to be assessed, without the need for any further order of the Court, and the Registrar is authorised to enter up an appropriate record of that dismissal.

2. Costs of this application should be the respondent's costs in the appeal.

CATCHWORDS:

PROCEDURE – COSTS – SECURITY FOR COSTS – OTHER MATTERS – where there is an application by the respondents for the dismissal of the appeal – where appellant has not furnished $10,000 security for costs, ordered by the Court of Appeal on 1 April 2004 – whether the court can set aside the order for security for costs

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

THE CHIEF JUSTICE: We have considered the application of the respondents to Appeal Number 2619 of 2004 in which the appellant is Patrick John Coleman and the respondents are Bradley Michael Greenland and others, including the State of Queensland.

This application by the respondents for the dismissal of the appeal has been considered by us on the papers. The respondents seek an order - as I have said - that the appeal be dismissed. The basis of the application is that the appellant has not furnished $10,000 security for costs, which on 1st of April 2004 the Court ordered be provided, with the proceedings stayed in the meantime.

All parties are content that this matter be determined on the papers without the need for an oral hearing. In his written submissions, the appellant has said that he does not have $10,000 and has sought to defer his obligation to provide the security until after the appeal is determined. He hopes to recover substantial damages by succeeding in the appeal.

While the appellant secured a judgment at trial entitling him…

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 236
Decision Date: 14 July 2004

CaseChat Overview and Summary

Coleman v Greenland (No 3) involved an application by the respondents for the dismissal of the appeal due to the appellant's failure to provide $10,000 security for costs, as previously ordered by the Court of Appeal on 1 April 2004. The appellant, Coleman, had not complied with the requirement to furnish the specified security, leading to this application by the respondents, Greenland. The primary legal issue before the court was whether the order for security for costs could be set aside under the circumstances presented.

The court considered the established legal principles governing security for costs and the discretion of the court to dismiss an appeal where the party fails to comply with such an order. It was noted that the security for costs order was made to protect the respondents from incurring unnecessary costs should the appeal prove unsuccessful. The court emphasised the importance of adherence to such orders to ensure the fair administration of justice. Given the appellant's failure to comply with the order, the court concluded that the dismissal of the appeal was an appropriate remedy to enforce compliance and to protect the interests of the respondents.

In light of the above, the court ordered that unless the appellant complied with the security for costs order by 4:00 p.m. on Thursday, 12 August 2004, the appeal would be deemed dismissed. The court also directed that the costs of this application, including any reserved costs, were to be assessed without the need for further orders, and authorised the Registrar to record the dismissal. Additionally, the court ruled that the costs of the application should be borne by the respondents in the appeal.

Orders

Orders of the court

1. Unless by 4.00 p.m. on Thursday the 12th of August 2004 the appellant complies with the order for the provision of security for the costs of the appeal made on 1st April 2004, this appeal be deemed to be dismissed, with costs including any reserved costs, to be assessed, without the need for any further order of the Court, and the Registrar is authorised to enter up an appropriate record of that dismissal.

2. Costs of this application should be the respondent's costs in the appeal.

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 3) [2004] QCA 236
PARTIES:	PATRICK JOHN COLEMAN (respondent/appellant) 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:	Application to Strike Out
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED EX TEMPORE ON:	14 July 2004
DELIVERED AT:	Brisbane
HEARING DATE:	14 July 2004
JUDGES:	de Jersey CJ, Jerrard JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Unless by 4.00 p.m. on Thursday the 12th of August 2004 the appellant complies with the order for the provision of security for the costs of the appeal made on 1st April 2004, this appeal be deemed to be dismissed, with costs including any reserved costs, to be assessed, without the need for any further order of the Court, and the Registrar is authorised to enter up an appropriate record of that dismissal. 2. Costs of this application should be the respondent's costs in the appeal.
CATCHWORDS:	PROCEDURE – COSTS – SECURITY FOR COSTS – OTHER MATTERS – where there is an application by the respondents for the dismissal of the appeal – where appellant has not furnished $10,000 security for costs, ordered by the Court of Appeal on 1 April 2004 – whether the court can set aside the order for security for costs
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