Dodds v Kennedy

Case [2011] WASCA 32

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   DODDS -v- KENNEDY [2011] WASCA 32

CORAM:   MURPHY JA

MAZZA J

HEARD:   9 FEBRUARY 2011

DELIVERED          :   14 FEBRUARY 2011

FILE NO/S:   CACV 89 of 2010

BETWEEN:   SUZANNE DODDS

First Appellant

TIMOTHY DODDS
Second Appellant

AND

GILLIAN KENNEDY
First Respondent

DONNCHA KENNEDY
Second Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :NEWNES JA

Citation  :DODDS -v- KENNEDY [2010] WASCA 201

File No  :CACV 89 of 2010

Catchwords:

Practice and procedure - Application for security for costs - Discretionary decision - Court's discretion unfettered - Need to show error

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 44(1)

Result:

Application for review allowed
Application for security for costs dismissed

Category:    A

Representation:

Counsel:

First Appellant               :     Mr B W Ashdown

Second Appellant          :     Mr B W Ashdown

First Respondent           :     Mr D H Solomon

Second Respondent      :     Mr D H Solomon

Solicitors:

First Appellant               :     Holborn Lenhoff Massey

Second Appellant          :     Holborn Lenhoff Massey

First Respondent           :     Solomon Brothers

Second Respondent      :     Solomon Brothers

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

33 South Pty Ltd v Fitzgerald [2008] FCA 1960

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170

Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497

Carey‑Hazell v Getz Bros & Co (Aust) Pty Ltd [2004] FCA 1334

Clack v Collins (No 1) [2010] FCA 513

Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186

Dodds v Kennedy [2010] WASCA 201

Dranichnikov v Centrelink [2002] FCA 1622

Farrell v Royal King's Park Tennis Club (Inc) [2007] WASCA 173

Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513

In re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318

J & M O'Brien Enterprises Pty Ltd v The Shell Co of Australia Ltd (No 2) (1983) 70 FLR 261

Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1

Kennedy v McGeechan [1978] 1 NSWLR 314

Lawrance v Commonwealth [2008] FCA 417

Lucas v Yorke (1983) 50 ALR 228

Mallett v Mallett [1984] HCA 21; (1984) 156 CLR 605

Mann v Dabelstein [2006] WASCA 176

Monteleone v Owners of the Old Soap Factory [2007] WASCA 79

SAS Global Forrestdale Pty Ltd v Samsera Pty Ltd [2010] WASC 309

Sent v Jet Corporation of Australia Pty Ltd (1984) 2 FCR 201

Tait v Bindal People [2002] FCA 322

Westralian Gold Mines Ltd v Westralian Minerals & Drilling Pty Ltd (in liq) (1986) 4 ACLC 167

Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd [2005] WASCA 106; (2005) 30 WAR 290

REASONS OF THE COURT:   

Introduction

  1. This is an application to review a decision by Newnes JA in which his Honour rejected an application by the respondents for security for costs of…

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Dodds v Kennedy [2011] WASCA 32
Case
[2011] WASCA 32
Decision Date

CaseChat Overview and Summary

Dodds v Kennedy is an appeal regarding an application for security for costs in Western Australia. The appellants, Dodds, appealed against the decision of the Supreme Court of Western Australia to order them to provide security for the costs of the respondents, Kennedy. The appeal focuses on the discretionary decision of the lower court to require the appellants to provide security for the costs of the appeal, particularly given the appellants' impecuniosity and unpaid costs from the trial below.

The legal issues before the court involved the exercise of discretion in ordering security for costs. The court had to determine whether the appellants' impecuniosity and the arguability of the appeal warranted the requirement for security. The court also considered whether the appeal was being pursued for the benefit of another party, such as the appellants' solicitors, who had unpaid fees. Furthermore, the court had to balance the appellants' right to appeal against the potential financial burden on the respondents if the appeal failed.

In reaching its decision, the court found that the appellants' solicitors' unpaid fees did not confer a relevant interest in the appeal for the purpose of requiring security. The court held that the appeal was not being pursued for the benefit of the appellants' solicitors but was a genuine appeal with arguable and significant legal questions. The court acknowledged the appellants' impecuniosity and the fact that they had not paid the respondents' costs of the trial. However, the court also noted the statutory right to appeal and the public significance of the issues raised. Ultimately, the court exercised its discretion afresh and decided not to order security, finding that the balance of factors did not justify such an order.

The court allowed the application for review but dismissed the application for security. The appellants were thus not required to provide security for the respondents' costs of the appeal.

Orders

Orders of the court

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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

The fact that the appellants' solicitors have unpaid fees of $19,000 in respect of the proceedings below, does not give them a relevant interest in the appeal for present purposes. The consideration that security is appropriate where the litigation is, in substance, being brought for the benefit of another party standing behind the impecunious litigant where that other party 'has the privilege of suing on its own initiative and responsibility, for its benefit, on terms that if it loses it has no responsibility for costs' (Sent v Jet Corporation of Australia Pty Ltd (214)), has no application here. It cannot properly be said that the appeal is being pursued for the benefit of the appellants' solicitors. Having found that there was an error in the learned judge's disposition of the respondents' application, it is necessary for this court to exercise the discretion afresh. The exercise of discretion is not an easy one in this case. On the one hand, the appellants are impecunious and have not paid the respondents' costs of the trial below, the respondents did not cause the appellants' impecuniosity, and if the appeal fails, the respondents will not be able to recover their costs of the appeal. It is also significant that the appellants have failed at first instance and had their day in court. On the other hand, there is a statutory right of appeal (s 79 of the District Court of Western Australia Act 1969 (WA)). Also, we are satisfied that this is a genuine appeal, that the questions raised in the appeal are arguable and include substantial questions of law, and that they are of some significance in relation to the construction and operation of a 'subject to finance' provision in the standard form REIWA contract for the sale of land in Western Australia. Although we accept the respondents' submission that the REIWA form itself has been amended over the years and is capable of amendment from time to time, it nevertheless seems to us that there is a real degree of public significance in the determination of the issues raised in this appeal. Overall, and on balance, we are inclined to the view, in the re‑exercise of discretion, that security should not be ordered. It follows from the above reasons that we would allow the application for review, but dismiss the application for security.