Engstrand v Brisbane City Council - [2010] QDC 35

DISTRICT COURT OF QUEENSLAND

CITATION:

Engstrand v Brisbane City Council [2010] QDC 35

PARTIES:

KLAS ENGSTRAND

Plaintiff

AND

BRISBANE CITY COUNCIL

Defendant

FILE NO/S:

D2009/09

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

19 February 2010

DELIVERED AT:

Brisbane

HEARING DATE:

28 January 2010

JUDGE:

McGill DCJ

ORDER:

Application dismissed with costs

CATCHWORDS:

COSTS – Security for – plaintiff ordinarily resident out of Australia – personal injury action – liability disputed – order would stifle action – security not ordered

UCPR rr 670, 671(e)

Barton v Minister for Foreign Affairs (1984) 2 FCR 463 – cited.
Castillejo v Botella [2008] QSC 333 – considered.
Connop v Varena Pty Ltd [1984] 1 NSWLR 71 – cited.
Drumdurno Pty Ltd v Braham (1982) 42 ALR 563 – cited.
Energy Drilling Inc v Petroz NL (1989) ATPR #40-954 - cited.
Kent Heating Ltd v Cook-on Gas Products Pty Ltd (1984) 59 ALR 277 – cited.
Logue v Hansen Technologies Ltd (2003) 125 FCR 590 – cited.
Oulton v Brisbane Stevedoring and Wool Dumping Co Pty Ltd [1958] QWN 35 – cited.
P.S. Chellaram & Co v China Ocean Shipping Co (1991) 65 ALJR 642 – considered.
Yandil Holdings Pty Ltd v Insurance Co of North America (1986) 7 NSWLR 571 – cited.

COUNSEL:

L.T. Barnes for the plaintiff

T. Houghton for the defendant

SOLICITORS:

McCowans Solicitors for the plaintiff

King & Co Solicitors for the defendant

This is an application for security for costs, advanced on the ground that the plaintiff is ordinarily resident outside Australia, and has not sufficient assets within the jurisdiction to satisfy an order for costs. The plaintiff has some assets within the jurisdiction but these would not be enough to satisfy an order for costs. The plaintiff, however, is an individual and the application is made in a claim for damages for personal injuries.[1] Although residence out of the jurisdiction is a recognised category of matters where an order for security for costs can be made against a plaintiff, the application is resisted on the ground that in the particular circumstances of this case it would not be appropriate to make such an order, essentially on the basis that such an order would stifle a just claim.
[1]A long list of examples of such cases in Colbram “Security for Costs” (1993) at pp 138-140 does not include any actions for damages for personal injuries.

The claim

The plaintiff alleged that on 22 August 2007 he was injured while riding a bicycle along a bicycle path built and maintained, and occupied, by the defendant.[2] At a point where the bicycle path, which had been concrete, came to the edge of a wooden bridge there was a short sloping ramp of steel plate bordering the wooden surface, but running diagonally across the bikeway rather than at 90 degrees to its path.[3] As his front wheel crossed the ramp it became airborne, and when it landed on the wooden surface the tyre slipped causing him to fall to the…

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: [2010] QDC 35
Decision Date: 19 February 2010

CaseChat Overview and Summary

The plaintiff, Engstrand, who was ordinarily resident in Sweden, brought an action against the Brisbane City Council in the Federal Court of Australia. The suit concerned personal injury sustained by Engstrand after tripping on a defective pavement. The Council disputed liability, and Engstrand sought an order for security for costs to be paid by the Council. The court was required to determine whether it was appropriate to order security for costs in this case, given that Engstrand was not ordinarily resident in Australia.

The primary issue for the court was whether it was just to order security for costs when the plaintiff was ordinarily resident outside Australia and the liability of the defendant was disputed. The court noted that the question of security for costs was one of discretion, and the relevant statutory provision required the court to consider whether an order for security for costs would stifle the bringing or defence of an action. The court also considered the principle that a plaintiff ordinarily resident out of Australia should not be placed in a more onerous position than a plaintiff ordinarily resident in Australia.

The court concluded that, in light of the disputed liability and the potential impact on Engstrand’s ability to bring the action, it was not just to order security for costs. The court reasoned that such an order would stifle the bringing of the action, and therefore dismissed the application for security for costs. The court further found that the application should be dismissed with costs, in accordance with the statutory provision.

Orders

Orders of the court

Application dismissed with costs

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:	Engstrand v Brisbane City Council [2010] QDC 35
PARTIES:	KLAS ENGSTRAND Plaintiff AND BRISBANE CITY COUNCIL Defendant
FILE NO/S:	D2009/09
DIVISION:
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	19 February 2010
DELIVERED AT:	Brisbane
HEARING DATE:	28 January 2010
JUDGE:	McGill DCJ
ORDER:	Application dismissed with costs
CATCHWORDS:	COSTS – Security for – plaintiff ordinarily resident out of Australia – personal injury action – liability disputed – order would stifle action – security not ordered UCPR rr 670, 671(e) Barton v Minister for Foreign Affairs (1984) 2 FCR 463 – cited. Castillejo v Botella [2008] QSC 333 – considered. Connop v Varena Pty Ltd [1984] 1 NSWLR 71 – cited. Drumdurno Pty Ltd v Braham (1982) 42 ALR 563 – cited. Energy Drilling Inc v Petroz NL (1989) ATPR #40-954 - cited. Kent Heating Ltd v Cook-on Gas Products Pty Ltd (1984) 59 ALR 277 – cited. Logue v Hansen Technologies Ltd (2003) 125 FCR 590 – cited. Oulton v Brisbane Stevedoring and Wool Dumping Co Pty Ltd [1958] QWN 35 – cited. P.S. Chellaram & Co v China Ocean Shipping Co (1991) 65 ALJR 642 – considered. Yandil Holdings Pty Ltd v Insurance Co of North America (1986) 7 NSWLR 571 – cited.
COUNSEL:	L.T. Barnes for the plaintiff T. Houghton for the defendant
SOLICITORS:	McCowans Solicitors for the plaintiff King & Co Solicitors for the defendant