Farrell v Royal Kings Park Tennis Club (Inc) [No 3]
[2007] WASCA 280
•22 NOVEMBER 2007
FARRELL -v- ROYAL KINGS PARK TENNIS CLUB (INC) [No 3] [2007] WASCA 280
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 280 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:37/2006 | 22 NOVEMBER 2007 | |
| Coram: | PULLIN JA NEWNES AJA | 21/11/07 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CAROL FARRELL by her next friend RONALD CHARLES WAUGH ROYAL KINGS PARK TENNIS CLUB (INC) |
Catchwords: | Practice and procedure Dismissal of appeal by reason of noncompliance with an order of the court Turns on own facts |
Legislation: | Supreme Court (Court of Appeal) Rules 2005 (WA), r 7, r 43(2)(g)(ii), r 43(2)(h), r 44(1) |
Case References: | Farrell v Royal Kings Park Tennis Club (Inc) [No 2] [2007] WASCA 193 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FARRELL -v- ROYAL KINGS PARK TENNIS CLUB (INC) [No 3] [2007] WASCA 280 CORAM : PULLIN JA
- NEWNES AJA
- Appellant
AND
ROYAL KINGS PARK TENNIS CLUB (INC)
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : JOHNSON J
Citation : FARRELL -v- ROYAL KING'S PARK TENNIS CLUB (INC) [2006] WASC 51
File No : CIV 2147 of 2000
(Page 2)
Catchwords:
Practice and procedure - Dismissal of appeal by reason of noncompliance with an order of the court - Turns on own facts
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 7, r 43(2)(g)(ii), r 43(2)(h), r 44(1)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : No appearance
Respondent : Mr D M Bruns
Solicitors:
Appellant : In person
Respondent : Talbot Olivier
Case(s) referred to in judgment(s):
Farrell v Royal Kings Park Tennis Club (Inc) [No 2] [2007] WASCA 193
(Page 3)
1 PULLIN JA: On 17 August 2007 Buss JA, exercising authority under r 43(2)(h) of the Supreme Court (Court of Appeal) Rules 2005 (WA), made an interim order that the appellant provide security for the respondent's costs in the sum of $15,000 and ordered that this sum be paid into court within 28 days of 17 August 2007.
2 In his reasons (Farrell v Royal Kings Park Tennis Club (Inc) [No 2] [2007] WASCA 193), Buss JA said at [34] that there was no evidence that the appeal would be frustrated if security was ordered and that there was no evidence that if security was ordered it could not be procured from any source or fund. His Honour said that the appellant had an evidentiary onus in relation to this point which had not been satisfied. This was just one of the factors that his Honour took into account in ordering security. The $15,000 was not paid into court within 28 days of 17 August 2007 or at all.
3 Under r 43(2)(g)(ii) of the Court of Appeal Rules the court has the authority to dismiss an appeal if the appellant has not obeyed any order made under the rules. The court has jurisdiction under r 7 to decide an application on the basis of documents filed without requiring the parties to attend and has jurisdiction to make a decision on the court's own initiative.
4 On 12 October 2007 the registrar gave notice to the appellant to show cause why the appeal should not be dismissed because of the appellant's failure to provide security in accordance with the order of Buss JA made on 17 August 2007. In response the appellant's next friend filed an application seeking orders to permit the next friend Mr Waugh to represent himself as next friend of the appellant with the assistance of Mr J R Ludlow as counsel and seeking an order that the order for security for costs be set aside or cancelled. I will deal first with the application to set aside the order for security for costs and the question of whether to dismiss the appeal for non-compliance with Buss JA's order.
5 Rule 44(1) of the Court of Appeal Rules permits a party to apply for an order amending or cancelling an interim order. The appellant's application in reliance on that rule is supported by an affidavit of Mr Waugh sworn 5 November 2007. The affidavit reveals that the appellant has been refused legal aid to conduct the appeal and that a litigation funder would not assist. It is to be observed that this case involves a complaint by the appellant that she was not selected to play squash in a women's pennant team by a private tennis club, there being no
(Page 4)
- complaint that this has resulted in any effect on income or property. I also observe that the effort to obtain legal aid or litigation funding was made after the order for security was made.
6 In the affidavit Mr Waugh also asserts that he is not able to satisfy the order for security from his own resources or obtain funding from friends or relatives. The affidavit does not condescend upon particulars in any respect; it does not disclose what efforts have been made to secure funds from friends or relatives or which friends or relatives have been approached.
7 Mr Ludlow has sent a letter containing submissions on behalf of Mr Waugh. The submissions contend that the initial evidentiary burden in the application for security for costs was on the respondent. The submissions imply that Buss JA held otherwise. That is not correct. Buss JA said at [34]:
The appellant has an evidentiary onus on this issue in circumstances where her next friend is an undischarged bankrupt and is not a party who is suing for his own benefit.
8 At [18] Buss JA said:
Although impecuniosity is not a ground for ordering the next friend of a plaintiff under a disability to provide security for costs at first instance, impecuniosity may be a ground for ordering security where the person under a disability appeals against the dismissal of his or her action.
9 The respondent discharged the onus on it at the hearing before Buss JA by deposing that Mr Waugh was an undischarged bankrupt, and that the costs of the trial before Johnson J have not been paid.
10 Mr Ludlow's submissions also assert that Buss JA held that the appellant had an arguable case. This is not correct. Buss JA did not, in his reasons, examine the issues raised in the appeal, he merely stated that he would 'accept' that the appellant had a reasonably arguable case and then dealt with the application on discretionary grounds which led him to order security. In my opinion the application to cancel the interim order should be dismissed. The order for security, which was an order made under the rules, has not been complied with and in the exercise of the court's powers under the rules the appeal should be dismissed. I do not, therefore, need to deal with Mr Waugh's other applications.
11 NEWNES AJA: I agree and have nothing to add.
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