Jenkins v Martin - [2004] QSC 417

SUPREME COURT OF QUEENSLAND

CITATION:

Jenkins v Martin & Anor [2004] QSC 417

PARTIES:

ROBERT ALEXANDER JENKINS and BERICE HOPE JENKINS
(plaintiffs)
v
WILLIAM JOHN MARTIN
(first defendant)
BARWICKS (a firm)
(second defendant)

FILE NO/S:

SC 3941 of 1997 and SC 2728 of 2000

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

25 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

8 October 2004

JUDGE:

Wilson J

ORDER:

1) That within 21 days of this order the plaintiffs give security for the first defendant's costs of the appeal in the sum of $7,500-00 in a form approved by the Registrar;

2) That within 21 days of this order the plaintiffs give security for the second defendant’s costs of the appeal in the sum of $7,500-00 in a form approved by the Registrar.

CATCHWORDS:

APPEAL AND NEW TRIAL – QUEENSLAND – SECURITY FOR COSTS – Where plaintiffs sue counsel and solicitors who acted for them in earlier litigation - where judge dismissed plaintiffs' application for leave to file tenth version of statement of claim and dismissed claim for want of prosecution - appeal against order dismissing claim - where appeal is against exercise of discretion in an interlocutory matter - where plaintiffs' prospects on appeal are not good - where plaintiffs are impecunious - where plaintiffs contend impecuniosity stems from defendants' mishandling of earlier litigation - whether security for costs of the appeal will be ordered against the plaintiffs

Uniform Civil Procedure Rules 1999 (Qld), r 772

Natcraft Pty Ltd & anor v Det Norske Veritas & anor [2002] QCA 241, followed

COUNSEL:

W Cusack (sol) for the plaintiffs
JB Sweeney for the first defendant
JC Faulkner for the second defendant

SOLICITORS:

Cusack Galvin & James for the plaintiffs
Carter Newell for the for the first defendant
Coyne & Associates for the second defendant

WILSON J: On 22 July 2004 PD McMurdo J heard an application by the plaintiffs for leave to deliver an amended statement of claim and applications by the defendants to have the proceeding dismissed for want of prosecution. His Honour –

(i)dismissed the plaintiffs’ application;
(ii)dismissed the proceeding against the first defendant for want of prosecution;
(iii)dismissed the proceeding against the second defendant for want of prosecution, on condition that within 14 days the second defendant undertake not to pursue any claim against the plaintiffs for fees and expenses for which it had sued in SC 3941 of 1997.

The plaintiffs filed a notice of appeal against His Honour’s decision on 31 August 2004. On 5 October 2004 the defendants filed applications for security for costs of the appeal, the first defendant seeking security in the sum of $25,000-00 and the second defendant seeking security in the sum of $30,000-00.

Principles

Under r 772 of the Uniform Civil Procedure Rules an application for security for the costs of an appeal may be made to the Court of Appeal or the court that made the decision appealed from. The court hearing the application has an unfettered discretion whether to order…

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.

Continue reading Jenkins v Martin

Details

AGLC: Jenkins v Martin [2004] QSC 417
Case: [2004] QSC 417
Decision Date: 25 November 2004

CaseChat Overview and Summary

The plaintiffs, Jenkins, sought to appeal against the dismissal of their claim by the first instance judge, which was dismissed for want of prosecution and for the refusal to allow the filing of a tenth version of the statement of claim. The defendants, Martin, were the counsel and solicitors who had previously acted for the plaintiffs in an earlier litigation. The appeal was brought before the court to determine the exercise of discretion in an interlocutory matter concerning the security for costs of the appeal.

The central issue for the court was whether security for the costs of the appeal should be ordered against the plaintiffs, given their impecunious status. The plaintiffs argued that their financial situation was a direct consequence of the defendants' mishandling of the earlier litigation. The court needed to assess the prospects of success of the appeal and the plaintiffs' ability to fund the appeal.

The court considered the plaintiffs' prospects on appeal were not good, and their financial status was precarious. It was found that the plaintiffs' impecuniosity did not stem from the defendants' actions but rather from their own financial mismanagement. The court exercised its discretion under relevant legislation to order the plaintiffs to provide security for the defendants' costs of the appeal. The sum of $7,500 was deemed appropriate for each defendant.

The court made two orders. Firstly, within 21 days of the order, the plaintiffs were required to give security for the first defendant's costs of the appeal in the sum of $7,500. Secondly, within the same timeframe, the plaintiffs were to provide security for the second defendant’s costs of the appeal in the same amount, in a form approved by the Registrar.

Orders

Orders of the court

1) That within 21 days of this order the plaintiffs give security for the first defendant's costs of the appeal in the sum of $7,500-00 in a form approved by the Registrar;

2) That within 21 days of this order the plaintiffs give security for the second defendant’s costs of the appeal in the sum of $7,500-00 in a form approved by the Registrar.

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

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CITATION:	Jenkins v Martin & Anor [2004] QSC 417
PARTIES:	ROBERT ALEXANDER JENKINS and BERICE HOPE JENKINS (plaintiffs) v WILLIAM JOHN MARTIN (first defendant) BARWICKS (a firm) (second defendant)
FILE NO/S:	SC 3941 of 1997 and SC 2728 of 2000
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	25 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	8 October 2004
JUDGE:	Wilson J
ORDER:	1) That within 21 days of this order the plaintiffs give security for the first defendant's costs of the appeal in the sum of $7,500-00 in a form approved by the Registrar; 2) That within 21 days of this order the plaintiffs give security for the second defendant’s costs of the appeal in the sum of $7,500-00 in a form approved by the Registrar.
CATCHWORDS:	APPEAL AND NEW TRIAL – QUEENSLAND – SECURITY FOR COSTS – Where plaintiffs sue counsel and solicitors who acted for them in earlier litigation - where judge dismissed plaintiffs' application for leave to file tenth version of statement of claim and dismissed claim for want of prosecution - appeal against order dismissing claim - where appeal is against exercise of discretion in an interlocutory matter - where plaintiffs' prospects on appeal are not good - where plaintiffs are impecunious - where plaintiffs contend impecuniosity stems from defendants' mishandling of earlier litigation - whether security for costs of the appeal will be ordered against the plaintiffs Uniform Civil Procedure Rules 1999 (Qld), r 772 Natcraft Pty Ltd & anor v Det Norske Veritas & anor [2002] QCA 241, followed
COUNSEL:	W Cusack (sol) for the plaintiffs JB Sweeney for the first defendant JC Faulkner for the second defendant
SOLICITORS:	Cusack Galvin & James for the plaintiffs Carter Newell for the for the first defendant Coyne & Associates for the second defendant