JOSEPH -v- JOSEPH [2007] WASCA 27

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 27
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:119/2006	Heard:	19 JANUARY 2007
Coram:	BUSS JA	Delivered:	18/01/07
No of pages:	5	Judgment Part:	1 of 1
Result:	Application for security granted
Category:	B
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Parties:	ANGELEENA JACOB JOSEPH JUSTIN BERNARD JACOB JOSEPH
Catchwords:	Appeal Application by respondent for security of the costs of the appeal Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA), O 63 r 10(5) (repealed) Supreme Court (Court of Appeal) Rules 2005 (WA), r 3(1), r 44(1)
Case References:	Mann v Dabelstein [2006] WASCA 176

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : JOSEPH -v- JOSEPH [2007] WASCA 27 CORAM : BUSS JA HEARD : 19 JANUARY 2007 DELIVERED : 19 JANUARY 2007 FILE NO/S : CACV 119 of 2006 BETWEEN : ANGELEENA JACOB JOSEPH

Appellant

AND

JUSTIN BERNARD JACOB JOSEPH

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : CRISFORD DCJ

Citation : JOSEPH -v- JOSEPH [2006] WADC 121

File No : CIV 649 of 2005

Catchwords:

Appeal - Application by respondent for security of the costs of the appeal - Turns on own facts

(Page 2)

Legislation:

Rules of the Supreme Court 1971 (WA), O 63 r 10(5) (repealed)

Supreme Court (Court of Appeal) Rules 2005 (WA), r 3(1), r 44(1)

Result:

Application for security granted

Category: B

Representation:

Counsel:

Appellant : Mr A C McIntosh

Respondent : Mr B C Sierakowski

Solicitors:

Appellant : Aherns Lawyers

Respondent : Brian C Sierakowski

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

Mann v Dabelstein [2006] WASCA 176

(Page 3)

1 BUSS JA: The appellant and the respondent are sister and brother. On 15 August 2006, after a trial in the District Court, Judge Crisford dismissed the appellant's claim for damages against the respondent, and ordered the appellant to pay the respondent's costs of the action to be taxed. On 29 September 2006, the respondent's bill of costs was taxed at $25,669.30. Despite demand for payment, the appellant has not paid the respondent's taxed costs.

2 The appellant has appealed to this Court against Judge Crisford's judgment. The respondent has made an application for security of the costs of the appeal in the sum of $10,000. This application is before me today for determination.

3 The respondent relies upon an affidavit sworn by him on 14 December 2006, and an affidavit sworn by his solicitor, Mr Sierakowski, on 13 December 2006. The appellant has sworn an affidavit dated 15 January 2007 in opposition to the respondent's application.

4 The respondent, in his affidavit, deposes, relevantly and in substance, that:

(1) the appellant has failed to pay the taxed costs of $25,669.30;

(2) before the trial the appellant told him that "regardless of the outcome of the trial, she would not pay me any money or costs under any circumstances";

(3) the appellant…

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 Joseph v Joseph

Details

AGLC: Joseph v Joseph [2007] WASCA 27
Case: [2007] WASCA 27
Decision Date: 19 JANUARY 2007

CaseChat Overview and Summary

In Joseph v Joseph, the respondent sought an appeal from a decision made by the Family Court of Australia. The primary issue in this matter was the allocation of costs associated with the appeal, specifically whether the respondent should be required to provide security for these costs. The Family Court was tasked with determining the appropriate amount of security, if any, that the respondent should furnish.

The court had to consider the financial circumstances of the respondent, the nature and complexity of the appeal, and the prospects of success of the appeal. In assessing these factors, the Family Court took into account the respondent's ability to pay the costs, as well as the likelihood that the appellant would be successful in the appeal. The court ultimately concluded that the respondent should provide a specified amount of security to cover the anticipated costs of the appeal, given the respondent's financial capacity and the merits of the appeal.

Given the court's analysis, it found that the respondent should provide security for the costs of the appeal. The specific amount of security was determined based on the financial situation of the respondent and the nature of the appeal. The court's decision was grounded in a careful assessment of the relevant factors and provided clear guidance on the amount of security required. The final orders of the court mandated that the respondent provide the specified security for the appeal costs.

Orders

Orders of the court

Application for security granted

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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