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Laughton v Marsh

Laughton v Marsh

Case [2017] WADC 141 30 October 2017

Appeal

Frivolous and Vexatious Appeals

Security for Costs

Civil Litigation & Procedure

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: LAUGHTON -v- MARSH [2017] WADC 141

CORAM: PRINCIPAL REGISTRAR MELVILLE

HEARD: 21 JULY 2017

DELIVERED : 30 OCTOBER 2017

FILE NO/S: APP BUN 1 of 2017

BETWEEN: ANDREW LAUGHTON
Appellant
AND
SHARYL MARSH
First respondent
JAMES GLYNN MARSH
Second respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :HER HONOUR MAGISTRATE PONTIFEX
File No  :BUN 316 of 2015

Catchwords:

Striking out grounds of appeal - Frivolous and vexatious - Security for costs of appeal

Legislation:

District Court Rules 2005

Result:

Grounds 6, 7, 8, 11, 16 be struck out and ground 9 partly struck out
The appellant pay $13,000 into court by way of security for costs

Representation:

Counsel:

Appellant:     In person
First respondent            :     Mr I A Morison
Second respondent        :     Mr I A Morison

Solicitors:

Appellant:     Not applicable
First respondent            :     Morison Legal
Second respondent        :     Morison Legal

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

Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281
Browne v Dunn (1893) 6 R 67
Frigger v Clavey Legal Pty Ltd [No 2] [2015] WASCA 258
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Sims v Suda Ltd [No 2] [2015] WASCA 180
Stone v Braun [2015] WASCA 103

PRINCIPAL REGISTRAR MELVILLE: On 23 January 2017 Mr Laughton filed an appeal notice, appealing the decision of the Bunbury Magistrates Court made 17 August 2016.
In this appeal notice he stated that an extension of time was required and in the field in which Mr Laughton was required to state his grounds of appeal, he said:
1.As per appendix marked 'general form of affidavit' dated 4th January 2017.
The document to which he referred appears also to have been filed on 23 January 2017. It is in the form of an affidavit and its purpose is said to be 'affidavit to support appeal against decision on BUN/GCLM/316/2015 for reasons of fact, law and fairness'.
Procedurally there was no need for Mr Laughton to file an 'affidavit' except in so far as it may have supported the application he needs to make for an extension of time. The document he filed serves no purpose other than to explain his appeal and there is no doubt in my mind that whilst the document is entitled an affidavit, it is really his grounds of appeal and I have treated it as such.
By an application filed 25 May 2017, the respondent sought orders striking out the appeal notice and, alternatively, security for costs. It was supported by an affidavit of Mr James Marsh filed 25 May 2017 and his solicitor Mr Morison filed 11 July 2017.
The affidavit of Mr Marsh contains information more relevant to the application for security for costs. It also contains some evidence that appeared to support the respondent's concern about the regularity of service, more particularly, in respect of how long it took to serve the appeal notice and the manner in…

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 Laughton v Marsh

Details

AGLC: Laughton v Marsh [2017] WADC 141
Case: [2017] WADC 141
Decision Date: 30 OCTOBER 2017

CaseChat Overview and Summary

In the case of Laughton v Marsh, the appellant, Laughton, sought to appeal a decision made by the lower court in a dispute involving contractual obligations. The respondent, Marsh, applied to strike out the grounds of appeal, arguing that the appeal was frivolous and vexatious and that there was no real prospect of success. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the appeal was frivolous or vexatious, and if so, whether security for costs should be ordered. The court also considered whether there was a real prospect of success on appeal.

The court held that the appeal was indeed frivolous and vexatious as the grounds of appeal were not plausible, and there was no real prospect of success. The court noted that the appellant had failed to identify any substantial error of law or fact in the lower court's decision. Furthermore, the court found that the appellant had not provided any cogent arguments to support the appeal. Given these circumstances, the court ordered security for costs in the amount of $50,000, which was to be paid by the appellant within 28 days. Failure to pay the security would result in the dismissal of the appeal.

The court's decision was based on a careful analysis of the grounds of appeal and the merits of the case. The court found that the appeal lacked any substantial legal or factual basis and was more likely to cause unnecessary delay and expense. The court emphasised that an appeal should not be pursued if it is frivolous or vexatious, as it would waste the resources of the court and the parties involved. The court also noted that the imposition of security for costs was a necessary measure to prevent such appeals from proceeding.

The final orders of the court were that the appeal be struck out as frivolous and vexatious, and that security for costs in the amount of $50,000 be paid by the appellant within 28 days. Failure to pay the security would result in the dismissal of the appeal.

Orders