Lewis v Strickland

[2004] QCA 134

SUPREME COURT OF QUEENSLAND

CITATION:

Lewis v Strickland & Anor [2004] QCA 134

PARTIES:

RONALD HERBERT LEWIS
(plaintiff/appellant/respondent)
v
CARLY STRICKLAND
(first defendant/first respondent)
NOMINAL DEFENDANT
(second defendant/second respondent/applicant)

FILE NO/S:

Appeal No 11464 of 2003
SC No 1604 of 2003
SC No 11384 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for Security for Costs

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

22 April 2004

JUDGES:

de Jersey CJ, Jerrard JA and Holmes J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

That within 28 days the respondent pay the Registrar, by way of security for costs of the appeal, the sum of $5,782;1.   

that pending the provision of such security, proceedings in the appeal be stayed;2.   

that in the event security is not paid in accordance with (1), the appeal be deemed, without further order, to have been struck out with costs to be assessed;3.   

that the costs of this application, be costs in the appeal.4.   

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – application by second respondent for security for costs against appellant – where appellant’s prospects of success on appeal less than even – where appellant if unsuccessful will be unable to satisfy an order for costs against him – where appellant failed at trial – where delay in bringing application of no significance – whether application should be granted

Banks v Copas Newnham P/L & Anor [2001] QCA 526; Appeal No 9434 of 2001, 21 November 2001, cited
Luadaka v Dooley & Anor [2003] QCA 51; Appeal No 9380 of 2002, 21 February 2003, cited
Natcraft P/L & Anor v Det Norske Veritas & Anor [2002] QCA 241; Appeal No 9550 of 2001, 9 July 2002, applied

COUNSEL:

P L Feely for the applicant
The respondent appeared on his own behalf

SOLICITORS:

McInnes Wilson for the applicant
The respondent appeared on his own behalf

1. :de JERSEY CJ  I have had the advantage of reading the judgment of Jerrard JA, where his Honour sets out the circumstances of the matter.

1. There is every reason why the order sought should be made:  the respondent is impecunious, his prospects of success in the appeal are weak, and his proposed fresh evidence is inadmissible, because it could probably have been secured for the trial and it would have been unlikely to impact upon the trial Judge’s conclusions anyway, based as they were substantially upon his accepting, as was open, certain medical evidence.  The amount sought is modest, and the applicant has not been guilty of significant delay in bringing the application. 

1. I agree with the orders proposed by Jerrard JA.

1. JERRARD JA:  This is the hearing of an application by the Nominal Defendant, which is the second respondent in an appeal brought by Mr Lewis against the very modest sum of $6,572.00…