Luadaka v Dooley - [2003] QCA 51

SUPREME COURT OF QUEENSLAND

CITATION:

Luadaka v Dooley & Anor [2003] QCA 51

PARTIES:

DIANE BERYL LUADAKA
(plaintiff/appellant/respondent)
v
MICHELLE DOOLEY
PATRICK DOOLEY
(defendants/respondents/applicants)

FILE NO/S:

Appeal No 9380 of 2002
DC No 215 of 1997

DIVISION:

Court of Appeal

PROCEEDING:

Application for Security for Costs

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

21 February 2003

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2003

JUDGES:

McPherson and Davies JJA and Cullinane J
Judgment of the Court

ORDER:

1.    That the appellant furnish to the Registrar as security for the respondents' costs of the appeal the amount of $10,000 or property to the value of $10,000 by 4.00 pm on 7 March 2003 in such form as the Registrar may require, whether by payment of money or otherwise;
2.    that failing the furnishing of such security by that time the appeal stand dismissed with costs without further order;
3.    that the costs of this application be costs in the appeal.

CATCHWORDS:

PROCEDURE - COSTS - SECURITY FOR COSTS - POVERTY - LACK OF MEANS - where appellant is impecunious - where appeal is unlikely to succeed - where decision of trial judge involved findings of fact based on credit - whether appellant should provide security for costs of the appeal

COUNSEL:

I R Perkins for the respondents/applicants
Appellant/respondent appeared on her own behalf

SOLICITORS:

McLaughlins (Southport) for the respondents/applicants
Appellant/respondent appeared on her own behalf

THE COURT: This is an application for security for the costs of an appeal. The appellant in the appeal and the respondent to this application Ms Luadaka sued the applicants Mr and Mrs Dooley in the District Court for damages for negligence, breach of contract and for misleading and deceptive conduct pursuant to the Fair Trading Act. The action arose out of the conduct by the Dooleys, who are solicitors, of litigation on Ms Luadaka's behalf in the Family Court.

The action in the District Court had a long and tortuous history due no doubt in part to the fact that Ms Luadaka was, until the commencement of the trial, acting on her own behalf. It was finally heard in September 2001 and judgment given dismissing Ms Luadaka's claims in September 2002. In giving judgment the learned District Court judge gave detailed and comprehensive reasons for dismissing her claim, his reasons totalling 64 pages and 229 paragraphs.

Ms Luadaka's claim against the Dooleys turned very largely on findings of credit and it is important to note in this respect that the learned trial judge concluded that generally where there was a conflict between them he preferred the evidence of the Dooleys and rejected the evidence of Ms Luadaka. He said that he did not regard her as a reliable witness and was not prepared to accept her evidence unless it was supported by evidence from some independent source or was clearly inherently credible. He gave detailed reasons for this conclusion. In a number of specific cases he found her evidence unreliable, described specific claims…

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 Luadaka v Dooley

Details

AGLC: Luadaka v Dooley [2003] QCA 51
Case: [2003] QCA 51
Decision Date: 21 February 2003

CaseChat Overview and Summary

In the case of Luadaka v Dooley, the appellant, Luadaka, sought to appeal a decision of the trial judge that involved findings of fact based on credit. The respondents, Dooley, opposed the appeal on the basis of the appellant's inability to pay the costs of the appeal and the unlikelihood of the appeal succeeding. The matter came before the court to determine whether the appellant should be required to provide security for the respondents' costs of the appeal.

The primary legal issue before the court was whether the appellant, who was impecunious, should be required to provide security for the respondents' costs of the appeal. The court had to consider the appellant's lack of means and the unlikelihood of the appeal succeeding in determining whether it was appropriate to impose a security for costs order.

The court found that the appellant's lack of means and the unlikelihood of the appeal succeeding were significant factors in its decision. The court noted that the decision of the trial judge involved findings of fact based on credit, and the appeal was unlikely to succeed. The court held that it was appropriate to impose a security for costs order to protect the respondents from the risk of incurring costs if the appeal were to be dismissed. The court ordered that the appellant furnish security for the respondents' costs of the appeal in the amount of $10,000 or property to the value of $10,000 by a specified date. The court also ordered that the appeal stand dismissed with costs without further order if the appellant failed to provide the security by the specified date. Finally, the court ordered that the costs of the application be costs in the appeal.

The court's decision highlights the importance of considering the financial circumstances of an appellant when determining whether to impose a security for costs order. The court's approach in this case demonstrates its willingness to balance the interests of both parties in the litigation process. The final orders of the court demonstrate its commitment to protecting the respondents from the risk of incurring costs if the appeal were to be dismissed.

Orders

Orders of the court

1. That the appellant furnish to the Registrar as security for the respondents' costs of the appeal the amount of $10,000 or property to the value of $10,000 by 4.00 pm on 7 March 2003 in such form as the Registrar may require, whether by payment of money or otherwise;

2. that failing the furnishing of such security by that time the appeal stand dismissed with costs without further order;

3. that the costs of this application be costs in the appeal.

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:	Luadaka v Dooley & Anor [2003] QCA 51
PARTIES:	DIANE BERYL LUADAKA (plaintiff/appellant/respondent) v MICHELLE DOOLEY PATRICK DOOLEY (defendants/respondents/applicants)
FILE NO/S:	Appeal No 9380 of 2002 DC No 215 of 1997
DIVISION:	Court of Appeal
PROCEEDING:	Application for Security for Costs
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	21 February 2003
DELIVERED AT:	Brisbane
HEARING DATE:	12 February 2003
JUDGES:	McPherson and Davies JJA and Cullinane J Judgment of the Court
ORDER:	1. That the appellant furnish to the Registrar as security for the respondents' costs of the appeal the amount of $10,000 or property to the value of $10,000 by 4.00 pm on 7 March 2003 in such form as the Registrar may require, whether by payment of money or otherwise; 2. that failing the furnishing of such security by that time the appeal stand dismissed with costs without further order; 3. that the costs of this application be costs in the appeal.
CATCHWORDS:	PROCEDURE - COSTS - SECURITY FOR COSTS - POVERTY - LACK OF MEANS - where appellant is impecunious - where appeal is unlikely to succeed - where decision of trial judge involved findings of fact based on credit - whether appellant should provide security for costs of the appeal
COUNSEL:	I R Perkins for the respondents/applicants Appellant/respondent appeared on her own behalf
SOLICITORS:	McLaughlins (Southport) for the respondents/applicants Appellant/respondent appeared on her own behalf