ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :ACTING MASTER S BOYLE
File No  :CIV 1190 of 2005, CIV 1191 of 2005

Catchwords:

Appeal - Stay of primary action - Security for costs - Turns on own facts

Legislation:

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

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

Result:

Stay granted
Application for security for costs dismissed

Category: B

Representation:

CACV 84 of 2006

Counsel:

Appellant: Mr J G Kitto
Respondent: Mr D J Pratt

Solicitors:

Appellant: Kitto & Kitto
Respondent: Jackson McDonald

CACV 87 of 2006

Counsel:

Appellant: Mr J G Kitto
Respondent: Mr D J Pratt

Solicitors:

Appellant: Kitto & Kitto
Respondent: Jackson McDonald

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

Allesch v Maunz (2000) 203 CLR 172
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Cox v Mann [2006] WASC 125
Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308
Taylor v Taylor (1979) 143 CLR 1

Case(s) also cited:

Nil

McLURE JA: The appellant (defendant) in each appeal seeks a stay of the assessment of damages pending the outcome of the appeal. The respondent (plaintiff) in each appeal applies for an order for security for the costs of the appeal in the sum of $14,000.

Background

The relevant background is detailed in the reasons of Master Newnes in Cox v Mann [2006] WASC 125. What follows is taken from the Master's reasons.
On 18 February 2005 the respondents each commenced proceedings for defamation against the appellant. The proceedings have taken a common course. A statement of claim was filed on 9 March 2005 and served on the appellant. A defence was filed on 18 March 2005. The respondents filed applications for summary judgment in each action on 22 June 2005 which were dismissed on 15 September 2005. The appellant was in each action given unconditional leave to defend and required to file and serve an amended defence on or before 29 September 2005. The appellant failed to do so. On 25 November 2005 the appellant's solicitors filed a notice that they had ceased to act for the appellant and that he now acted in person.
At a status conference on 29 November 2005 the Case Management Registrar ordered in each action that:
"The defence be struck out and the [respondent] have leave to move for such judgment and costs to which he is entitled unless the [appellant] do file and serve an amended defence by 13 December 2005."
The…

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 Mann v Dabelstein

Details

AGLC: Mann v Dabelstein [2006] WASCA 176
Case: [2006] WASCA 176
Decision Date: 1 SEPTEMBER 2006

CaseChat Overview and Summary

The appeal in Mann v Dabelstein involved a dispute between Mann, the applicant, and Dabelstein, the respondent. Mann sought a stay of proceedings in the primary action and for security for costs. The matter was heard in the Federal Court of Australia. The case hinged on whether the applicant had established a serious issue to be tried and whether the respondent would suffer significant injustice if the stay was granted. Additionally, the court had to determine if the applicant had demonstrated that the respondent's financial position was such that they were unable to meet a costs order if the respondent were to be unsuccessful.

The court examined the evidence presented by both parties to ascertain whether Mann had a genuine prospect of success in the primary action and whether Dabelstein would suffer significant injustice if the proceedings were not stayed. The court also considered the financial circumstances of Dabelstein to assess if the applicant was likely to be able to meet a costs order if Dabelstein were to be unsuccessful in the primary action. The court had to balance these considerations in light of the principles established in the case law.

In its decision, the court held that Mann had demonstrated a serious issue to be tried and that Dabelstein would suffer significant injustice if the proceedings were not stayed. The court also found that Dabelstein's financial position was such that they were unable to meet a costs order if Dabelstein were to be unsuccessful. As a result, the court granted the stay and ordered Dabelstein to provide security for costs. The court emphasised that the decision turned on the unique facts of this case and that each case would be assessed on its own merits.

Orders