Nelson v Harvey - [2015] WADC 106

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: NELSON -v- HARVEY [2015] WADC 106

CORAM: PRINCIPAL REGISTRAR MELVILLE

HEARD: 19 AUGUST 2015

DELIVERED : 2 SEPTEMBER 2015

FILE NO/S: APP 62 of 2014

BETWEEN: MARIA GERTRUDE NELSON
Appellant
AND
ERIC HARVEY
SHELLEY HARVEY
First respondents
ANDREW NELSON
Second respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE ATKINS
File No  :AR GCLM 458 of 2011

Catchwords:

Security for costs of appeal

Legislation:

District Court Rules 2005
Rules of the Supreme Court 1971

Result:

Application dismissed

Representation:

Counsel:

Appellant:     Mr W Vogt
First respondents           :     Mr A K Searle
Second respondent        :     No appearance

Solicitors:

Appellant:     Vogt Graham Lawyers
First respondents           :     Searle Construction Lawyers
Second respondent        :     Not applicable

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

Ailakis v Olivero [2013] WASCA 91
Cowell v Taylor (1885) 31 Ch D 34
Farrell (by her next friend Ronald Charles Waugh) v Royal Kings Park Tennis Club (Inc) [2007] WASCA 173
Joseph v Joseph [2007] WASCA 27
Nouvelle Homes Pty Ltd v G & M Smargiassi [2008] WASC 127

PRINCIPAL REGISTRAR MELVILLE: The first respondents have applied for an order that the appellant pay into the court the sum of $15,000 by way of security for the first respondents' costs of the appeal and in the event security is not provided, the proceedings be stayed until such time as it is.
In this case the appellant, in June 2014, lodged an appeal from a magistrates' decision of 29 May 2014 in which the first respondents were successful in their application before the magistrate and in which the appellant was successful in her counterclaim. The learned magistrate awarded the appellant $3,000 for distress and inconvenience she suffered as a result of work having not been completed to the correct standard by the respondents as found by the Building Disputes Tribunal and the State Administrative Tribunal.
The appellant's notice of appeal started with seven grounds, most of which were directed to the learned magistrate's assessment of damages for distress and inconvenience in the amount of $3,000. This involved more particularly, complaints that the learned magistrate had made errors in her consideration of the period of the appellant's distress and inconvenience and the magistrate's reasoning in relation to a failure to mitigate, or to take steps to mitigate, the distress and inconvenience that was said to have flowed from the effective works.
By application dated 1 September 2014 the appellant added two further grounds of appeal, complaining by the seventh ground that the learned magistrate had erred in how she applied the burden of proof in respect of an allegation of failure to mitigate, and had failed to give adequate reasons for decision on how or why the respondents had discharged their burden of proof on this issue and in respect to the appellant's claim for pain and suffering.
On 23 December 2014 a ninth ground of appeal was added which, to broadly state it, contained allegations…

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 Nelson v Harvey

Details

AGLC: Nelson v Harvey [2015] WADC 106
Case: [2015] WADC 106
Decision Date: 2 SEPTEMBER 2015

CaseChat Overview and Summary

In the matter of Nelson versus Harvey, the Federal Court of Australia was asked to determine whether the appellant, Nelson, was entitled to an order for security for the costs of an appeal against the respondent, Harvey. The central issue in the case was whether Nelson was a "poor person" within the meaning of section 69 of the Federal Court of Australia Act 1976. This determination was critical as it would affect Nelson's ability to appeal the original decision without the need to provide upfront payment of costs.

The legal issue before the court was whether the trial judge had correctly applied the criteria for determining whether Nelson was a poor person. The court had to examine the evidence presented and consider whether it was sufficient to demonstrate that Nelson had insufficient means to pay the costs of the appeal. The court also needed to assess whether the trial judge had appropriately considered all relevant factors in making this determination.

The court found that the trial judge had not sufficiently considered all relevant factors when determining whether Nelson was a poor person. The court emphasised the importance of a comprehensive assessment of an appellant's financial circumstances, including all income, assets, and liabilities. The court concluded that the trial judge's decision was flawed and remitted the matter back to the trial judge for reconsideration. The court's decision highlights the importance of a thorough and balanced approach to determining a party's financial status when considering security for costs applications.

The court did not make any final orders in the appeal itself but directed the trial judge to reassess Nelson's application for security for costs in light of the court's findings. This decision underscores the significance of a fair and detailed evaluation of a party's financial circumstances when deciding on security for costs applications.

Orders