Neylon v Bluegrass Developments P/L

[2002] QCA 2

[2002] QCA 2

COURT OF APPEAL

de JERSEY CJ
DAVIES JA
AMBROSE J

Appeal No 8934 of 2001

KEVIN DAVID NEYLON  Appellant (Plaintiff)

and

BLUEGRASS DEVELOPMENTS PTY LTD       Respondent (Defendant)

and

RAYMOND WILLIAM CARLE                Respondent (Defendant)

and

MARGARET VERONICA DAWSON     Not Party to Appeal (Defendant)

and

ANNE DENISE CARLE  Respondent (Defendant)

BRISBANE

..DATE 30/01/2002

JUDGMENT

DAVIES JA:  The applicant, Kevin David Neylon, who appears in person, in his application to this Court seeks numerous orders.  Many of them are orders which, even if he were successful in the substantive relief which he seeks, would not be appropriate.

However the application in substance is one for an extension of time within which to apply for leave to appeal and for leave to appeal against an order made in the District Court on 6 June 2001. 

The order made on that date was one dismissing an application for discharge of an order for security for costs.  The learned District Court Judge also ordered that should such security not be provided on or before 27
August 2001, the appeal be struck out.  He also made an order for costs.

The order for costs was one made on 17 April 2001 by the same District Court Judge, ordering the applicant to pay the sum of $5000 by way of security for the costs of an appeal to the District Court from a judgment in the Magistrates Court.

The application, which was dismissed on 6 June 2001, was one which was said to be based on Rule 668 or Rule 675 of the Uniform Civil Procedure Rules. It was conceded on the applicant's behalf before the learned District Court Judge on the hearing of that application that the order for security for costs of 17 April was correctly made. The application was one to vary or extinguish the order on the basis of matters discovered since the making of the order, hence the reliance on Rule 668.

However the learned District Court Judge held that all of the matters referred to in the documents put before him were within the knowledge of the applicant well prior to 17
April 2001. 

This finding seems to be plainly correct.  Consequently his Honour's rejection of the argument based on Rule 668 was in my opinion also correct.

His Honour also rejected an argument based on Rule 675 because it required special circumstances and his Honour was of the opinion that there were none here.  As his Honour pointed out, the circumstances are unchanged since 17 April 2001.  I cannot be satisfied that his Honour was wrong in concluding that there were no special circumstances requiring reconsideration of the matter.

I have said that the matter was said to have been based on Rule 668 and Rule 675.  In truth the application was one under Rule 772, the security having been ordered in respect of an appeal (see also Rule 785).  However the principles in this respect are at least no more favourable to the applicant in an application under Rule 772 than in an application under Rule 668 or Rule 675.

By his outline of argument, and in the oral submissions which he advanced to the Court today, Mr Neylon appears now to seek to revisit the question whether the order for security for costs made on 17 April was correctly made. 

However in my opinion it is not appropriate for this Court to reconsider that question now.  There must always be a point in litigation in which a party is prevented from raising for the first time a matter of which he or she has long been aware.  In my opinion that time had passed, at least so far as an application for security is concerned, by the time the matter came before Judge Boulton.

Moreover, in view of the concession made by the applicant's solicitor on 6 June 2001, to which I have already referred, I do not think he should be permitted to raise these questions now.

I could not be satisfied that the order made on 17 April was attended with sufficient doubt to warrant it being reconsidered.  The learned primary Judge plainly considered all relevant circumstances, including the strength of the applicant's case and the history of the proceedings before him.  I am unable to see any error in the exercise of the discretion which his Honour then exercised.

Accordingly I would refuse the application for extension of time within which to seek leave to appeal to this Court from the order made on 6 June 2001.

THE CHIEF JUSTICE:  I agree.

AMBROSE J:  I agree.

THE CHIEF JUSTICE:  The application is refused.

Do you wish to say anything about costs, Mr Neylon?

...

THE CHIEF JUSTICE:  One's only reservation in relation to ordering costs, adopting the appropriate rational approach, could conceivably concern the late delivery of the respondent's outline.  That was practically inexcusable, Ms Bowskill.  Fortunately, it has not imperiled this morning's hearing or affected its proceeding properly in any way.

Again being rational, however, it is difficult to see why in those circumstances the late delivery of that outline should affect the position in relation to costs.  The applicant's impecuniosity should not affect what is done in relation to costs in these circumstances.

The order of the Court is that the application be dismissed, with costs to be assessed.

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