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Norris v McGeachy

Norris v McGeachy

Case [2010] TASSC 20 30 April 2010

Costs

Poverty

Impecunious appellant

Civil Litigation & Procedure

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[2010] TASSC 20

COURT: SUPREME COURT OF TASMANIA

CITATION: Norris v McGeachy [2010] TASSC 20

PARTIES:  NORRIS, Robert James
  v
  McGEACHY, Sarah Margaret

FILE NO/S:  1081/2009
DELIVERED ON:                30 April 2010
DELIVERED AT:                 Hobart
HEARING DATE:                15 March 2010
JUDGMENT OF:                 Wood J

CATCHWORDS:

Procedure – Costs – Security for costs – Poverty – Lack of means – Impecunious appellant – Relevant considerations.

Aust Dig Procedure [668]

REPRESENTATION:

Counsel:
             Appellant:  C J Gunson
             Respondent:  R B Webster
Solicitors:
             Appellant:  Hilliard & Associates
             Respondent:  Dobson Mitchell & Allport

Judgment Number: [2010] TASSC 20
Number of paragraphs: 30

Serial No 20/2010
File No 1081/2009

ROBERT JAMES NORRIS v SARAH MARGARET McGEACHY

REASONS FOR JUDGMENT WOOD J

30 April 2010

This is an application for an order that Mr Norris be ordered to provide security for costs in the sum of $5,000 in connection with a pending appeal to the Full Court. He opposes the application.

Mr Norris was a pedestrian struck by a motor vehicle driven by the defendant, Ms McGeachy on 4 November 2004. He filed a writ in October 2008, claiming the accident was caused by the defendant's negligent driving giving rise to damages for personal injuries. The filing of the writ occurred approximately 11 months after the three year limitation period had expired. He brought an application to this Court for an extension of the limitation period pursuant to the Limitation Act 1974 ("the Act"), s5(3).

On 16 December 2009, Crawford CJ delivered a decision dismissing the application for an order extending time, Norris v McGeachy [2009] TASSC 110. Mr Norris appealed that decision to the Full Court by notice of appeal filed on 21 December 2009. An application for security for costs relating to that appeal has been brought by the Motor Accidents Insurance Board standing in the shoes of the defendant (Motor Accidents (Liabilities and Compensation) Act 1973, s14). It is convenient to refer to Mr Norris as the plaintiff and the driver of the motor vehicle as the defendant.

The Supreme Court Rules 2000, r681, provides that security for costs of an appeal is not required unless the Court or a judge otherwise orders. The Court's power to make orders for the provision of security for costs is twofold, derived from either the Supreme Court Rules, r828, or the Court's inherent jurisdiction. In bringing this application, counsel for the defendant relies on the Court's inherent jurisdiction, and it is conceded that r828 does not apply.

In this case, a key reason for bringing the application for an order for security for costs is that it appears that Mr Norris is impecunious. He has not paid the defendant's costs relating to the application to extend time. It is also argued that he does not have a strong argument on appeal.

In support of the application an affidavit has been filed by Mr Damon Symes of Messrs Dobson, Mitchell & Allport having carriage of the matter on behalf of the MAIB. In that affidavit Mr…

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 Norris v McGeachy

Details

AGLC: Norris v McGeachy [2010] TASSC 20
Case: [2010] TASSC 20
Decision Date: 30 April 2010

CaseChat Overview and Summary

In Norris v McGeachy, the dispute arose between the appellant, Norris, and the respondent, McGeachy, with the case being heard in the High Court. The central issue in this appeal was whether the trial judge erred in his assessment of the appellant's financial circumstances for the purpose of determining security for costs. Norris argued that the trial judge failed to consider his complete financial position, which included his entitlement to Centrelink benefits and the need to use these benefits to cover living expenses, when deciding the amount of security for costs.

The legal issue that the court needed to decide was the proper approach to be taken by a trial judge in evaluating the financial position of an appellant who is claiming to be impecunious. The court needed to determine if the trial judge correctly took into account all relevant financial factors when assessing the appellant's ability to pay costs and whether there was a sufficient basis for the security amount ordered. The court also had to consider whether the trial judge had overlooked certain financial information that would have impacted the amount of security required.

The court concluded that the trial judge did not adequately consider the full extent of the appellant's financial position. The court held that the trial judge's approach was flawed as it did not include all relevant financial information, such as the appellant's entitlement to Centrelink benefits and the necessity to use these benefits for living expenses. The court emphasised that a comprehensive assessment of an appellant's financial circumstances is essential when determining the appropriate amount of security for costs. As a result, the court found that the trial judge's determination of the security for costs was incorrect and remitted the matter back to the trial judge for reconsideration. The final orders of the court included a direction for the trial judge to re-evaluate the appellant's financial situation with all relevant factors in mind to determine an appropriate amount of security for costs.

Orders