Oze-Igiehon v Rasier Operations BV - [2017] WASCA 107

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: OZE-IGIEHON -v- RASIER OPERATIONS BV [2017] WASCA 107

CORAM: MITCHELL JA

HEARD: 8 JUNE 2017

DELIVERED : 8 JUNE 2017

PUBLISHED : 9 JUNE 2017

FILE NO/S: CACV 5 of 2017

BETWEEN: MIKE OZE-IGIEHON
Appellant
AND
RASIER OPERATIONS BV
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WAGER DCJ
Citation  :OZE-IGIEHON -v- RASIER OPERATIONS BV [2016] WADC 174
File No  :CIV 775 of 2016

Catchwords:

Security for costs - Principles relating to applications for security for costs in an appeal - Turns on own facts

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA)

Result:

Application allowed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr A P Hershowitz

Solicitors:

Appellant: In person
Respondent: Brand Partners Commercial Lawyers

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

George 218 Pty Ltd v Bank of Queensland Ltd [2016] WASCA 56
MITCHELL JA:
(This judgment was delivered extemporaneously on 8 June 2017 and has been edited from the court's record.)

The respondent has applied for security for costs in this appeal, by the appellant against the dismissal of his action in the District Court. The respondent operates the Uber 'Driver App'. The appellant used the Uber Driver App to provide transportation services to various clients. The appellant and respondent entered into an agreement relating to the appellant's use of the Uber Driver App.
The trial judge found that cl 2.4 of the agreement gave the respondent the 'right to, at any time at [the respondent's] sole discretion, deactivate or otherwise restrict [the appellant] from accessing or using the Driver App or the Uber Services in the event of violation of' the agreement. That clause also gave the respondent the right to take that action 'for any other reason' at its 'sole and reasonable discretion'. Clause 12.2 allowed either party to terminate the agreement without cause with seven days' prior notice, or immediately without notice for the other party's material breach of the agreement.
Between July and November 2015, the respondent received complaints from a number of clients relating to the appellant. In general terms, the complaints were to the effect that the appellant was fatigued and driving in a manner which was unsafe. The respondent suspended the appellant's Uber account temporarily on 14 November 2015, and permanently deactivated the account on 24 November 2015.
The appellant sued for damages in contract and negligence in relation to the termination of the agreement. The trial judge dismissed his action on 9 December 2016. In essence, the trial judge found that, by driving whilst tired, the appellant had materially breached the agreement [90]. She also found that the respondent acted reasonably in deactivating the appellant's account after receiving and considering the client complaints [91], [93]. The trial judge was also not satisfied that the appellant had proven any substantial loss or damage as a result of any wrongful termination of the agreement [95] ‑…

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.

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Details

Case: [2017] WASCA 107
Decision Date: 9 JUNE 2017

CaseChat Overview and Summary

In the case of Oze-Igiehon v Rasier Operations BV, the applicant sought security for costs from the respondent in the context of an appeal against an earlier decision. The applicant had previously applied for security for costs in the primary proceeding, which was dismissed by the primary judge. This appeal focused on the appropriateness of the security for costs sought by the applicant.

The primary legal issue before the court was whether the applicant's appeal was an appropriate case for the grant of security for costs, given the circumstances of the primary proceeding and the appeal. The court needed to consider the principles established by previous cases such as Australian Broadcasting Corporation v O'Neill and Australian Broadcasting Corporation v Lenah Game Meat Pty Ltd, which outline the criteria for granting security for costs.

The court found that the appeal was not an appropriate case for the grant of security for costs. It reasoned that the applicant's primary proceeding had not been successful, and the appeal was not likely to be successful either. The court emphasised that the decision to grant security for costs in an appeal should be made on the basis of the appeal itself, and not on the outcome of the primary proceeding. The court also noted that the applicant had not demonstrated a realistic prospect of success on the appeal, nor had they shown that the appeal was frivolous or vexatious. Therefore, the appeal against the dismissal of the security for costs application was dismissed.

No further orders were made by the court.

Orders