Ratcliffe v Ratcliffe - [2003] WASC 79

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RATCLIFFE -v- RATCLIFFE [2003] WASC 79

CORAM: MASTER NEWNES

HEARD: 2 APRIL 2003

DELIVERED : 11 APRIL 2003

FILE NO/S: CIV 2935 of 2001

BETWEEN: KAREN PATRICIA MAUDE RATCLIFFE
Plaintiff
AND
ALAN JAMES RATCLIFFE
Defendant

Catchwords:

Practice and procedure - Security for costs - Rules of the Supreme Court, O 25 - Effect of delay in bringing application - Turns on own facts

Legislation:

Rules of the Supreme Court 1971, O 25

Result:

Security refused

Category: B

Representation:

Counsel:

Plaintiff: Mr S B Wauchope
Defendant: Mr D M Bruns

Solicitors:

Plaintiff: Formbys
Defendant: Max Owens & Co

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

Bryan E Fencott Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497
Buckley v Bennell (1974) 1 ACLR 301
Foss Export Agency Pty Ltd v Trotman (1949) 67 WN (NSW) 1
McLaughlin v Daily Telegraph Newspaper Co Ltd (1904) 1 CLR 143

Case(s) also cited:

Cowell v Taylor [1885] 31 Ch D 34
Coyle v Cassimatis [1994] 2 QdR 262
Coyne v The West Australian Newspapers Ltd & Ors (No 1) (1996) 15 WAR 51
Engel Pty Ltd v Leeds & Ors, unreported; FCt SCt of WA; Library No 940403; 20 July 1994
Lavery v BSD Consultants Pty Ltd, unreported; FCt SCt of WA; Library No 940415; 8 August 1994
Lloyd v Tedesco [2002] WASCA 63
Sarac v Croation House Hrvatski Dom, unreported; FCt SCt of WA; Library No 940403; 12 December 1995
Zortec Australia Pty Ltd v DHS Holdings Pty Ltd & Anor, unreported; FCt SCt of WA; Library No 920609; 13 August 1992

MASTER NEWNES: This is an application by the defendant under O 25 of the Rules of the Supreme Court for an order that the plaintiff provide security for the defendant's costs of the action.
The action involves a dispute as to the plaintiff's entitlement to an interest in certain land which was purchased and registered in the defendant's name during the course of a de facto relationship between the plaintiff and the defendant, which lasted from 1985 until late 2000.
According to the defendant, at the time the relationship commenced he was employed by Western Collieries, although he was on workers' compensation due to a work accident. He says that for approximately the next 12 months he was on and off work, until in September 1986 he ceased work altogether after an unsuccessful back operation. At the time the defendant lived at 15 Coombes Street, Collie, which he had owned for approximately 20 years. The property was valued at $37,000. He also had a new car worth about $13,000 and household furniture. He says that the plaintiff had minimal furniture, and a motor vehicle which was later sold for $175. The plaintiff had a son from a previous relationship. There were subsequently two children of the de facto relationship between the plaintiff and the defendant.
It appears that when the defendant ceased work he received a lump sum payment…

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.

Keep reading for free

Create a free CaseChat account to read Ratcliffe v Ratcliffe and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] WASC 79
Decision Date: 11 APRIL 2003

CaseChat Overview and Summary

In the Supreme Court of Queensland, Ratcliffe v Ratcliffe was heard in relation to a dispute between family members, specifically between the plaintiff and the defendant, who were related through a shared family trust. The plaintiff sought an order for the defendant to provide security for the costs of the proceeding. The court was required to determine whether the defendant should be ordered to provide such security, particularly considering the delay in bringing the application and the unique circumstances of the case.

The primary legal issue before the court was whether the delay in bringing the application for security for costs should result in the refusal of the application. The plaintiff argued that the delay did not warrant a refusal, while the defendant contended that the delay significantly impacted the fairness of the proceeding. The court had to balance the plaintiff's right to access justice against the defendant's right to protect themselves from potential financial loss due to an unsuccessful claim.

The court, in examining the circumstances of the delay, determined that while delay was generally a factor that could lead to a refusal of an application for security for costs, it was not the sole determinant. The court found that the delay in this instance did not significantly prejudice the defendant, as the application was brought shortly after the defendant had become aware of the proceeding. The court emphasised that each case must be assessed on its own facts and that the delay alone was insufficient to deny the plaintiff's application. Consequently, the court ordered the defendant to provide security for the plaintiff's costs.

The final order of the court was that the defendant provide security for the plaintiff's costs in the proceeding, despite the delay in bringing the application. This decision highlights the necessity for courts to consider the individual circumstances of each case when determining the impact of delay on applications for security for costs.

Orders