Romeo v Wesley College
[2015] WASCA 52
•17 MARCH 2015
ROMEO -v- WESLEY COLLEGE [2015] WASCA 52
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 52 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:146/2014 | 5 MARCH 2015 | |
| Coram: | NEWNES JA | 17/03/15 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appellant to provide security for costs of $12,000 by 3 April 2015 Appeal dismissed if security is not provided | ||
| B | |||
| PDF Version |
| Parties: | VINCENT JIM ROMEO KAREN LEE ROMEO WESLEY COLLEGE |
Catchwords: | Practice and procedure Security for costs of appeal Relevant principles Security ordered Turns on own facts |
Legislation: | Nil |
Case References: | Brundza v Robbie & Co [No 2] [1952] HCA 49; (1952) 88 CLR 171 Commonwealth Bank of Australia v Eise (1991) 6 ACSR 1 Mann v Dabelstein [2006] WASCA 176 Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ROMEO -v- WESLEY COLLEGE [2015] WASCA 52 CORAM : NEWNES JA HEARD : 5 MARCH 2015 DELIVERED : 17 MARCH 2015 FILE NO/S : CACV 146 of 2014 BETWEEN : VINCENT JIM ROMEO
- First Appellant
KAREN LEE ROMEO
Second Appellant
AND
WESLEY COLLEGE
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WAGER DCJ
Citation : ROMEO -v- WESLEY COLLEGE [2014] WADC 152
File No : APP 41 of 2014
Catchwords:
Practice and procedure - Security for costs of appeal - Relevant principles - Security ordered - Turns on own facts
Legislation:
Nil
Result:
Appellant to provide security for costs of $12,000 by 3 April 2015
Appeal dismissed if security is not provided
Category: B
Representation:
Counsel:
First Appellant : No appearance
Second Appellant : No appearance
Respondent : Mr A J Prentice
Solicitors:
First Appellant : No appearance
Second Appellant : No appearance
Respondent : Mossensons
Case(s) referred to in judgment(s):
Brundza v Robbie & Co [No 2] [1952] HCA 49; (1952) 88 CLR 171
Commonwealth Bank of Australia v Eise (1991) 6 ACSR 1
Mann v Dabelstein [2006] WASCA 176
Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
1 NEWNES JA: On 5 March 2015, I ordered the appellants to provide security for the respondent's costs of the appeal in the sum of $12,000 on or before 3 April 2015, by payment of that sum into court unless the parties can agree on arrangements for it to be paid into an interest bearing account, and that in default of payment the appeal be dismissed.
2 I said I would provide reasons for my decision in due course. The following are the reasons.
Background
3 The respondent brought proceedings in the Magistrates Court against the appellants claiming outstanding school fees. The appellants defended the claim, contending that there had been a total failure of consideration as the respondent had failed to prevent bullying of the appellants' child while he attended the school. The appellants counterclaimed for the school fees they had paid to the respondent.
4 The appellants failed to appear at the hearing on 20 December 2013 and judgment was entered for the respondent for the sum of $39,896.94 plus interest and costs. The appellants' counterclaim was dismissed. A subsequent application by the appellants to set aside the judgment was dismissed by a different magistrate who concluded that the appellants' defence and counterclaim had no merit. An appeal to the District Court from the refusal to set aside the judgment was dismissed by Wager DCJ. The appellants have now appealed to this court from the decision of Wager DCJ.
5 I should note that the appellants were self-represented in the proceedings below, as they are in this court. For reasons which have not been explained, they did not appear on the hearing of this application.
The relevant principles
6 The principles to be applied on an application of this kind are well-established. Under r 44(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA), the court has a very wide discretion to make an order for security for the costs of an appeal: Mann v Dabelstein [2006] WASCA 176 [16].
7 The purpose of an order for security for costs is protective, so as to ensure that the primary purpose of an award of costs (that is, indemnification of the successful party) is achieved: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [67]. There is an obvious injustice to a respondent who, having been successful on the merits at first instance, is compelled to contest the matter for a second time without a probability of obtaining their costs if ultimately successful. In exercising the discretion to make an order for security for costs, however, the court seeks to achieve a balance between ensuring that adequate and fair protection is provided to the respondent, and avoiding injustice to an impecunious appellant by unnecessarily shutting them out of the appeal.
8 The factors which are relevant on an application by a respondent for security for the costs of an appeal cannot be stated exhaustively but will ordinarily include:
(a) whether the appellant is likely to be able to satisfy an order for costs if the appeal is unsuccessful;
(b) the appellant's prospects of success on the appeal;
(c) the fact the appellant has already lost at first instance on the merits, that being a circumstance which favours the exercise of the discretion in favour of an order for security for costs;
(d) whether the appellant would be shut out of the appeal if security for costs were ordered; and
(e) whether there has been any delay in the respondent filing the application for security for costs.
9 Where an order for security for costs is made, the amount of the security to be provided by an appellant must be related to the costs likely to be incurred by the respondent on the appeal, but the court does not endeavour to give a complete and certain indemnity to the respondent: Brundza v Robbie & Co [No 2] [1952] HCA 49; (1952) 88 CLR 171, 175. If the appellant is impecunious, the security ordered should not be greater than is absolutely necessary: Commonwealth Bank of Australia v Eise (1991) 6 ACSR 1, 3 - 4; Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241 [9].
The disposition of the application
10 It appears from an affidavit filed on behalf of the respondent that a search at Landgate has revealed there is no land registered in the name of either of the appellants. There is also correspondence attached to the affidavit in which the appellants perfunctorily rejected a request for evidence as to their capacity to satisfy an order for costs if the appeal were to be unsuccessful.
11 In addition, the respondent has deposed to unsuccessful efforts it has made to recover the sum of $39,896.94 which the appellants were ordered to pay in the Magistrate Court proceedings. The respondent says that as the appellants failed to pay the judgment sum, a Property Seizure and Sale Order was issued to recover it. The bailiff subsequently informed the respondent's solicitors that three motor vehicles had been seized. The first-named appellant told the respondent's solicitors that the vehicles did not belong to the appellants. The vehicles have since been released from seizure.
12 The appellants have put nothing before the court to indicate their financial capacity to meet a costs order. There is, of course, no obligation on them to do so. However, where there is evidence to suggest that an appellant would be unable to meet a costs order if the appeal were to be unsuccessful and the appellant has declined to provide evidence to the contrary, the court will more readily infer that the appellant lacks the necessary financial capacity.
13 On what is before me, I am satisfied that the appellants are unlikely to be able to satisfy an order for costs if the appeal is unsuccessful.
14 In relation to other relevant factors, there is no question of unreasonable delay by the respondent in making the application for security for costs. The appeal notice was filed on 27 October 2014 and notice was given to the appellants by letter dated 22 December 2014 that the respondent would seek security for costs. The application for security for costs was filed on 8 January 2015, at which time the appellants' case had not been filed. (It has still not been filed.) There is also no evidence that the appellants would be shut out of the appeal if an order for security for costs were made. There is no evidence as to what financial resources, by way of loan or otherwise, might be available to the appellants. In relation to the appellants' prospects of success on the appeal, any assessment on an application of this sort must be of a preliminary kind. My preliminary view, based on the limited material before me, is that the appellants do not appear to have a strong case.
15 It is also a relevant consideration that the respondent has an unsatisfied judgment in its favour and that it has already incurred significant costs in the proceedings.
16 In the circumstances, I consider it is appropriate that the appellants provide security for the costs of the appeal.
17 The question then is the amount of the security that should be ordered. I have considered the calculation of the amount of $20,000 set out in an affidavit filed on behalf of the respondent, being the amount sought by way of security. Having regard to the nature of the appeal as it currently appears, that seems to be too high. The appeal seems to turn on points that are relatively short and not of particular complexity. In my opinion, an appropriate sum by way of security would be $12,000.
Conclusion
18 It is for those reasons I ordered that the appellants are to provide security for costs in the sum of $12,000 on or before 3 April 2015, by payment of that sum into court unless the parties can agree on arrangements for it to be paid into an interest bearing account. If the sum of $12,000 is not paid by the appellants either into court or into an agreed account by 3 April 2015, the appeal will stand dismissed and the appellants are to pay the respondent's costs of the appeal to be taxed. Pending payment of the security, the appeal is stayed.
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