Schuller v S J Webb Nominees Pty Ltd - [2015] SASC 8

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
SCHULLER v S J WEBB NOMINEES PTY LTD
[2015] SASC 8
Reasons for Decision of The Honourable Justice Nicholson
29 January 2015
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS
PROCEDURE - COSTS - SECURITY FOR COSTS - POVERTY
The applicant (respondent to the appeal) has sought an order for security for its costs of an appeal from a decision of the District Court.
Whether an order for security for costs would stultify the appeal given the appellant's impecuniosity.
Held:
1. The application is allowed.
2. The appellant has failed to discharge the onus of proving that an order for security would stultify the appeal.
3. The further prosecution of the appeal is stayed until the appellant pays the sum of $15,000 into Court to secure the respondent's costs of the appeal.
Supreme Court Civil Rules 2006 Rule 194, Rule 295, referred to.
Dagenham Nominees Pty Ltd (t/as Banwell Marine Service) v Shanks (2011) 110 SASR 577, [2011] SASC 163; Morgan v WorkCover Corporation [2012] SASC 190; Sands v State of South Australia [2013] SASC 105; Ramstrom v Baldino [2014] SASC 29; M, PJ v W, JW [2014] SASC 87; Essential Beauty Franchising (WA) Pty Ltd & Ors v Pilton Holdings Pty Ltd & Ors (No 3) [2014] SASC 148; Diakos v Mason [2010] SASC 108; Citicorp Australia Ltd & Ors v Cirillo & Anor [2003] SASC 204; Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153, (2003) 130 FCR 317; Del Bosco v Outtrim [2008] NSWSC 105; Kirkham v Tassone [2015] SASC 6, considered.

SCHULLER v S J WEBB NOMINEES PTY LTD
[2015] SASC 8
NICHOLSON J.
Introduction

These reasons concern an application by the respondent to an appeal for an order for security for its costs of the appeal. I will refer throughout to the applicant on this application as the respondent and to the respondent to this application as the appellant.
The appellant failed with her claim in the District Court for damages for personal injury allegedly caused by the negligence of the respondent, the proprietor of a hotel. The appellant’s case, at trial, was that she had become intoxicated at the hotel, danced on a chair in the saloon bar, fell off the chair and badly injured her knee. This occurred on the third occasion that night that the appellant had danced while on the furniture. On each of the three occasions she had been told to stop and get down.
The appellant alleged at trial, and on the appeal maintains, that the respondent breached, in a number of ways, a duty of care owed to her which breaches caused or contributed to the accident such that the respondent should be liable for damages.
The trial Judge held: that no duty of care was owed in the circumstances; that even if a duty had been owed…

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: [2015] SASC 8
Decision Date: 29 January 2015

CaseChat Overview and Summary

In Schuller v S J Webb Nominees Pty Ltd, the appellant, Schuller, sought an appeal against the decision of the primary judge in the Supreme Court of South Australia. The primary judge had ordered Schuller to pay costs to the respondent, S J Webb Nominees Pty Ltd, and Schuller was required to provide security for these costs. Dissatisfied with the decision, Schuller appealed the order for security, arguing that it would stultify the appeal. The appeal was heard in the South Australian Court of Appeal.

The central issue before the court was whether Schuller had demonstrated that the requirement to provide security for costs would stultify the appeal. Schuller argued that the order would have a significant financial impact, potentially preventing him from effectively pursuing the appeal. The respondent, on the other hand, maintained that Schuller had not met the burden of proof required to discharge the onus of proving that an order for security would stultify the appeal.

The Court of Appeal held that Schuller had not discharged the onus of proving that the order for security would stultify the appeal. The court found that Schuller's submissions did not demonstrate that the financial burden of providing security would prevent him from effectively pursuing the appeal. As such, the application to discharge the onus was dismissed. Consequently, the further prosecution of the appeal was stayed until Schuller paid the sum of $15,000 into court to secure the respondent's costs of the appeal.

Orders

Orders of the court

1. The application is allowed.

2. The appellant has failed to discharge the onus of proving that an order for security would stultify the appeal.

3. The further prosecution of the appeal is stayed until the appellant pays the sum of $15,000 into Court to secure the respondent's costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

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Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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