Sims v Jooste
[2015] WASCA 170
•31 AUGUST 2015
SIMS -v- JOOSTE [2015] WASCA 170
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 170 | |
| THE COURT OF APPEAL (WA) | 31/08/2015 | ||
| Case No: | CACV:128/2014 | 7 AUGUST 2015 | |
| Coram: | BUSS JA BEECH J | 7/08/15 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | DOUGLAS ARTHUR SIMS JAMES CECIL INNES JOOSTE |
Catchwords: | Practice and procedure Appellant ordered by the trial judge to pay the respondent's costs of the action Application for a stay or suspension order Turns on own facts |
Legislation: | Civil Judgments Enforcement Act 2004 (WA), s 15 |
Case References: | Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 Sims v Jooste [No 2] [2014] WASC 373(S) Sims v Jooste [No 2] [2014] WASC 373; (2014) 103 ACSR 269 Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168. |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SIMS -v- JOOSTE [2015] WASCA 170 CORAM : BUSS JA
- BEECH J
- Appellant
AND
JAMES CECIL INNES JOOSTE
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : KENNETH MARTIN J
Citation : SIMS -v- JOOSTE [No 2] [2014] WASC 373
File No : CIV 1991 of 2011
Catchwords:
Practice and procedure - Appellant ordered by the trial judge to pay the respondent's costs of the action - Application for a stay or suspension order - Turns on own facts
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 15
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : No appearance
Respondent : Ms C L Donald
Solicitors:
Appellant : In person
Respondent : Bennett + Co
Case(s) referred to in judgment(s):
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
Sims v Jooste [No 2] [2014] WASC 373(S)
Sims v Jooste [No 2] [2014] WASC 373; (2014) 103 ACSR 269
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168.
1 JUDGMENT OF THE COURT: In CIV 1991 of 2011 the appellant, as plaintiff, sued the respondent, as defendant, for defamation. The appellant alleged that the respondent defamed him on 10 June 2010 by words concerning him which appeared on an internet website known as 'HotCopper'.
2 On 10 October 2014, after a trial in the Supreme Court before Kenneth Martin J, the appellant's action was dismissed. See Sims v Jooste [No 2] [2014] WASC 373; (2014) 103 ACSR 269.
3 On 5 November 2014, the trial judge made detailed orders as to costs, including an order that the appellant pay the respondent's costs of the action, including certain reserved costs, to be taxed if not agreed. See Sims v Jooste [No 2] [2014] WASC 373(S).
4 On 13 October 2014, the appellant filed an appeal notice.
5 On 17 July 2015, the appellant filed an application in the appeal for an 'order of stay on costs until Appeal Judgment'. The application was supported by the appellant's affidavit sworn 17 July 2015.
6 On 24 July 2015, the Court of Appeal Registrar sent a notice to the parties in which she informed them that the appeal had been listed on 7 August 2015 at 11.30 am, or as soon after then as possible, to consider the appellant's application.
7 On 7 August 2015, at 11.39 am, the court sat to hear the appellant's application. The respondent was represented by counsel. There was no appearance by the appellant. We directed the orderly to call the case in the external precincts of the court room. The appellant did not respond. We then ordered that the appellant's application be dismissed and that the appellant pay the respondent's costs of the application, to be taxed if not agreed. We said that later we would publish our reasons for making those orders. These are our reasons.
8 The court has power under s 15 of the Civil Judgments Enforcement Act 2004 (WA) (the Act) to make an order suspending the enforcement of a judgment if there are 'special circumstances' that justify doing so. Alternatively, the court has power under its rules to make an interim order in the form of a stay of execution pending the hearing and determination of the appeal.
9 Although there are no fixed rules as to what constitutes 'special circumstances', the general principles applicable to an application under s 15 of the Act are those described in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308. See Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203. The general principles applicable to an application under the rules for a stay are not materially different. See Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168.
10 In his affidavit sworn 17 July 2015, the appellant deposes, relevantly:
As the Appellant in this Application I will suffer immense disadvantage should a stay not be granted until the Appeal process has been completed because:
a) I will be forced to bankruptcy stultifying the development of Law before the deficiencies of the Judgement and the Orders are tested;
b) The doubt which surrounds the Judgement of the Primary Judge on Section 184 (1) (b) of Australian Corporations and Securities legislation against me when no Section was pleaded by the Respondent at trial, and
c) The admission by Respondent that he had used a fake identity (an offence) to publish allegations against me designed to harm me, and
e)[sic] Respondent's claim that a company in FREEZONE PTY LTD associated to … me had engaged in breach of fiduciary duty by me when there was no such participation by FREEZONE PTY LTD in any such allegation, and
d)[sic] Respondent has no capacity to pay costs, or repay costs to me following a successful Appeal either in this Court of Appeal or the High Court of Australia.
By Contract dated 2 October 2007 between myself and Suda Ltd, I hold an IRREVOCABLE indemnity against all and any costs incurred or accrued arising from any allegations or claims against … me as Officer or former Officer of Suda Ltd and as such the IRREVEVOCABLE indemnity is final and cannot be disturbed rendering Suda Ltd liable.
The Respondents father, Peter Innes Jooste QC issued me an indemnity, release and apology from the defence allegations of the Respondent on the 16th November 2010 and as such is also liable as to the costs.
11 The affidavit annexes:
(a) a written contract, described as an executive employment agreement, dated 2 October 2007 between Eastland Medical Systems Ltd (Eastland) and the appellant;
(b) a handwritten document, described as a heads of agreement, in relation to Supreme Court action CIV 1737 of 2010; and
(c) a handwritten document headed 'Apology', dated 16 April 2010, in relation to Eastland which appears to have been signed by Peter Jooste.
12 The costs which the trial judge ordered the appellant to pay to the respondent would, if paid, be recoverable by him if the appeal is allowed and his Honour's costs order is set aside.
13 The appellant's statement in his affidavit to the effect that he will be 'forced to bankruptcy' if he has to pay the costs is merely an assertion. The appellant does not provide any details of his assets and liabilities or his income and expenses.
14 Similarly, the appellant's statement in his affidavit that the respondent has 'no capacity to … repay costs to me following a successful Appeal' is merely an assertion. It is not supported by any particulars as to the respondent's financial condition.
15 By cl 14.1 of the written contract described as an executive employment agreement, Eastland indemnifies the appellant against, relevantly, any legal proceedings and any claims of any kind 'made against, suffered, paid or incurred' by the appellant 'pursuant to, arising from or in any way connected with' the appellant's status as an officer or employee of Eastland and against 'any act or omission' by the appellant 'directly or indirectly … connected therewith'. The appellant does not explain how or in what manner the indemnity is engaged in relation to the trial judge's costs order. It is not apparent, from the material before the court on this application, that the indemnity is engaged. In any event, there is no evidence that the appellant has sought an indemnity from Eastland and no evidence as to its ability to satisfy the costs order. Moreover, the existence of a right on the appellant's part to seek an indemnity from another party in relation to his liability for costs is not, in the circumstances, a proper ground for staying execution of the costs order as between the appellant and the respondent.
16 The appellant does not explain how or in what manner the heads of agreement is pertinent to his application. It is not apparent, on the material before the court in this application, that the heads of agreement is relevant.
17 The apology does not contain an indemnity. It is not apparent, on the face of the document, how the document renders Mr Peter Jooste QC liable for the costs in question. The appellant's assertion that Mr Jooste QC is liable is unexplained.
18 The appellant's application does not have a proper foundation in fact.
19 There are no 'special circumstances' that justify the making of a suspension order under s 15 of the Act. Also, it is not in the interests of justice for the court to exercise the power under its rules to make an interim order in the form of a stay of execution pending the hearing and determination of the appeal.
20 Accordingly, we dismissed the application and ordered the appellant to pay the respondent's costs of the application, to be taxed if not agreed.
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