Slade v Gea
[2000] NSWSC 806
•9 August 2000
CITATION: Slade & Anor v Gea & Anor [2000] NSWSC 806 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S): SC 10908/00 HEARING DATE(S): 9 August 2000 JUDGMENT DATE: 9 August 2000 PARTIES :
Leslie Slade & Robyn Slade v Luis Gea & Katalina Gea t/as Galaxy FurnitureJUDGMENT OF: Sperling J at 1
COUNSEL : S Y Reuben
A P Healey
(Plaintiff/Opponent)
(Defendant/Claimant)SOLICITORS: Forbes Smith & Company
Michie Shehadie & Co
(Plaintiff/Opponent)
(Defendant/claimant)CATCHWORDS: Practice and procedure - security for costs. LEGISLATION CITED: Justice's Act 1902. CASES CITED: Abdurahman v Field (Unreported) NSWCA 4 March 1986; Rajski v Computer Manufacture & Design Pty Ltd (1983) 2 NSWLR 122; Rajski v Computer Manufacture & Design Pty Ltd (1982) 2 NSWLR 443; Merridee Pastoral Industries Pty Ltd v ANZ Banking Group Limited (1998) 193 CLR 502. DECISION: Notice of motion for security for costs is dismissed - orders made see paragraph 15.
THE SUPREME COURT
CLD10908/00
OF NEW SOUTH WALES
COMMON LAW DIVISION
SPERLING J
Wednesday, 9 August 2000
Leslie SLADE & ANOR v Luis GEA T/AS GALAXY FURNITURE & ANOR
JUDGMENT
1 HIS HONOUR: By summons filed on 17 April 2000, the plaintiffs Leslie Slade and Roslyn Slade appeal in relation to a determination at the Local Court.2 The Local Court proceedings were brought by a Mr and Mrs Gea claiming money for work done in relation to the plaintiff's kitchen. The Slades cross-claimed for damages for alleged poor performance of part of the work and alleged non performance of part of the work. The Geas are defendants to the proceedings in this Court.
3 In the Local Court the learned magistrate made findings as to the credibility of the protagonists. She accepted the Geas as being credible witnesses. She took the contrary view in relation to Slades, making trenchant criticisms of them and expressing the view that they had intentionally attempted to mislead the court. The result of the proceedings before the learned magistrate was that the Geas succeeded in their claim for work done and the Slades failed in their cross-claim for damages. The Slades were ordered to pay a sum of $6,000 odd with interest of $3,000 odd, the total judgment being in the order of $10,000. It is from that determination that the appeal has been brought by summons in this court.
4 The Geas have filed a notice of motion claiming orders as follows:
(1) An order for security of costs in relation to the costs of the appeal in this court;
(2) An order for security in relation to the Geas’ costs in the Local Court;
(3) An order for security in relation to the judgment in the Local Court;
(4) Payment into this court of the amount of the Local Court judgment.5 So far as concerns the application for security in relation to the costs of the appeal, Pt 51B r14 provides that no security for costs shall be required except as may be ordered, and that only in special circumstances.
6 The meaning of special circumstances in this connection may be ascertained by reference to authority in relation to the materially identical provision concerning appeals to the Court of Appeal. In Abdurahman v Field Unreported, NSWCA 4 March 1986. the court said, with apparent approval, that, under the equivalent English rule, special circumstances were not made out simply because an appellant has failed to pay costs ordered by the Court below. The Court went on to say that, generally speaking, the rule here and in England had been limited in application to cases where there was established a prima facie abuse of process, a gross delay in the proceedings of the appeal, or where it is shown that the appeal is manifestly misconceived and hopeless. The Court went on to say later in the judgment that normally the impecuniosity of the appellant is not sufficient to establish special circumstances and to warrant an order for security of costs.
7 In the present application, the Geas use the findings of the learned magistrate concerning the credit of the Slades as the basis for an argument that there is reason to apprehend that the Slades will seek to avoid payment of the costs of the appeal in the event that such costs are awarded against them. I do not share that apprehension.
8 I should say that as part of the argument, the Geas refer to a failure on the part of Mr Slade to pay costs in the sum of $450 which were awarded to the Geas on an application in the Local Court for an order for indemnity costs. Mr Slade said, in his evidence here, that he believed that liability for those costs was subsumed in the appeal. In view of s 107 of the Justice’s Act , he may be right. But, even if he is mistaken, his view, for a lay person, could not be seen as unreasonable. I accept what he says and would not infer that he has wilfully sought to avoid a payment which he believes he is liable to make immediately.
9 It was faintly argued that the appeal is futile, particularly having regard to the limitation on the appeal in relation to questions of law. It is not, however, for the court to endeavour to evaluate, unaided, the merits, in the relevant sense, of the appeal.
10 I am not satisfied that the defendants have established special circumstances as a condition for an order for security for costs of the appeal.
11 So far as the balance of the notice of motion is concerned, the only possible basis for what is sought is the inherent power of the court to order security. The power is to be exercised, having regard to the court’s general inherent power to regulate its own practice and procedure to procure the proper and effective administration of justice and to prevent abuse of process: Rajski v Computer Manufacture and Design Pty Ltd ; (1983) 2 NSWLR 122 and (1982) 2 NSWLR 443 at 447-8. Merridee Pastoral Industries Pty Ltd v ANZ Banking Group Limited . (1998) 193 CLR 502, per Kirby J.
12 I find it a novel proposition to suggest that this court would exercise its inherent powers by ordering security for a judgment and costs in another court. That seems to me to be beyond the proper ambit of the proper exercise of this court’s inherent power to regulate its own practice and procedure.
13 Furthermore, it is provided by s 107 of the Justices Act that the execution of an order of the Local Court is stayed when a notice of appeal is filed. The substance of what is sought in the balance of the notice of motion is a mandatory order securing compliance with orders of the Local Court which are stayed by the notice of appeal. That is inconsistent with the legislative intent of s 107 that judgments and orders the subject of appeal are suspended pending the appeal. That is an important discretionary consideration.
14 For those reasons, the relief sought in the balance of notice of motion is refused, and the notice of motion will be dismissed.
15 The orders I make are as follows: The notice of motion filed on 10 July 2000 is dismissed. The defendant/applicants are ordered to pay the plaintiff/respondents’ costs of the notice of motion. The plaintiffs have leave to file an amended summons. All parties may have access to the Local Court file when produced under subpoena.
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