Thompson v Robinson - [2005] QCA 387

SUPREME COURT OF QUEENSLAND

CITATION:

Thompson v Robinson [2005] QCA 387

PARTIES:

COLIN JAMES THOMPSON
(plaintiff/respondent/applicant/respondent)
v
ROBERT RAYMOND LLOYD ROBINSON
(defendant/appellant/applicant/respondent)

FILE NO/S:

Appeal No 30 of 2005
DC No 3122 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for Security for Costs
Application to Strike Out

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

11 October 2005

JUDGES:

McMurdo P, Keane JA and Douglas J
Judgment of the Court

ORDER:

1.   Mr Robinson's application filed on 15 September 2005      is refused with costs to be assessed
2.   Mr Thompson's application filed on 3 October 2005 is      granted with costs to be assessed
3.   The appeal is dismissed with costs to be assessed

CATCHWORDS:

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - SECURITY FOR COSTS - appellant ordered to pay security for costs of appeal by primary judge - appellant failed to satisfy security for costs order within time - appellant applied to Court of Appeal for variation of security for costs order - Court of Appeal refused application - appellant subsequently sought to provide security to Deputy Registrar (Appeals) - Deputy Registrar (Appeals) refused to accept security - appellant made further application to Court of Appeal to vary security for costs order - respondent's legal costs up to present all unrecovered and exceed primary judgement sum - respondent's current costs incurred in relation to the appeal already close to amount of original security ordered - respondent's costs if appeal proceeds would exceed original security ordered - no satisfactory explanation by appellant as to why security he is able to give now was not available in time ordered - no evidence provided by appellant that he has reasonable prospects of shortly obtaining further funds - arguments appellant wishes to agitate on appeal do not immediately appear plainly correct - whether appellant has shown any good reason why security for costs order should be varied - whether security for costs order should be varied

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - STAY OF PROCEEDINGS - WHEN REFUSED - payment of monies owing under primary judgement by appellant stayed pending hearing of appeal within six months - stay order automatically lifted if appeal not heard in that time - appeal not heard within six months - appellant applied to Court of Appeal for variation of the stay order - application dismissed - appellant made further application to Court of Appeal for variation of stay order - whether application competent - whether stay order should be varied

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - POWERS OF COURT - OTHER MATTERS - appellant dilatory in prosecuting appeal to the prejudice of respondent - respondent incurred significant costs in two interlocutory applications pending appeal - respondent denied access to half the proceeds of primary judgement sum for six months - arguments appellant wishes to agitate on appeal do not…

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.

Continue reading Thompson v Robinson

Details

AGLC: Thompson v Robinson [2005] QCA 387
Case: [2005] QCA 387
Decision Date: 21 October 2005

CaseChat Overview and Summary

In the case of Thompson v Robinson, the appellant, Mr Thompson, appealed against a decision made by the primary judge, which included an order for security for costs of appeal and a stay of proceedings. Mr Robinson, the respondent, filed an application to enforce the security for costs order, which Mr Thompson did not satisfy within the stipulated time. Mr Thompson subsequently applied to the Court of Appeal for a variation of the security for costs order, which was refused. Mr Thompson then attempted to provide security to the Deputy Registrar (Appeals), but this was also refused. The respondent’s legal costs incurred to date had not been recovered and exceeded the amount of the primary judgment sum, with further costs of the appeal nearing the amount of the original security ordered. The appeal had not been heard within the six-month period stipulated by the stay order, leading to further applications by Mr Thompson to vary the stay order, which were also dismissed.

The central legal issues the court had to determine were whether Mr Thompson had provided a satisfactory explanation for the delay in providing the security for costs and if he could demonstrate reasonable prospects of obtaining further funds in the future. Additionally, the court had to consider whether Mr Thompson had shown any good reason for varying the security for costs order and whether the stay order should be varied. Furthermore, the court had to assess whether Mr Thompson's conduct in prosecuting the appeal was dilatory and prejudicial to Mr Robinson, and if Mr Thompson could fully compensate Mr Robinson should the appeal be unsuccessful, warranting the appeal's dismissal.

The Court of Appeal found that Mr Thompson had not provided a satisfactory explanation for the delay in providing the security for costs and had not demonstrated reasonable prospects of obtaining further funds. The arguments Mr Thompson wished to agitate on appeal did not immediately appear plainly correct, and there was no evidence that he could fully compensate Mr Robinson should the appeal be unsuccessful. The Court held that Mr Thompson had not shown any good reason for varying the security for costs order or the stay order. Additionally, the Court found that Mr Thompson had been dilatory in prosecuting the appeal, causing prejudice to Mr Robinson, who had incurred significant costs in two interlocutory applications pending the appeal. Consequently, the Court dismissed the appeal with costs to be assessed.

In light of the findings, the Court of Appeal refused Mr Robinson’s application for variation of the security for costs order with costs to be assessed. Mr Thompson’s application filed on 3 October 2005 was granted with costs to be assessed, and the appeal was dismissed with costs to be assessed.

Orders

Orders of the court

1. Mr Robinson's application filed on 15 September 2005 is refused with costs to be assessed

2. Mr Thompson's application filed on 3 October 2005 is granted with costs to be assessed

3. The appeal is dismissed with costs to be assessed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Thompson v Robinson [2005] QCA 387
PARTIES:	COLIN JAMES THOMPSON (plaintiff/respondent/applicant/respondent) v ROBERT RAYMOND LLOYD ROBINSON (defendant/appellant/applicant/respondent)
FILE NO/S:	Appeal No 30 of 2005 DC No 3122 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for Security for Costs Application to Strike Out
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	21 October 2005
DELIVERED AT:	Brisbane
HEARING DATE:	11 October 2005
JUDGES:	McMurdo P, Keane JA and Douglas J Judgment of the Court
ORDER:	1. Mr Robinson's application filed on 15 September 2005 is refused with costs to be assessed 2. Mr Thompson's application filed on 3 October 2005 is granted with costs to be assessed 3. The appeal is dismissed with costs to be assessed
CATCHWORDS:	APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - SECURITY FOR COSTS - appellant ordered to pay security for costs of appeal by primary judge - appellant failed to satisfy security for costs order within time - appellant applied to Court of Appeal for variation of security for costs order - Court of Appeal refused application - appellant subsequently sought to provide security to Deputy Registrar (Appeals) - Deputy Registrar (Appeals) refused to accept security - appellant made further application to Court of Appeal to vary security for costs order - respondent's legal costs up to present all unrecovered and exceed primary judgement sum - respondent's current costs incurred in relation to the appeal already close to amount of original security ordered - respondent's costs if appeal proceeds would exceed original security ordered - no satisfactory explanation by appellant as to why security he is able to give now was not available in time ordered - no evidence provided by appellant that he has reasonable prospects of shortly obtaining further funds - arguments appellant wishes to agitate on appeal do not immediately appear plainly correct - whether appellant has shown any good reason why security for costs order should be varied - whether security for costs order should be varied APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - STAY OF PROCEEDINGS - WHEN REFUSED - payment of monies owing under primary judgement by appellant stayed pending hearing of appeal within six months - stay order automatically lifted if appeal not heard in that time - appeal not heard within six months - appellant applied to Court of Appeal for variation of the stay order - application dismissed - appellant made further application to Court of Appeal for variation of stay order - whether application competent - whether stay order should be varied APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - POWERS OF COURT - OTHER MATTERS - appellant dilatory in prosecuting appeal to the prejudice of respondent - respondent incurred significant costs in two interlocutory applications pending appeal - respondent denied access to half the proceeds of primary judgement sum for six months - arguments appellant wishes to agitate on appeal do not…