JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TRAYNOR -v- CUNNINGHAM [2017] WASCA 125
CORAM: MITCHELL JA
HEARD: 8 JUNE 2017
DELIVERED : 13 JULY 2017
FILE NO/S: CACV 10 of 2017
BETWEEN: SIMON TRAYNOR
First Appellant
PETER JAMES CLARK
Second AppellantGLENN ALEXANDER CALDWELL
Third AppellantAND
ROBERT LEE CUNNINGHAM
First RespondentCATHERINE MARY ATOMS
Second RespondentTHE STATE OF WESTERN AUSTRALIA
Third Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :DAVIS DCJ
Citation :CUNNINGHAM -v- TRAYNOR [2016] WADC 168
File No :CIV 3389 of 2011
Catchwords:
Practice and procedure - Application for security for costs - Impecunious appellants - Whether order for security for costs would stultify the appeal - Whether prospects of a costs order against union funding the appeal would make an order for security for costs redundant - Turns on own facts
Legislation:
Nil
Result:
Application for security for costs granted
Category: B
Representation:
Counsel:
First Appellant : Mr A Metaxas
Second Appellant : Mr A Metaxas
Third Appellant : Mr A Metaxas
First Respondent : Mr M D Cuerden SC and with him Mr T J Porter
Second Respondent : Mr M D Cuerden SC and with him Mr T J Porter
Third Respondent : No appearance
Solicitors:
First Appellant : Metaxas & Hagar
Second Appellant : Metaxas & Hagar
Third Appellant : Metaxas & Hagar
First Respondent : Maurice Blackburn
Second Respondent : Maurice Blackburn
Third Respondent : No appearance
Case(s) referred to in judgment(s):
Amaca Pty Ltd v Novek [2009] NSWCA 50
Attorney General v Michael [1999] WASCA 181
BPM Pty Ltd v HPM Pty Ltd (1996) 131 FLR 339
CMA Recycling Victoria Pty Ltd v Doubt Free Investments Pty Ltd (No 2) [2013] TASFC 10
Cunningham v Traynor [2016] WADC 168
Director, Office of the Fair Work Building Industry Inspectorate v CFMEU (No 2) [2013] FCAFC 34
George 218 Pty Ltd v Bank of Queensland Ltd [2016] WASCA 56
Gore v Justice Corporation Pty Ltd [2002] FCAFC 83; (2002) 119 FCR 429
Green v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105
Knight v FP Special Assets Ltd (1992) 174 CLR 178
Mann v Dabelstein [2006] WASCA 176
Murphy v Young & Co's Brewery [1997] 1 WLR 1591
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
The State of Western Australia v Cunningham [2017] WASCA 119
MITCHELL JA:
Summary
Dr Cunningham and Ms Atoms, who are the first and second respondents to this appeal, seek an order for security for costs against the appellants.
Dr Cunningham and Ms Atoms successfully sued the appellants and the State of Western Australia in the District Court of Western Australia. The action alleged tortious conduct arising out of their interactions with police in the early hours of 2 November 2008. During that incident, a Taser was deployed against both Dr Cunningham and Ms Atoms. They were placed under…
Continue reading Traynor v Cunningham
Sign in free to access the full text
- AGLC
- Traynor v Cunningham [2017] WASCA 125
- Case
- [2017] WASCA 125
- Decision Date
CaseChat Overview and Summary
The court considered whether the appeal would be frustrated by an order for security for costs, given that the appellants were impecunious. The court noted that there was no reason to believe that the decision in Knight closed the door to categories of third parties who may be liable for costs of litigation. However, the court also recognised that the prospect of a costs order being made against the union if the appeal was unsuccessful was largely speculative at that stage, and was not such as to make an order for security for costs redundant. The court further noted that the fact that the appeal was against a decision in primary proceedings which the respondent chose to institute against an impecunious appellant was a factor counting against an order for security for the costs of an appeal.
The court ultimately refused the application for security for costs, holding that the balance of relevant factors required such a refusal. The court emphasised the importance of not depriving an impecunious party who had not instituted the primary proceedings of the capacity to challenge an adverse decision in the primary proceedings by way of a genuine appeal that had reasonable prospects of success. This decision was in line with the principle that an appeal is seen as a separate proceeding from the original action in which the orders appealed against were made.
No orders were made in favour of either party regarding security for costs.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
That is not to determine that an application for costs against the union would have no prospects of success if the police defendants were unsuccessful in the appeal. As the Full Court of the Federal Court noted in Gore v Justice Corporation Pty Ltd,[13] there is no reason to suppose that Knight closed the door to categories of third parties who may be liable for costs of litigation nor that the circumstances identified in Knight were exhaustive. In Murphy v Young & Co's Brewery,[14] Phillips LJ used an example involving a trade union funding litigation by its members as one category of exceptional case where a costs order against a third party may be justified. However, in my view, the prospect of a costs order being made against the union if this appeal is unsuccessful is largely speculative at this stage, and is not such as to make an order for security for costs redundant.[13] Gore v Justice Corporation Pty Ltd [2002] FCAFC 83; (2002) 119 FCR 429 [23].[14] Murphy v Young & Co's Brewery [1997] 1 WLR 1591, 1601 - 1602; [1997] 1 All ER 518, 528 - 529, cited in Gore [36] - [37]. The police defendants rely on the following statement by McLure JA in Mann v Dabelstein,[15] in a context where the respondents to the appeal had instituted a defamation action against impecunious appellants:It is clear … that the appellant does not have the financial capacity or access to funds to enable him to provide the security sought by the respondents or indeed any security for costs. Thus the order would frustrate a genuine appeal that has reasonable prospects of success. I note the appellant has failed to satisfy outstanding costs orders made in the respondents' favour. However, that is a consequence of the respondents commencing proceedings against an impecunious party. The clear balance of relevant factors requires the Court to refuse to order security for costs. [17][15] Mann v Dabelstein [2006] WASCA 176. Generally an appeal is seen as a separate proceeding from the original action in which the orders appealed against were made.[16] The institution of an appeal involves a decision by the appellant to commence proceedings against the respondent. Notwithstanding the separate nature of the proceedings, I agree with McLure JA that the fact that the appeal is against a decision in primary proceedings which the respondent chose to institute against an impecunious appellant is a factor counting against an order for security for the costs of an appeal. The courts should be cautious about depriving an impecunious party who has not instituted the primary proceedings of the capacity to challenge an adverse decision in the primary proceedings by way of a genuine appeal that has reasonable prospects of success. [16] See Director, Office of the Fair Work Building Industry Inspectorate v CFMEU (No 2) [2013] FCAFC 34 [13]; Amaca Pty Ltd v Novek [2009] NSWCA 50 [106]; CMA Recycling Victoria Pty Ltd v Doubt Free Investments Pty Ltd (No 2) [2013] TASFC 10 [20]; Attorney General v Michael [1999] WASCA 181 [124].