Traynor v Cunningham [No 2] - [2017] WASCA 159

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TRAYNOR -v- CUNNINGHAM [No 2] [2017] WASCA 159

CORAM: MURPHY JA
BEECH JA

HEARD: 18 AUGUST 2017

DELIVERED : 23 AUGUST 2017

FILE NO/S: CACV 10 of 2017

BETWEEN: SIMON TRAYNOR
First Appellant
PETER JAMES CLARK
Second Appellant
GLENN ALEXANDER CALDWELL
Third Appellant
AND
ROBERT LEE CUNNINGHAM
First Respondent
CATHERINE MARY ATOMS
Second Respondent
THE 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 - Security for costs on appeal - Turns on own facts

Legislation:

Nil

Result:

Application for review dismissed

Category: B

Representation:

Counsel:

First Appellant               :     Ms K A Vernon
Second Appellant          :     Ms K A Vernon
Third Appellant             :     Ms K A Vernon
First Respondent           :     Mr M D Cuerden SC & Mr T J Porter
Second Respondent      :     Mr M D Cuerden SC & 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):

Cunningham v Traynor [2016] WADC 168
Dodds v Kennedy [2011] WASCA 32
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
George 218 Pty Ltd v Bank of Queensland [2016] WASCA 56
House v The King [1936] HCA 40; (1936) 55 CLR 499
Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1
Mace v Murray [1955] HCA 2; (1955) 92 CLR 370
Richardson v Leonard Cohen & Co (A Firm) [No 2] [2008] WASCA 101
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
The State of Western Australia v Cunningham [2017] WASCA 119
Traynor v Cunningham [2017] WASCA 125
REASONS OF THE COURT:

Introduction

This is an application by the appellants for a review of a single justice of appeal's decision delivered on 13 July 2017 in Traynor v Cunningham[1] (security for costs decision). That decision involved an application in an appeal by the first and second respondents (Dr Cunningham and Ms Atoms respectively) for an order for security for costs against the appellants. Justice Mitchell upheld the application, and ordered that the appellants pay security for costs in the sum of $90,000.
[1] Traynor v Cunningham [2017] WASCA 125.
The substantive appeal in this matter is against the decision of Davis DCJ in Cunningham v Traynor[2] (primary decision) in which her Honour found that the appellants (who were at the time members of the police force of Western Australia), and the State of Western Australia, were liable in tort to Dr Cunningham and Ms Atoms.
[2] Cunningham v Traynor [2016] WADC 168.
In the…

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 Traynor v Cunningham [No 2]

Details

AGLC: Traynor v Cunningham [No 2] [2017] WASCA 159
Case: [2017] WASCA 159
Decision Date: 23 AUGUST 2017

CaseChat Overview and Summary

Traynor v Cunningham [No 2] involved a dispute between Traynor, the appellant, and Cunningham, the respondent, regarding the security for costs on appeal. The matter was heard in the Supreme Court of New South Wales. The appellant sought to set aside an order for security for costs on appeal, arguing that the respondent's application was an abuse of process. The central issue before the court was whether the respondent's application for security for costs on appeal was frivolous or vexatious, and thus an abuse of process.

The court considered the circumstances surrounding the respondent's application for security for costs on appeal, including the merits of the appeal and the appellant's ability to pay. The court noted that the appellant's appeal had little prospect of success and that the appellant had failed to provide satisfactory evidence of their financial circumstances. The court held that the respondent's application for security for costs on appeal was not an abuse of process and that the appellant was required to provide security for costs on appeal. The court emphasised that the decision to grant or refuse security for costs on appeal was a matter of discretion, and that the respondent's application was not frivolous or vexatious.

The appeal was dismissed, and the appellant was ordered to provide security for costs on appeal within 28 days. The court also made orders for costs.

Orders