Warry v P B Pty Ltd

[1998] QCA 358

COURT OF APPEAL	[1998] QCA 358
de JERSEY CJ McPHERSON JA CULLINANE J
Appeal No 6298 of 1998
IAN DOUGLAS WARRY	Appellant (Defendant)
and
P.B. PTY LTD	Respondent (Plaintiff)
BRISBANE
..DATE 14/09/98
JUDGMENT 140998 T5/JW5 M/T COA 230/98

THE CHIEF JUSTICE: Judgment was given against the appellant with costs in the District Court in a claim for damages for negligence on 12 June 1998 after a four day trial.

The learned Judge substantially disbelieved the appellant preferring the evidence of other witnesses.
The appellant was obliged to file and serve any appeal on or before 10 July 1998 because of the
provisions of Order 70 rule 4. He filed his notice of appeal on 10 July but did not thereafter serve it.
That is however explained by the fact, as he swears without contradiction, that he posted a copy of

the advance notice of appeal as it were before he had filed it to the respondent personally on 9 July.

The appellant served a sealed copy on the respondent's solicitors, together with his outline of
submissions, on
31 July but they objected inviting him to regularise the appeal by seeking an extension of time. He
did not do so. And then on 20 August the respondent sought an order that the appeal be struck out
or alternatively for security for costs.

As I say there is no contradiction of the appellant's claim to have sent an advance copy of the notice of appeal to the respondent personally. The appellant represents himself before us today. There is no ground for thinking that the respondent would be prejudiced if this appeal were to proceed by reason of any irregularity in service.

The respondent would however oppose an extension of time to regularise the appeal on the ground of inadequate prospects on the merits. It is an appeal against a finding of fact essentially and one has no particular confidence about the proposed new evidence point which is covered in the material. But in the end the appellant's failure to comply with the rules with relation to service is of a very technical character. And because the respondent will suffer no prejudice I am not dissuaded from regularising the appeal by what are probably his limited prospects of success on the merits.

They do however, taken with the need to regularise the appeal, give this Court the opportunity now
to protect the respondent by ordering security for costs. Such an order is in my view appropriate.
The appellant would appear to have little by way of assets having only comparatively recently in

August 1996 emerged from some years bankruptcy.

The Court has a broad discretion to require provision of security for costs on appeal more liberally
exercised for obvious reasons at this stage than at the stage of trial. Another part of the price to be
paid for the regularising of the appeal is allowing the respondent to cross-appeal. Understandably
the respondent's solicitors did not
cross-appeal following the service on 31 July lest they be taken to have waived any irregularity in

service.

I would make these orders:

(1)Extend the time for service of the notice of appeal to

31 July 1998 and deem the service then effected to have been regular.

(2)Order the appellant to pay to the Registrar by way of security for the respondent's costs of the

appeal the sum of $5,000 within 60 days. And that pending such payment all further

proceedings in the appeal be stayed.

(3)Extend the time for the respondent's filing of a notice of cross-appeal until 14 days after the

provision of such security.

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140998 T5/JW5 M/T COA 230/98

(4)If security for costs is not provided as aforesaid the appeal is to be taken to be struck out without

the need for further order by the Court.

(5)Costs of and incidental to today's proceedings to be costs in the appeal.

McPHERSON JA: I agree with the orders proposed by the Chief Justice and with the reasons he has given.

CULLINANE J: I also agree.

THE CHIEF JUSTICE: The orders will be as I have indicated.

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