Brockman v Balding & Anor [2007] QDC 194

1 [2007] QDC 194 DISTRICT COURT CIVIL JURISDICTION JUDGE DEARDEN No 119 of 2006 PAUL GREGORY BROCKMAN Appellant and BRETT ANTHONY BALDING and IRENE PASCAL BALDING First Respondent Second Respondent BEENLEIGH ..DATE 02/04/2007 ORDER -- 1 of 5 -- 2 ORDER HIS HONOUR: In the circumstances, I will grant the application for leave to withdraw from the record as solicitors for the appellant in this matter. ... HIS HONOUR: This is an application pursuant to rule 772 of the Uniform Civil Procedure Rules (UCPR) that the appellant provide security for costs of the appeal. Rules 782 and 785 apply chapter 18 (which includes rule 772) to an appeal to the District Court. As the matter currently stands before me, the appellant no longer has legal representation, given that immediately before this application was heard, I granted an application by the appellant's then solicitors, Keith Scott and Associates, leave to withdraw. Mr Brockman's name and the name of an apparent alias, Paul Ward, was called in the precincts of the Court and there was no appearance by the appellant. In the circumstances, I consider it appropriate to hear this application, which is an application for security for costs. Now, UCPR rule 773 states that security can be ordered by way of payment into Court or in another way and in the case before me, the applicant on these proceedings (respondent to the appeal) seeks payment into Court of an amount of $5,750. That amount is calculated by the applicant/respondent's solicitor, Mr Douglas Green, of McLaughlin and Associates, at paragraph 5 of his affidavit sworn 24 January 2007 at an amount of $5,750 and a reasonable estimate of the applicant/respondent's likely -- 2 of 5 -- 3 ORDER costs of and incidental to the appeal. In the circumstances, it seems to me to be an appropriate and relatively modest sum. UCPR rule 774 provides that if security is not provided as ordered, the Court of Appeal (I note that the rule is relevantly drafted in respect of that Court) may dismiss the appeal. However, as Dr Jensen, in his outline, helpfully indicates, the Court of Appeal itself routinely makes self executing orders in similar terms to the order sought from this Court, which has the effect of providing for automatic dismissal of the appeal if security is not provided. As Dr Jensen points out in his submissions, the relevant considerations are the appellant's prospects of success in the appeal and whether he is impecunious. In respect of the prospects of success, as Dr Jensen points out, Mr Green, in his affidavit sworn 24 January 2007, at paragraphs 3 and 4, expresses an opinion that the appellant's prospects of success are poor. Although that is obviously the opinion of the solicitor for the applicant/respondent in these proceedings, there is some force to that expression of an opinion as to prospects, given the fact that the issue is the exercise of a discretion by a Magistrate in circumstances where the appellant has failed to assert that the Magistrate acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him or mistook the facts. In all of those circumstances, without, of course, having to pre-decide the matter, it does seem that the appellant's prospects on the original application are poor. -- 3 of 5 -- 4 ORDER In respect to the issue of impecuniosity, the appellant's outline and notice of appeal, as Mr Jensen outlines in his submissions, do not explain why the appellant failed to pay the judgment sum into Court, but it is a reasonable inference that the appellant is impecunious and is unable to do so. In respect of that, Dr Jensen's solicitors wrote to the appellant's solicitors on 5 December 2006, seeking details of the appellant's assets and liabilities, but received no response. That, of course, may well be explained by the application of the appellant's solicitors seeking leave to withdraw and indicating from the Bar table that they had been unsuccessful for some time in obtaining responses from their client. There is a potential issue of the appellant being the registered proprietor of land at 29 Laughlin Street, Kingston, under an alias of Paul Gregory Ward (the name that I referred to earlier in these reasons being the alternative name which was called in the precincts of the Court); however the contents of paragraph 7 and 8 of the affidavit of Douglas Green, sworn 24 January 2007, would indicate that the value of the land is uncertain and it is subject to both mortgage debt and a caveat. In the absence of any information about the appellant's assets and liabilities, it is a reasonable inference to draw that the appellant is impecunious and therefore, if the appeal fails, that the appellant would be unable to pay the respondent's costs of the appeal. -- 4 of 5 -- 5 ORDER In the circumstances, then, it is my view that it is appropriate to grant this application, which was filed on the 30th of January 2007 and order, with a self executing provision, that a specified sum be paid to Court as security for costs. ... HIS HONOUR: I order as follows:- (1) That pursuant to rule 772 of the Uniform Civil Procedure Rules 1999, the appellant pay the sum of $5,750 into Court within fourteen (14) days of the date of this order as security for the costs of the appeal in default of which the appeal stand dismissed with costs. (2) The appellant pay the respondent's costs of and incidental to this application to be assessed on the standard basis. ----- -- 5 of 5 --