Brooks v Worchild [2006] QCA 93

SUPREME COURT OF QUEENSLAND CITATION: Brooks v Worchild [2006] QCA 93 PARTIES: RAYMOND SYDNEY BROOKS (applicant) v ANDREW WORCHILD (respondent) FILE NO: CA No 120 of 2006 DC No 400 of 2005 DIVISION: Court of Appeal PROCEEDING: Application for Security of Costs ORIGINATING COURT: District Court at Southport DELIVERED EX TEMPORE ON: 31 March 2006 DELIVERED AT: Brisbane HEARING DATE: 31 March 2006 JUDGES: McMurdo P, Fryberg and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: 1) That the applicant, Andrew Worchild, give security by payment into Court of the amount of $10,000.00 or otherwise to the satisfaction of the Registrar of the Court of Appeal for the prosecution of his application for leave to appeal and for payment of any costs this Court may award to the respondent to that application on or before 14 April 2006. 2) If such security is not provided by 4.00 p.m. on 14 April 2006, the application for leave to appeal is struck out with costs to be assessed without further order of the Court. 3) That the respondent, Andrew Worchild, pay the applicant's costs of and incidental to this application. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PARCTICE AND PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where respondent is appealing dismissal of summary judgment application made by him in the Magistrates Court – where respondent is impecunious – where applicant has already incurred significant expense in defending the application – whether security for costs should be granted -- 1 of 5 -- 2 COUNSEL: C J R Wiltshire for the applicant The respondent appeared on his own behalf SOLICITORS: Jones King Lawyers for the applicant The respondent appeared on his own behalf DOUGLAS J: This is an application for security for costs brought by Mr Brooks, the respondent to the appeal brought by Mr Worchild. Mr Brooks seeks security in the amount of $10,000.00. The appeal instituted by Mr Worchild is from a decision of the District Court which itself was exercising its appellate jurisdiction in respect of a decision of the Magistrates Court made on 8 July 2005. The action in the Magistrates Court is between Mr Brooks as a landlord and Mr Worchild as his tenant in respect of a fire in the unit Mr Worchild was renting from the defendant, Mr Brooks. The fire is alleged to have started at the kitchen hotplate at the unit. The action is defended by Mr Worchild partly on the basis of a denial of negligence or breach of contract by him, and also by an assertion in the counterclaim that Mr Brooks was in breach of contract and a statutory duty by not providing fire extinguishers to the unit and to the building. The decision in the Magistrates Court was to refuse an application for summary judgment by Mr Worchild, the defendant to the claim in that Court, on the basis that there should be a trial of the action. The Magistrate was of the view that Mr Brooks had a real prospect of successfully defending all or part of Mr Worchild's counterclaim and that there was definitely a need for a trial of the matter. He also refused to strike out the reply to the defendant's counterclaim and a claim for judgment by Mr Worchild on admissions said to have been made by Mr Brooks. His view was that a trial was required to determine whether Mr Worchild was himself negligent and/or in breach of contract leading to a potential issue of apportionment or contributory negligence. -- 2 of 5 -- 3 He also refused to give judgment for Mr Worchild on the basis of an alleged failure by Mr Brooks to comply with his obligations in respect of disclosure. Mr Brooks had filed a list of documents out of time "but not by much", as the Magistrate found. The Magistrate resolved that momentous issue by ordering Mr Brooks to serve a copy of the list of documents and a copy of each document on Mr Worchild within seven working days after the making of the order. He also ordered Mr Worchild to pay Mr Brooks costs of and incidental to the application. Instead of proceeding to a trial of the action in the Magistrates Court, Mr Worchild sought to appeal from that decision to the District Court. It was treated as an application for leave to appeal before the District Court Judge. Mr Worchild submits in his appeal to this Court that leave was not necessary. That is not an issue that need concern us at present. The relevant issues in respect of the application for security for costs are as follows: Mr Worchild who is admitted as a lawyer and represented himself is said to be impecunious. He owns no land in New South Wales or Queensland, and the assertion that he was impecunious by the solicitors for Mr Brooks was not challenged. Mr Worchild has already had two "days in Court" where he has lost what might fairly be described as an interlocutory skirmish that does not determine his substantive rights. Those losses by no means prevent him from litigating the merits of his defence and counterclaim in the Magistrates Court at a trial, as the Magistrate anticipated. There is no suggestion that any impecuniosity of Mr Worchild is attributable to Mr Brooks. There is unchallenged evidence that the amount of the security sought, $10,000.00, is the amount of costs likely to be incurred by Mr Brooks in responding to Mr Worchild's application for leave to appeal to this Court, excluding this interlocutory application. Mr Brooks has already incurred fees of approximately $10,000.00 in respect of the application to the Magistrates Court and the hearing in the District Court. The amount claimed by Mr Brooks in the Magistrates Court is only $7961.80 plus interest. -- 3 of 5 -- 4 Each decision below was accompanied by reasons, which in the Magistrates Court in particular were lengthy, detailed and carefully reasoned. The learned District Court Judge concluded that he was left with the clear impression that Mr Worchild was engaged in delaying tactics to avoid a Magistrates Court trial. That view seems clearly justified on the evidence. This is not a case where an application for security for costs will prevent a hearing on the merits of the real issues in dispute between the parties at a trial, nor do Mr Worchild's prospects of success on the application for leave to appeal to this Court look strong. He argues that the delay in bringing this application should lead to it being dismissed. The application by Mr Worchild was brought in early January. We were told from the Bar table by the counsel for Mr Brooks that a little time was occupied in doing land title searches in respect of the issue of whether Mr Worchild was impecunious. This application for security for costs was then filed on the 10th of March. The hearing is not listed substantively until the 20th of April so that the significant costs to be incurred by Mr Brooks have not yet been incurred. It is true that this application could have been brought a little earlier but the other matters to which I have referred outweigh that consideration with the result that in my view the order for security for costs sought should be granted. I would order as follows: (1) that the applicant, Andrew Worchild, give security by payment into Court of the amount of $10,000.00 or otherwise to the satisfaction of the Registrar of the Court of Appeal for the prosecution of his application for leave to appeal and for payment of any costs this Court may award to the respondent to that application on or before 14 April 2006; (2) if such security is not provided by 4.00 p.m. on 14 April 2006, the application for leave to appeal is struck out with costs to be assessed without further order of the Court; -- 4 of 5 -- 5 (3) that the respondent, Andrew Worchild, pay the applicant's costs of and incidental to this application. THE PRESIDENT: I agree. FRYBERG J: I agree. THE PRESIDENT: The orders are as outlined by Justice Douglas. -- 5 of 5 --