Ivory v Telstra Co Ltd[2001] QCA 490

COURT OF APPEAL

McMURDO P

McPHERSON JA

CHESTERMAN J

BRISBANE

DATE 07/11/2001

JUDGMENT

THE PRESIDENT:  Mr Justice Chesterman will deliver his reasons first.

CHESTERMAN J: The respondent, who was the plaintiff in an action heard in the trial division of this Court unsuccessfully sought damages against the applicants for malicious prosecution and false imprisonment.

His action was heard between 5 and 9 February 2001.  On 11 April 2001 Mr Justice Douglas gave judgment for the defendants, the applicants, remarking in his reasons that the respondent had failed to prove his case and, more relevantly, that the allegations of malice and bad faith made against the defendants were baseless and dishonestly advanced.

On 4 May 2001 Mr Justice Douglas ordered the respondent to pay the applicant's costs of the action to be assessed on an indemnity basis.  His Honour's reason for the order was that the respondent's causes of action had been deliberately concocted and that the action was "prolonged by the conduct of the respondent as a witness and in his examination of witnesses; he imprudently refused very favourable offers to settle the action".

The respondent has appealed against both orders.  The second, being one as to costs only, may not be the subject of an appeal unless the Judge making the order gives leave to appeal.  No such leave has been obtained or even sought.  That appeal is therefore incompetent.

The applicants seek an order that the respondent provide security for the costs of the appeal in such amount and manner as the Court orders.  The applicants' costs of the appeal have been assessed at just over $16,000 which includes the preparation and conduct of both appeals which would be heard together, as well as the costs of this application.

The appeals against the judgments, especially that dismissing the respondent's action, have a number of grounds of appeal which can be grouped into three categories.

The first is that the trial Judge wrongly exercised his discretion not to adjourn the trial and so deprived the respondent of an opportunity to present his case properly.  The second category consists of assertions that the Judge was biased and ought to have disqualified himself from presiding at the trial.

A third category concerns an order made with respect to notices to admit facts but the order made with respect to that cannot have affected the outcome of the action.

The applicants describe the second category, those of objecting to the judge, as nonsensical.  I would go further and describe them as offensive.  Allegations that a Judge is biased are serious and ought not to be made unless there is some demonstrated basis for them.  The only basis for the allegation was that the Judge was personally acquainted with a partner in the firm of solicitors who represented the applicants.

His Honour acknowledged the acquaintanceship but pointed out that most of the Judges in this Court would also know Mr Spence and for that matter the litigating partners of many firms of solicitors.

The respondent did, in fact, obtain a short adjournment of the trial which was set down to commence on 29 January 2001.  I might observe that it had been set down to commence about three months earlier, giving, one would think, adequate time for preparation.

Over the next three days, that is from 29 January this year, Mr Justice Douglas listened to an application for adjournment.  It was unsuccessful but on Wednesday, 31 January, the respondent sought and was given an adjournment until the following Monday, 5 February.

In refusing the adjournment his Honour said:

"It is apparent the respondent does not wish the trial to go on at this stage.  The real question is whether an adjournment will benefit the respondent in any way.  He says that he hopes to obtain legal representation but was unable to call any witness, particularly a solicitor who was aware of the action and would indicate a preparedness to represent him.  In reality it seems to me that the plaintiff, that is the respondent, will never be ready for trial in the way that he is going about it.  In my view an adjournment would not give the respondent a real opportunity to better his case. "

It may also be observed that there is no ground of appeal against the findings of fact made in respect of the respondent's credibility or the finding that he gave false testimony, or that there was an absence of malice on the part of the applicants. 

On this application the Court has not, of course, looked closely at the merits of the grounds of appeal nor heard argument about them.  At first sight, however, they do not encourage a belief that the appeals have worthwhile prospects of success.  It is notoriously difficult to upset the exercise of discretion to grant or refuse an adjournment.

There is, as I mentioned, a legal impediment to one of the appeals. 

By Rule 772, the Court may order an appellant to give security for the prosecution of an appeal.  The discretion is a wide one.  It is not a bar to the making of such an order that the respondent is a natural person.

The respondent is indigent.  He gave evidence in January this year that he had no more than about $100 in the bank, he does not own a house or even a motor car.  He receives a disability pension, but claimed to have no idea of its value.

This factor is important and provides a persuasive reason for ordering security.  Mr Ivory will be unable to satisfy any order for costs made against him should his appeal be unsuccessful.  It is true that the respondent blames his impecuniosity on the applicant's breaches of duty owed to him, but the validity of that point is yet to be determined.

In the meantime, he has failed in an attempt to win damages against the applicants after a contested hearing.  These circumstances increase, rather than reduce, the willingness of the Court to make an order for security.  The respondent has had his day in Court and lost.  If he is to have a second, it should be on terms that the applicants may be recompensed for the costs they will occur, should he again lose.

I would order that the appellant furnish to the Registrar a security for the appellant's costs of the appeals by 4.00 p.m. on 7 December 2001, the amount of or property to the value of, $16,000 and in the event that such security is not provided, the appeals stand dismissed without further order.

THE PRESIDENT:  Yes, I agree.

McPHERSON JA:  I agree, except I would add, the appeal stand dismissed with costs, without further order.

THE PRESIDENT:  Yes, I agree with that amendment.

CHESTERMAN J:  As do I.

THE PRESIDENT:  Yes, the order is as proposed by Justice Chesterman, with the amendment provided by Mr Justice McPherson.

...

THE PRESIDENT:  The further orders are that the costs of this application be the applicant's costs in the appeal and the timetable for the progression of this appeal is to be referred to the Registrar.