Luadaka v Dooley[2003] QCA 51

SUPREME COURT OF QUEENSLAND

[1]  THE COURT:  This is an application for security for the costs of an appeal.  The appellant in the appeal and the respondent to this application Ms Luadaka sued the applicants Mr and Mrs Dooley in the District Court for damages for negligence, breach of contract and for misleading and deceptive conduct pursuant to the Fair Trading Act.  The action arose out of the conduct by the Dooleys, who are solicitors, of litigation on Ms Luadaka's behalf in the Family Court.

[2] The action in the District Court had a long and tortuous history due no doubt in part to the fact that Ms Luadaka was, until the commencement of the trial, acting on her own behalf.  It was finally heard in September 2001 and judgment given dismissing Ms Luadaka's claims in September 2002.  In giving judgment the learned District Court judge gave detailed and comprehensive reasons for dismissing her claim, his reasons totalling 64 pages and 229 paragraphs.

[3] Ms Luadaka's claim against the Dooleys turned very largely on findings of credit and it is important to note in this respect that the learned trial judge concluded that generally where there was a conflict between them he preferred the evidence of the Dooleys and rejected the evidence of Ms Luadaka.  He said that he did not regard her as a reliable witness and was not prepared to accept her evidence unless it was supported by evidence from some independent source or was clearly inherently credible.  He gave detailed reasons for this conclusion.  In a number of specific cases he found her evidence unreliable, described specific claims as fanciful and described some of her evidence as plainly false.  In all cases setting out the facts and findings on those facts which led him to that conclusion.

[4] It is most unusual for this Court to revisit findings of primary fact based on credit and a reading of his Honour's reasons in this case leads us to conclude that it is in the highest unlikely that this Court would do so in this case.  We mention this because Ms Luadaka's notice of appeal and her outline of argument in the appeal show that that is what she will be asking this Court to do as indeed it seems she must if she is to succeed.  Moreover, although our views on this question will in no way influence the decision of this Court on the appeal when it is heard, it seems to us that, unless those primary findings of fact can be overturned on appeal, it is likely that the appeal will fail.  There is an additional allegation in the appeal that the learned trial judge was biased but on the material which we have seen that claim is also most unlikely to succeed.  Mr Perkins for the applicant also made the point, which has some substance, that no point was taken about that below notwithstanding that the learned trial judge stated in open court at the commencement of the hearing that he had had a prior professional relationship with the applicants.

[5] It is common ground that Ms Luadaka is impecunious.  That is an important factor against making an order for security for costs at first instance.  But it is of less importance on an appeal especially where, as appears to be the case here, the decision of the learned District Court judge involved findings of fact based on credit.

[6] In the present case this last factor is, in our opinion of the utmost importance particularly when one has regard to the comprehensive and, it seems to us, compelling reasons of the learned primary judge.  The prospects of Ms Luadaka's appeal succeeding are so poor, in our opinion, that the balance of fairness between the parties is very much in favour of an order for security for the costs of the appeal.

[7] On the other hand, notwithstanding the length of the trial and the extensive reasons of the learned primary judge, we do not think that an appeal to this Court would be either of long duration or require enormous preparation.  Accordingly it seems to us that the estimate of costs which we have of $15,000 is too high.  We would accordingly make the following orders:

1. that the appellant furnish to the Registrar as security for the respondents' costs of the appeal the amount of $10,000 or property to the value of $10,000 by 4.00 pm on 7 March 2003 in such form as the Registrar may require, whether by payment of money or otherwise;

2. that failing the furnishing of such security by that time the appeal stand dismissed with costs without further order;

3. that the costs of this application be costs in the appeal.