Green v Scottney-Turbill
[2023] QCA 141
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Green v Scottney-Turbill[2023] QCA 141
- Add to List
Green v Scottney-Turbill[2023] QCA 141
Green v Scottney-Turbill[2023] QCA 141
[2023] QCA 141
COURT OF APPEAL
BOND JA
Appeal No 5786 of 2023
Appeal No 5787 of 2023
SC No 968 of 2022
RON GREENAppellant/Applicant
v
ANDREW SCOTTNEY-TURBILLFirst Respondent
ROBIN SCOTTNEY-TURBILLSecond Respondent
BRISBANE
FRIDAY, 14 JULY 2023
JUDGMENT
BOND JA: The resolution of the present application takes place against the background of four decisions by Judges of the trial division. First, the decision of Jackson J in Green v Scottney-Turbill & Anor [2022] QSC 65. Second, two decisions by Cooper J on 13 April 2023: first, the decision refusing the plaintiff’s application for an adjournment of the trial which had been listed to commence before him on that day; second, the decision refusing the plaintiff’s application for leave to withdraw admissions deemed to have been made by him consequent upon his failing to respond to a notice to admit facts given to him before trial. Third, the decision of Cooper J on 14 April 2023 on the merits of the trial before him, and in which he ordered (a) the plaintiff’s claim be dismissed; (b) the defendants have judgment on their counter-claim against the plaintiff in the sum of $38,579; and (c) the plaintiff pay the defendants costs of and incidental to the proceeding including reserve costs to be assessed on the standard basis.
I will not seek to summarise the background facts. They are sufficiently set out for present purposes in those decisions.
The plaintiff, Mr Green, has lodged appeals 5786 and 5787 of 2023 in respect of the first decision by Cooper J and in respect of the judgment on the merits by Cooper J. He does not presently challenge his Honour’s ruling in relation to his application for leave to withdraw admissions, but I anticipate that he may seek to change that position in the future if the appeals proceed.
The respondents had applied for security for costs of the two appeals. On 20 June 2023 – and after a hearing which there had been no appearance by the appellant – the President made the following orders in relation to the two appeals:
“1. Direct that appeal no 5786 of 2023 and appeal no 5787 of 2023 (the appeals) be heard together and that any documents filed in appeal no 5786 of 2023 can be relied upon for the purpose of appeal no 5787 of 2023.
- The appellant must give security for costs for the appeals in the sum of $15,000 within 28 days of the date of this order by payment in court in appeal no 5786 of 2023 of the said sum or in such other form as the Registrar of the Court permits.
- The appeals are stayed so far as steps to be taken by the appellant until the security has been given as required by this order, or further order.
- The appellant must pay the respondents' costs of the application for security for costs filed on 11 May 2023 limited to the costs incurred in respect of appeal no 5786 of 2023.”
The appellant has since filed an application seeking the following orders:
“1. The Appellant is seeking the leave of the Court of Appeal to reassess the Respondents Application for security for costs, heard Tue 20 June 2023 10am before Justice Mullins, in the absence of the Appellant.
- The Appellant is seeking to rely on the following affidavits and asks that the Affidavits be filed on the Court of Appeal file 5786/23
a) Affidavit of Ron Green signed Tue 20 June 2023
b) Affidavit of Ron green signed Wed 21 June 2023,
- That the Respondent application for security for costs be dismissed.
- Such other orders as the Court of Appeal considers appropriate.”
I am dealing with that application. The appellant appeared for himself before me and before Jackson J and Cooper J.
It is apparent from the terms of the affidavits relied upon by the appellant that his explanation for failing to appear at the hearing of the respondent’s application for security for costs is twofold: first, he was delayed by unusual traffic along the road that he is required to travel to get to the Court; second, that delay had a knock-on effect to his ability to have finalised an affidavit on which he wanted to rely in the course of responding to the security for costs application, and that caused him to turn up to the Court late. He says that he arrived at the courtroom shortly after the order had been made by the President and that the respondent’s lawyers told him that the matter had been dealt with and that orders would be posted to him. His application was made promptly after those events.
Pursuant to rule 772(4) of the Uniform Civil Procedure Rules 1999 (UCPR), the Court of Appeal may at any time set aside or vary an order made under rule 772. The President’s order was made under rule 772, and it follows that I have jurisdiction at any time to set aside or vary her Honour’s order and it is not necessary for the applicant to bring an appeal from her order in order to seek to have it changed. I anticipate also that her Honour reserving liberty to apply in the circumstances where the appellant had not turned up before her may have also been motivated by an appreciation by her Honour that the appellant might want to bring such an application.
Essentially, by this application, the appellant seeks an opportunity to resist the application that he was unable to resist by virtue of his misjudgement on the first occasion. By misjudgement, I mean that it was obvious that he should have gone to Court at the listed time and explained the need for a short delay while he finalised his affidavit. His failure to take that course was a misjudgement. Although the explanation is relatively weak, given that the appellant is self-represented, I would not refuse the present application based on an inadequacy of the explanation for his non-appearance before the President. The greater problem for the present application is the weakness of the appellant’s case to resist the respondent’s application for security for costs.
The relevant principles to be applied in an application for security for costs were set out in Woolworths Group Ltd & Ors v Day [2018] QCA 79 per Morrison JA at [6] and [7]. In [6], his Honour quotes rule 772(1) of the UCPR. In [7], he quotes from his previous decision in Loel & Anor v Miller & Anor [2017] QCA 203 at [3]-[4], in which he said the following:
“[3] The power under r 772 has been described as an “unfettered” discretion whether to order security and, if so, in what amount. Relevant factors include that the party has “had their day in court and lost”, that party’s financial position and the prospects of success on appeal. As to those factors, this Court said in Toms v Fuller:
‘There is no comprehensive list of factors which might be taken into account on an application for security for costs of an appeal; Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241, but where the prospects of success on appeal are ‘bleak’, and the appellant is without funds, there are powerful reasons for ordering security: Murchie at 530.’
[4] Further, as McMurdo JA said in Woolworths Ltd v Berhane:
“Another of the considerations referred to in Murchie is the fact that the plaintiff has had his day in court. Put another way, the discretion which is to be exercised under r 772 has a different content from that to be exercised where security for costs is sought ahead of a trial. In particular, the authorities which show a predisposition against the ordering of security for costs against a personal plaintiff ahead of a trial are of less relevance in the present context.”
In the present case, to my mind, the relevant considerations all support the exercise of discretion which the President made.
First, it is common ground that the appellant is impecunious. He submits that having to pay security would make it very difficult for him to run the appeal. That said, as McMurdo JA noted in Woolworths Ltd v Berhane, that consideration has less weight when the question is security for costs of an appeal.
Second, it appears that the prospects of success of the appeal are slender at best. The appellant would need to overturn the two discretionary judgments made by Cooper J in the two rulings to which I have referred. The difficulties which he faces in so doing are explained in Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd (2021) 9 QR 141. The appellant has not developed any compelling basis for his contention that the discretion must be taken to have miscarried or that the exercise of discretion would cause him injustice. It is, I think, the former of the two considerations which is the most likely to be problematic for him in any attempt to overturn the two discretionary judgments made by Cooper J because his Honour specifically adverted to the considerations which the appellant relied upon before me, considered those considerations and rejected them.
But even if those difficulties can be overcome, no error has been identified in the approach which the Cooper J in relation to standing. Particularly problematic was the appellant’s failure to develop any argument before me that his Honour must be taken to have erred in his Honour’s discussion of the impact of the appellant’s bankruptcy on his standing to assert some sort of interest in the land which is the subject of the present appeal. His Honour pointed out, effectively, that the appellant relies on whatever rights he has to compel the Australian Securities and Investments Commission (ASIC) to revest the land which vested in ASIC consequent upon the deregistration of the company of which the appellant was one of two officers. That deregistration and the vesting in ASIC of the land occurred prior to the bankruptcy of the appellant. So if the appellant personally, as distinct to having an interest jointly with the other officer of the company, could be said to have had a relevant interest in the land by reference to the chose in action against ASIC, the appellant’s title to the chose in action, would have vested in his trustee in bankruptcy. See the reasons for judgment of Cooper J at page 1-5, lines 30 to 40.
Third, the respondents made no relevant delay in their application for security for costs of the appeal.
Fourth, the security, although likely to be problematic for the appellant, is of a comparatively modest amount.
In my view, there is no basis demonstrated either to vary or to set aside the security ordered by the President. As I have indicated, the considerations to which I have adverted all support her Honour’s exercise of discretion. It follows that the appellant’s application before me should be dismissed.
…
I order the appellant to pay the respondents’ cost of his application, to be assessed on the standard basis.