Vaughan v Jilek[2023] QCA 148

[2023] QCA 148

COURT OF APPEAL

BOND JA

Appeal No 3734 of 2023

DC No 2883 of 2021

JASON VAUGHANAppellant/Applicant

v

THOMAS JILEKFirst Respondent

CAROLE JILEKSecond Respondent

BRISBANE

MONDAY, 24 JULY 2023

JUDGMENT

BOND JA: The proceeding before this Court concerns the process by which Mr Vaughan seeks to have this Court overturn certain orders made in the District Court.  It is convenient to refer to Mr Vaughan as the applicant.  The hearing in the Court of Appeal is presently listed for 8 August 2023.  I have before me two applications.

The first application is an application by the applicant.  He represents himself.  He seeks to have set aside a security for costs orders made by Boddice JA on 7 June 2023.  The second is that made by Mr and Mrs Jilek.  It is convenient to refer to them as the respondents.  They’re represented by counsel.  The orders made by Boddice JA were made on their application.  The applicant has not provided security for costs as ordered by Boddice JA.  The respondents now apply for orders dismissing the proceeding in this Court or, alternatively, for vacation of the presently listed hearing date and for a guillotine order dismissing the proceeding in this Court in the event that security is not provided within a stated time.

Because the applicant represents himself, there are many infelicities in the documents which he has filed in the Court.  His written argument is difficult to follow, and it seems characterised by an assumption that everything which does not comply literally with the Uniform Civil Procedure Rules 1999 (UCPR) or of associated forms may be disregarded.  Of course, that is not right: see UCPR rules 3, 5 and 371.  The approach which he takes, which he describes as “an austere construction of the UCPR”, flies in the face of the philosophy of the UCPR articulated in rule 5.  It is not an approach which I will take.  I made that clear to him during the course of oral argument.

In order to deal with the first application before me, I must first identify the chronology of relevant events.

In 2021, the applicant as plaintiff commenced proceeding 2883 of 2021 in the District Court against the respondents as defendants.  I have not been taken to the pleadings in that proceeding.  The best I can say at present is that the applicant’s written submissions assert:

“The respondents broke into the appellants premises and forcefully ejected the appellant’s goods and chattels therefrom; withholding the appellant’s computers for purported debts not lawfully owed to them in quasi-extortionist modalities, disposing of the computers after being notified of police involvement; causing damages to the appellant.”

On 20 October 2022, Muir DCJ made orders in relation to an application made by the applicant.  Amongst other orders, she made the following orders:

1. The applicant was granted leave to file an amended claim and statement of claim in a version which was before the Court but was also required to identify the causes of action against each respondent and the amounts claimed under each heading.
2. The amended claim and statement of claim were to be served on the respondents in the way her Honour specified.
3. The respondents had 90 days from the date of service either to file a strikeout application or a notice of intention to defend and defence.
4. The applicant’s application for judgment filed 7 October 2022 was dismissed and any application for default judgment if the respondents failed to comply with the order concerning filing a strikeout or a Defence was required to be heard by a Judge.

On 24 February 2023 Porter KC DCJ extended the 90 day time limit under Muir DCJ’s order for the respondents to file a defence or strikeout application until 23 March 2023.  It’s convenient to refer to this part of the orders made by his Honour as the first order.  His Honour also ordered that if the respondents filed a defence within time, the applicant was required to file a reply within 90 days of the service of the defence.  Porter KC DCJ also dismissed an application by the applicant for the respondents to show cause why judgment should not be entered.  His Honour also ordered that costs of the application before him be costs in the proceeding.

On 6 March 2023, Sheridan DCJ dismissed the applicant’s application filed 28 February 2023 and ordered the applicant to pay the respondents’ costs of the application.  It’s convenient to refer to this order as the second order.  The application before Sheridan DCJ sought to change the operation of various orders which Muir DCJ had made.

On 23 March 2023, the respondents filed a defence in compliance with the first order.

On 24 March 2023, the applicant filed the application for leave to appeal and the notice to appeal in respect of the first order and the second order.  The respondents are right to contend that pursuant to s 118(3) of the District Court of Queensland Act 1967, leave to appeal is required.  Section 118(2)(b) does not apply because the interlocutory orders sought to be appealed relate to practice and procedure and are not “…claims for the recovery of land or other things in specie or their value, and not money claims in personal actions” citing Coles Group Limited v Costin [2015] QCA 140 at [62].  As to the application, it may be observed that (1) it sought leave to file a notice of appeal dated 24 March 2023, suggesting that the notice consolidated two related judgments of the Court in the proceeding being heard in this appeal and any other matter for which leave of the Court is determined.; and (2) it sought injunctive relief against enforcement of the costs orders made by Sheridan DCJ, although wrongly stating that it was made on 6 March 2023.  As for the notice of appeal, it may be noted that it states that it appeals from both the judgments of Porter KC DCJ, dated 24^th February 2023, and the order of Sheridan DCJ, dated 6 March 2023.

On 7 June 2023 a security for costs order was made by Justice Boddice on an application made by the respondents.  His Honour made the following orders:

“1. By 18 July 2023, the applicant provide security for costs in the amount of $7,500 in a form acceptable to the Registrar of the Court of Appeal.

2. The enforcement of any assessed costs order pursuant to order 2 of the order of Sheridan DCJ made 6 March 2023 be stayed until the earlier of:

1. (a)
   8 August 2023; or
2. (b)
   Further order.

3. The costs of:

1. (a)
   the respondents’ application filed on 4 May 2023; and
2. (b)
   paragraphs 3 and 4 of the applicant’s amended application filed on 15 May 2023,

be costs in the application for leave to appeal and of the appeal.”

On 25 June 2023, the respondent served his reply in the District Court proceeding.

On 10 July 2023, the respondents served their list of documents in the District Court proceeding on the applicant by email.

On 18 July 2023, the deadline for the provision of security for costs of the applicant passed.

On 19 July 2023, the respondents were advised that the applicant had not provided security for costs.  I interpolate that it is common ground that security for costs had not yet been provided.  The applicant suggests that he is making a funding application to someone that may put him in the position of being able to pay that security.

On 25 July 2023, the applicant’s disclosure is due to be filed in the District Court proceeding.

The respondents have submitted that because the applicant is in the position of seeking leave before he can appeal, chapter 7 of the UCPR applied to their application for security for costs and also the applicant’s application to vary the order originally made, citing Chibanda v Chief Executive, Queensland Health & Anor [2018] QCA 334.  They submit that the applicant’s application might be more accurately considered under rule 675.  Having regard to the authority they cite, they are right, and the indication which I made in the course of having the present application brought on – that when setting that the applicant’s application to set aside the order made by Boddice JA should be treated as an application pursuant to rule 772(4) – is wrong.  It doesn’t matter.  The only difference between rule 772(4) and rule 675 is that the latter requires special circumstances to set aside or to vary an order for security for costs.  On the facts of this application, the respondents submit that it is not necessary to dwell on the differences between the two rules.  I agree.  What is significant is that Justice Boddice had jurisdiction to make the order, and I have jurisdiction, on proper cause being shown, to vary the order.

Here, the applicant shows no basis for setting aside or varying the security for costs order.  There is no relevant change of circumstances.  He submits that he wasn’t at his best in advancing the argument, but  I don’t regard that as an adequate basis upon which I should embark upon a rehearing of the application for security for costs.  There is no basis for concluding that the discretion to order security miscarried.

Belatedly, because it’s not in his application, the respondent sought to challenge the quantum of the security for costs order.   The security for costs quantum, on whatever basis it was ordered, was very modest.  I did not allow him to amend his application to enable him to challenge the amount which was ordered based upon the merits of that amount.  He also suggested from the bar table that the order orally made by Justice Boddice was $7,000 and not $7,500.  I refused to accept his evidence from the bar table.

The truth is that his application seems to be founded on the proposition that his Honour erroneously assessed his prospects of success on the appeal as poor.  It transpired that the reason he is so confident in his prospects of success is that he says the District Court judges below erroneously failed to apply rule 135 of the UCPR in that the application to extend time was itself a step and the proper construction of rule 135 is that the respondents, when they brought that application below, needed leave to bring the application.

What his argument overlooks is the point that I sought to explain to him early on in his oral argument.  The reason why Justice Boddice’s negative view of the prospects of success was plainly right is that the applicant brings an application for leave to appeal against discretionary orders of practice and procedure.  The principles which should apply to the determination of appeals against such orders are set out in Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd (2021) 9 Qd R 141 at [11] to [13]: generally an appellate court will not interfere unless, in addition to error of principle, the appellant demonstrates that the order will work a substantial injustice to one of the parties.”  In this case, even if the respondent is technically correct about rule 135, there is simply no basis upon which this Court would conclude that the impugned orders caused him substantial injustice.  All the orders did was bring about the situation that his claims would not be precipitously determined; there would need to be a trial of the action.  That does not cause him substantial injustice.  That is not a case in which this Court would be minded to interfere with the orders below.

In any event, the procedural steps about which the applicant complains have been superseded by the events that I’ve recorded.  There is no basis on which I am minded to set aside the orders made by Justice Boddice.  I dismiss the applicant’s application in that regard.

...

I reject the argument advanced by the applicant to resist the costs which were sought by the respondents.  In my view, the application to set aside the security for costs order made by Boddice JA was utterly unmeritorious and it should never have been brought.  I order the applicant to pay the respondent’s costs of the application, to be assessed on the standard basis.

...

As I have mentioned, it is common ground that the applicant has failed to comply with the security for costs order.  The respondents have brought an application for orders dismissing the applicant’s application for leave to proceed in this Court, or, alternatively, for orders vacating the presently listed hearing date and for a guillotine order dismissing the proceeding in this Court in the event that security is not provided within a stated time.

The applicant, who is a respondent to the respondents’ application, challenged my jurisdiction for making such an order.  I am satisfied that I do have that jurisdiction.  My reasons for reaching that view turn on a combination of construing the provisions of sections 44(1), (2) and (3) of the Supreme Court of Queensland Act 1991 and the view taken regarding the source of the power to award security for costs of an application for leave to appeal explained by Justice McPherson in Bell v Bay-Jespersen [2004] 2 Qd R 235 at [12], referred to with approval by Gotterson JA in Chibanda v Chief Executive, Queensland Health [2018] QCA 334.  If that construction of the source of power is correct, then chapter 17 of the UCPR and the powers conferred on the Court by that chapter must be regarded as the source of power for the Court of Appeal to deal with security for costs applications where leave is required.  On that basis, when section 44(1) of the Supreme Court of Queensland Act 1991 states that a Judge of Appeal may exercise the powers of the Court of Appeal “to dismiss an appeal or other proceeding for want of prosecution or for other cause specified in an Act or a rule of Court about the practices and procedures of the Court of Appeal” it must be taken to encompass the provisions of chapter 17 empowering the Court of Appeal to make orders in relation to security for costs.  The result then, consistently with the submissions advanced by the respondents, is that the Court of Appeal may exercise the powers conferred on the Court by rule 674, construing reference to the plaintiff in that rule as applicable to the applicant for leave.  A curiosity is the wording of section 44(2)(b), which suggests that a Judge of Appeal may not exercise the powers of the Court of Appeal to make an order or direction involving the determination of the appeal or other proceeding, and the wording of section 44(3), which provides that sub (2) doesn’t limit the powers that a Judge of Appeal may exercise under sub (1).  It’s not necessary to explore in any detail the significance of those provisions.  I think section 44(3) makes it clear that the provisions of sub (2) would not operate to the contrary of the view I’ve expressed as to the jurisdiction conferred by section 44(1)(b).  It follows that, in my view, I have the jurisdiction to make the orders that the respondents seek.  I gain some comfort from the fact that in Rosily v QBE Insurance (Australia) Limited [2022] QCA 190, Justice Morrison exercised powers in a manner consistent with that which the respondents have contended I should.

But for one consideration, my view would be that the relevant discretionary factors support a dismissal of the application for leave to appeal.  First, for reasons I expressed earlier, the applicant for leave to appeal has very poor prospects of success.  Second, in that regard, there does not seem to be any merit in letting the proceeding linger further with the consequent wasting of litigants’ time and money, as well as the time in this Court.  The consideration that causes me pause is the applicant has said, admittedly from the bar table, that he is in the process of seeking some form of funding and that he may, within a relatively short time period, be able to pay security for costs in the amount the subject of the order.  In that regard, the respondents are happy not to press their application for dismissal today, but do press their alternative application for the order that security be provided and an associated guillotine order, as I’ve earlier expressed.  The applicant resists such an order on the basis, he says, of fairness.  I see no unfairness at all involved in making an order in the form that the applicant respondents seek.

...

The orders that I make in relation to the respondents’ application are as follows:

1. The hearing listed for 8 August 2023 be vacated.
2. Unless by 4pm on 21 August 2023 the applicant provides security for costs in the amount of $7,500 in the manner referred to in order 1 of the order of Boddice JA dated 7 June 2023, the appeal be dismissed and order 2 of the order made by Boddice JA dated 7 June 2023 be set aside without the need for any further order of the court, with the appellant to pay the respondents’ costs of the appeal to be assessed on the standard basis.

...

The respondents seek an order that the applicant pay their costs of their application to be assessed on the standard basis.  Their argument is that costs should follow the event.  The applicant says that any costs order should be conditioned in a way that would have regard to the correctness of his proposition that the application advanced by the respondents should have been made in the District Court.  I reject his proposition.  The application was properly made to a judge of the Court of Appeal.  There is no basis upon which the order for costs should be conditioned.  The assessment can take place in the usual way.  Accordingly, I order that the applicant pay the respondents’ costs of the respondents’ application, to be assessed on the standard basis.