Vaughan v Jilek[2023] QCA 195

[2023] QCA 195

COURT OF APPEAL

MULLINS P

BURNS J

KELLY J

Appeal No 3734 of 2023

DC No 2883 of 2021

JASON VAUGHAN Appellant/Applicant

v

THOMAS JILEK First Respondent

CAROLE JILEK Second Respondent

BRISBANE

WEDNESDAY, 27 SEPTEMBER 2023

JUDGMENT

1. [1]
   MULLINS P:  Mr Vaughan is the plaintiff in District Court proceeding 2883 of 2021 in which Mr and Mrs Jilek are the defendants.  His substantive appeal to this Court was commenced in respect of two interlocutory decisions made in the District Court respectively on 24 February and 6 March 2023.  Mr Vaughan has not sought leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld).  It is arguable that leave is required for him to pursue his substantive appeal but it is not necessary to decide that issue at this stage.
2. [2]
   Mr and Mrs Jilek were successful in their application before Boddice JA on 7 June 2023 for an order for security for costs of the appeal in the amount $7,500 in a form acceptable to the Registrar of the Court of Appeal.  The security was to be provided by 18 July 2023.  The appeal was listed for hearing on 8 August 2023.
3. [3]
   The security was not provided and instead Mr Vaughan applied to Bond JA to set aside the order for security for costs.  On the same date Mr and Mrs Jilek applied for orders dismissing the appeal to this Court for the reason that Mr Vaughan had failed to provide security for costs or, alternatively, for vacation of the listed hearing date of the appeal and a guillotine order dismissing the appeal to this Court in the event that security was not provided within a stated time.
4. [4]
   Bond JA dismissed Mr Vaughan’s application to set aside the security for costs order and ordered Mr Vaughan to pay the costs of Mr and Mrs Jilek of the application to be assessed on the standard basis: Vaughan v Jilek & Anor [2023] QCA 148 (the reasons).  In relation to Mr and Mrs Jilek’s application, the hearing listed for 8 August 2023 was vacated and Bond JA ordered:

“4. 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.”

5. [5]
   Bond JA also ordered Mr Vaughan to pay the costs of Mr and Mrs Jilek of their application for dismissal of the proceeding to be assessed on the standard basis.
6. [6]
   On 15 August 2023, Mr Vaughan filed an application in this Court that is in substance an application for review of the orders made by Bond JA in relation to security for costs.
7. [7]
   I reviewed this application on 21 August 2023 and set it down for hearing before a corum of three judges on 27 September 2023.  I also made an order extending the time for Mr Vaughan to provide security for costs to ensure that the guillotine order did not take effect before 27 September 2023.  The order I made was in the following terms:

“Order 4 made by Bond JA on 24 July 2023 is varied by deleting “21 August 2023” and inserting in lieu “the date which is seven days after the hearing of the Court of Appeal of the appellant’s application filed on 15 August 2023 for review of the orders made by Bond JA on 24 July 2023.””

8. [8]
   Bond JA’s orders were made as a judge of appeal exercising the powers of the Court of Appeal.  There is no appeal from a decision of a single judge of appeal exercising the powers of the Court of Appeal but there is a power in the Court of Appeal to review such a decision.  See s 44(4) of the Supreme Court of Queensland Act 1991 (Qld) (Act) which provides:

“The Court of Appeal may discharge or vary–

1. a judgment given by a judge of appeal; or

2. an order made or direction given by a judge of appeal.”

9. [9]
   That is why Mr Vaughan’s application filed on 15 August 2023 is before the Court of Appeal today comprising three judges to review Bond JA’s decision.
10. [10]
    The nature of the review pursuant to s 44(4) of the Act was considered in Di Iorio v Wagener [2016] QCA 346 at [28] where Gotterson JA (with whom Philippides JA and Henry J agreed) stated:

“On this appeal, in order for this Court to grant an application to discharge or vary under s 44(4), the applicant must demonstrate, on the part of the judge of appeal, an error of law, a material error of fact, a failure to take into account a material consideration, the taking into account of an irrelevant consideration, or unreasonableness in the House v The King sense.” (footnote omitted)

11. [11]
    It is therefore for Mr Vaughan to show relevant error in the decision of Bond JA in refusing to discharge the order made by Boddice JA dated 7 June 2023 and making a guillotine order if Mr Vaughan did not provide the security by the date specified by Bond JA (which was further extended by the order that I made on 21 August 2023).
12. [12]
    Mr Vaughan submitted that Bond JA did not have jurisdiction as a single judge of appeal to hear the applications that were before him on 24 July 2023.  Dealing with a security for costs application is a question of practice and procedure.  Bond JA was exercising the jurisdiction of a single judge of appeal pursuant to r 767(a) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) in respect of a proceeding about a question of practice and procedure in the Court of Appeal in relation to Mr Vaughan’s application to set aside or vary the security for costs orders.  An issue was raised before Bond JA as to whether Mr Vaughan’s application to set aside or vary the security for costs order was made pursuant to r 772(4) or r 675 of the UCPR but as Bond JA observed (at p 5 of the reasons), on the facts pertaining to Mr Vaughan’s application, it was not necessary to dwell on the differences between the two rules, as Boddice JA had jurisdiction to make the security for costs order and Bond JA had jurisdiction, on proper cause being shown, to vary the order.
13. [13]
    In relation to the application made by Mr and Mrs Jilek on the same date for orders dismissing Mr Vaughan’s appeal for the failure to provide security or to make a guillotine order dismissing the appeal in the event that security was not provided within a new stated time, Bond JA found (at pp 7-8 of the reasons) that a single judge of appeal had jurisdiction pursuant to s 44(1)(b) of the Act to make the guillotine order which would have the effect of dismissing the appeal, if the security were not provided by Mr Vaughan.  It is also arguable that a single judge of appeal has jurisdiction pursuant to r 767(a) of the UCPR to make a guillotine order as the consequence for the failure to comply with an order for security for costs is also a question of practice and procedure.  The dismissal of a proceeding for failure to comply with an order for security for costs is contemplated by both r 674(c) and r 774(b) of the UCPR.  A guillotine order is merely a staged order for dismissing an appeal, if the condition that would preclude the guillotine order taking effect is not satisfied.  A guillotine order is generally made to save costs by reducing the attendances at court for the party seeking the dismissal.
14. [14]
    The reason that Bond JA refused to set aside or vary the security for costs order (other than extending the date for compliance) was that Mr Vaughan had not shown a relevant change of circumstances and Bond JA described (at p 7 of the reasons) the application as “utterly unmeritorious and it should never have been brought”.
15. [15]
    Bond JA expressed the view (at p 6 of the reasons) that to the extent that Boddice JA assessed Mr Vaughan’s prospects of success on the appeal as poor, Boddice JA was “plainly right”.  Bond JA explained (at p 6 of the reasons) that the nature of Mr Vaughan’s appeal was against discretionary orders of practice and procedure made in the District Court and that, as authorities such as Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd (2021) 9 QR 141 at [11]-[14] show, “generally an appellate court will not interfere unless, in addition to error of principle, the appellant demonstrated that the order will work a substantial injustice to one of the parties”.  On that basis, Bond JA (at p 8 of the reasons) exercised the discretion to make the guillotine order, if the security for costs order were not complied with by Mr Vaughan, and rejected Mr Vaughan’s submission that such an order was unfair.
16. [16]
    Mr Vaughan’s application for review comprises 21 pages and is in the nature of a submission based on his interpretation of various rules of the UCPR and provisions of legislation.  Apart from the submission made about lack of jurisdiction, the submissions otherwise are not directed at matters relevant to showing error of the kind that could result in this Court seeking to discharge or vary the orders made by Bond JA.  Mr Vaughan’s submission that Bond JA had no power to vacate the hearing date of the appeal has no substance when the appeal was stayed as a result of the security for costs order.
17. [17]
    Mr Vaughan has persisted in seeking a review of a security for costs order first made by Boddice JA in respect of which Bond JA refused to exercise the power to set aside or discharge the order and made a guillotine order for the dismissal of Mr Vaughan’s appeal if he did not provide the security for costs within the relevant time.  The orders made by Bond JA were discretionary orders on practice and procedure that cannot be characterised as not reflecting a proper exercise of the discretion in dealing with the applications.
18. [18]
    Mr Vaughan’s application for review of Bond JA’s orders must be dismissed.  Although Mr Vaughan opposed the making of a costs order against him, particularly because of the genuineness of his convictions about the submissions he advanced on the application for review, that is no reason why costs should not follow the event.  Mr Vaughan has applied for a certificate under the Appeal Costs Fund Act 1973 (Qld) but, as is apparent from these reasons, it is not an appropriate case for such a certificate if there were jurisdiction to order such a certificate.  The order which should be made is: Application filed on 15 August 2023 is dismissed with costs.
19. [19]
    BURNS J:  I agree.
20. [20]
    KELLY J:  I agree.