DISTRICT COURT OF QUEENSLAND

1. [1]
   The respondent Utz Wellner brought an action in the magistrates court against the appellant claiming legal fees and outlays. An application by him in that action came before a magistrate on 28 July 2006. On that occasion the defence and counterclaim were struck out, and judgment was given apparently under r 292 for the plaintiff for the amount claimed, $13,892.55, together with costs which came to $2,410.32. A notice of appeal was filed in this court by the defendant on 24 August 2006, appealing against those orders and judgment. The respondent filed an application on 28 September 2006 seeking an order that the appeal be struck out as frivolous, vexatious or an abuse of process, or for non‑compliance with r 747(1) with the UCPR, or in the alternative, that the appellant give security for costs of the appeal. It was this application which came on before me.

Background

2. [2]
   The appellant’s former wife commenced a proceeding in the Federal Magistrates Court against the appellant for orders altering their interests in their property. The appellant retained the respondent in relation to that proceeding. Following a hearing, certain orders were made which the respondent regarded as favourable to the appellant, but he wanted to appeal against them. As a result, the retainer of the respondent came to an end. The claim in the magistrates court was for work done by the respondent under that retainer. The material before me suggests that, as well as the matter going on appeal to a single judge of the Family Court, there were subsequently an appeal to the Full Court of the Family Court, and an application for special leave to appeal to the High Court of Australia.

3. [3]
   The material makes no reference to any client agreement between the appellant and the respondent. It follows that the amount the respondent was entitled to recover for work done for the appellant was the amount calculated in accordance with the scale for work in the Federal Magistrates Court or (if there is no scale) a reasonable amount.^[1]On or about 20 February 2004 the respondent sent to the appellant a letter enclosing an itemised bill of costs said to be in accordance with the scale of costs prescribed by order 38 of the Family Court Rules 1954, and a notice in accordance with order 38 rule 2 of the rules. That bill came to $13,892.56, including $5,013.30 outlays, mostly counsel’s fees. The notice attached referred to the mechanism for resolving a dispute as to the amount of the bill at a taxation hearing under the Family Court rules. Under the Federal Magistrates Court Rules, however, any dispute between lawyer and client is to be dealt with under the state legislation.^[2]  Accordingly, when the appellant sought to challenge the bill and went to the court registry, he was referred to the Solicitors Complaints Tribunal.

The effect of the abortive reference to an assessor

4. [4]
   The applicable state legislation is the Queensland Law Society Act 1952. That Act provides for the Solicitors Complaints Tribunal, and for the chairperson of the Tribunal to approve costs assessors:  s 6FA. Under that Act, a client may apply to the Tribunal for appointment of a costs assessor to assess the account, provided the client gives the clerk of the Tribunal a notice of objection stating to the best of the client’s ability the items in the account to which the client objects and the client’s grounds for the objection:  s 6ZA. The clerk of the Tribunal then appoints a costs assessor (s 6ZC), who presumably then assesses the costs. Section 6ZE provides that such a cost assessment is binding if the practitioner and the client have agreed that it be binding, or if no application is made within 30 days to the court to decide the reasonableness of the fees charged in the assessed account. By subsection (2), a binding cost agreement may be enforced as a debt for the assessed amount and the parties may not subsequently challenge the amount payable.

5. [5]
   In the present case, however, there was no cost assessment by the assessor appointed by the clerk of the Tribunal, and therefore there could never have been a cost assessment which was binding and enforceable as a debt, and which the appellant was not permitted to challenge in terms of amount. What happened here was that the cost assessor required an amount to be paid in effect as security of costs. It is not entirely clear to me on what basis the client could be required to give security,^[3]but in any case it was not provided, and as a result on 19 January 2006 the Tribunal informed the appellant that the appointment of the assessor was being rescinded. A letter from the clerk of the Tribunal of that date went on to note that the solicitor was at liberty to take action against the appellant for the recovery of the fees should the matter not already be resolved.

6. [6]
   Section 48J of the Act provides that a practitioner may start a proceeding in court to recover fees or costs from a client only if there was first given to the client an account that sets out all items of work done and the amount charged for each, and further:

“The practitioner or firm must obtain the court’s leave to start the proceeding if –

1. (a)
   it is one month or less since the account was given; or

2. (b)
   the client has applied for an appointment by the clerk of the Tribunal of a costs assessor to assess the account and the assessment has not concluded.”

7. [7]
   In the present case, the period of one month had expired since the account was given, but the appellant had applied for the appointment of a costs assessor to assess the account, and at the time the proceeding in the magistrates court was commenced, there had not been an assessment by the assessor of the account.^[4]  It does appear that as far as the tribunal was concerned, the assessment was concluded. On the other hand, s 48Q of the Act provides that “the costs assessment is not concluded until the costs assessor gives a copy of the assessment to the client and the practitioner or firm.”  Applying that section literally, it seems to me that it is at least arguable that the respondent required leave to commence this proceeding. It does not appear that such leave was obtained.

8. [8]
   Be that as it may, in circumstances where there was no binding cost assessment, it remained open to the appellant to challenge the quantum of the costs payable to the respondent in the proceedings in the magistrates court to enforce the liability for costs. Apart from the fact that there is no provision in the Act to the contrary, such an interpretation is consistent with the provision of ss 48K and 48L, which contemplate that a court may appoint a Tribunal costs assessor or someone else to assess an account in a proceeding to recovery the costs, and have regard to that assessment in the proceeding.^[5]

The defence filed

9. [9]
   The claim and statement of claim by the plaintiff against the defendant were filed in the magistrates court on 22 December 2005. The appellant filed a notice of intention to defend and defence on 16 March 2006. In that document, the appellant admitted that he had retained the respondent as his solicitor in family law proceedings, and otherwise did not admit or denied the facts alleged in the statement of claim. Most of the allegations were not admitted, and it was alleged that the proceeding ought not to continue until allegations of misconduct by the respondent made by way of compliant to the Queensland Law Society had been investigated. That in itself obviously did not give rise to a good ground of defence.

10. [10]
    Paragraph 4 denied the allegations in paragraph 11 of the statement of claim, which was the paragraph which claimed payment of the amount in the bill, and continued that this was “because apart from a tax invoice for $60 being for a consultation in January 2003, the defendant had no agreement with the solicitors and as there was one conciliation conference, two or three interim hearings, and a trial lasting one and one half days whereby it is claimed the solicitor failed in their duty of care to their clients. The claim for $13,892.56 has not been justified or itemised, and the defendant requests that it be dismissed.”

11. [11]
    This raised a number of distinct issues. The allegation that there was no agreement with the solicitors is of no consequence; the retainer was expressly admitted by the admission of paragraph 2 of the statement of claim,^[6]and the respondent does not rely on a costs agreement in order to support the claim for costs and fees, at least insofar as I can see on the material before me.^[7]The proposition that the claim has not been justified or itemised is difficult to reconcile with the fact that there was an itemised bill delivered, but it was correct to say that the figure has not been “justified” in the sense that it was not the product of an assessment under the Act, so that it is not a figure which was conclusive against the appellant. The proposition that the respondent failed in his duty of care to the appellant in connection with the trial, although unparticularised, may be capable of amounting to a good plea by way of defence; there is some authority to support the proposition that a solicitor is not entitled to charge a client for legal work if it is done negligently.^[8]It is unnecessary for present purposes to decide whether this was a sufficient plea, but arguably it was.

12. [12]
    The defence included what was described as a statement marked Annexure A, and the counterclaim which went on after the defence simply claimed that the claim by the plaintiff be dismissed and that the original complaint to the Queensland Law Society be granted. Little needs to be said about the counterclaim; it obviously did not disclose a reasonable cause of action. The first item of relief sought is not something which needs to be claimed by way of counterclaim, and is meaningless in that context. The second part did not seek any relief which it was within the jurisdiction of the magistrates court to grant. It follows therefore that the counterclaim was appropriately struck out.

13. [13]
    The statement Annexure A actually contains more allegations against the respondent, essentially in the form of basic particulars of the allegation of breach of duty of care. It was alleged that the respondent failed to obtain valuations of property and assets for the client, failed to use previous valuations of assets, failed to negotiate with the other party, failed to identify all of the assets owned by the wife in court documents, failed to discover “cost memorandum” details from an identified firm (the significance of this allegation is not apparent, but it may have some significance), failed to put evidence of valuation before the appeals court of the Family Court, failed to use relevant and applicable case law, failed to notify the appellant of the appeal by the other party and “perform” (sic ? prepare) documents for a cross‑appeal, and failed to make allowance in the account for a tax invoice for $60 in January 2003 (which, inferentially, had already been paid). There are also two other allegations, one alleging some contact with the family court judge before the appeal was heard, which is difficult to understand and does not suggest any actionable breach of duty of care, and a complaint about a failure of the Law Society, or perhaps the Legal Services Commission, to deal adequately with the matter.

The application to the magistrate

14. [14]
    There is much about this which is unsatisfactory, and no doubt some of it clearly does not and could not amount to an allegation which might give rise to a ground of defence. But it is difficult to say that nothing in the document could possibly give rise to any fairly arguable ground of defence. The respondent’s application in the magistrates court sought the striking out of the defence (and counterclaim) for failure to comply with rules 149, 155, 157, and 171 of the UCPR, and in the case of the defence failing to disclose a reasonable defence. It is not immediately obvious how rule 155 was relevant to the defence, or indeed to the counterclaim in circumstances where there was no claim for damages in the counterclaim. A breach of rule 149 may well lead to a pleading or part of the pleading being struck out, but ordinarily that would lead to liberty to replead, and would not lead to a pleading being struck out without liberty to replead.

15. [15]
    Under rule 171 a pleading can be struck out without liberty to replead, but the test is that laid down by the High Court in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 130:  that the case of the party in question is so clearly untenable that it cannot possibly succeed. An order is not to be made under this rule without liberty to replead just because of some defect in the pleading:  Noble v Victoria [1999] QCA 110. The General Steel test would also apply to striking out for failure to disclose a reasonable defence, something which was covered anyway by rule 171(1)(a); again, what matters is whether there was liberty given to replead, and for liberty to replead not to be given the General Steel test must be satisfied.

16. [16]
    The reasons of the magistrate did not suggest the General Steel test had been applied. On the contrary, the magistrate seems to have taken the view that because there had been a reference to the Solicitor’s Complaints Tribunal, and the Legal Services Commission, “the defendant had been offered every chance to have this complaint aired”; but that was not the issue the magistrate had to decide. If the defendant’s complaint meant that the plaintiff was not entitled to recover all or part of the costs claimed, the defendant was entitled to have that complaint aired in the magistrates court action. It does not appear that anything happened in any of the other tribunals which gave rise to any issue estoppel, or in any other respect bound magistrates court. What concerns me about this remark is that it suggests a process of reasoning to the effect that the magistrate did not need to consider whether the defendant’s allegations had any substance, rather than a conclusion following on examination of them that they did not.

17. [17]
    In the case of the counterclaim, I have no particular concern about the magistrate’s reasons. Whether or not the reasons are correct, in my opinion it is clear that the decision to strike out the counterclaim was appropriate. The application of the General Steel test does in my opinion lead to that conclusion. Striking out the defence, however, is another matter. Given the nature of the application before me, which does not involve final determination of the issues in the appeal, it is not appropriate for me to decide now whether or not the magistrate’s decision to strike out the defence was a decision which was open in the circumstances of this matter. It is sufficient for me to say that in my opinion it is at least fairly arguable that such a decision was not open in the circumstances of this matter, in the light of the considerations set out earlier.

18. [18]
    The magistrate also gave judgment for the respondent against the appellant presumably under r 292.^[9]That required a finding that the appellant had no real prospect of successfully defending all or any part of the respondent’s claim, and that there was no need for a trial of the claim or any part of it. It does not appear that the appellant filed any affidavit in response to this application and the affidavit filed on behalf of the respondent in support of it, although the appellant did file an application on 28 July 2006 in response, seeking details of the respondent’s professional indemnity insurance, and that the court dismiss the plaintiff’s action with costs. No ground for such order was identified in the application, although it may be arguable that a basis in support of such an order may be found in s 48J(2) of the Act, if that were applicable. In any case, this application was dismissed by the magistrate.

19. [19]
    On an application under r 292, the plaintiff carries the onus of showing that the requirements of the rule have been met. Commonly, a defendant seeking to resist an application for summary judgment will file affidavit material on the basis of which it is sought to show that the requirement of the rules are not met, but it is not necessary to do so. In principle, a defendant may be able to show that the requirements of the rule are not met, or simply that the plaintiff has failed to discharge the onus under r 292, by reference to the pleadings and the material filed in support of the application on behalf of the plaintiff. The fact that there is no affidavit on behalf of the appellant was not necessarily fatal to success before the magistrate, or on appeal from the magistrate’s order.

20. [20]
    Furthermore, on an application under r 292 a defendant is not confined to defences arising on the existing pleading. That rule is directed to the apparent outcome at any future trial, and in its application must bear in mind that under the rules pleadings can be amended prior to, and indeed in some cases even during, a trial. Accordingly, what is important for that rule is not whether the defendant has pleaded any ground which has a real prospect of succeeding, but whether a defendant really has no real prospect of successfully defending the claim.

21. [21]
    It is I think at least arguable that under these rules a mere assertion in a pleading is not in itself enough to show a matter of defence, at least in the case of a matter on which the defendant would have the onus,^[10]at least in a situation where there is no proper pleading of anything which would amount to a good ground of defence. It is unnecessary now to decide whether the mere assertion by the appellant that there was a breach of duty of care on the part of the respondent, unsupported by particulars or affidavit, could be a sufficient basis to justify refusing to give summary judgment under r 292. Nevertheless, it does seem to me that on the plaintiff’s material there was at least one ground^[11] arguable, that the failure to obtain leave before the proceeding commenced (assuming that there was such a failure) meant that the plaintiff was not entitled to proceed. It is I think at least fairly arguable on appeal that, on a proper application of the rule as explained by the Court of Appeal in Deputy Commissioner of Taxation v Salcedo [2005] QCA 227, this in itself was sufficient as a response by the appellant to an application for summary judgment.

22. [22]
    Even apart from this, in principle in the absence of assessment by an assessor appointed under the Act, the appellant is entitled to dispute the question of quantum in these proceedings. The magistrate does not appear to have appreciated that, and it seems to me that the mere fact that there is that entitlement means that, at least arguably, it was inappropriate to give summary judgment, on the basis that that fact in itself provided a justification for having a trial of the claim. That is a further basis upon which at least arguably summary judgment ought not to have been given, notwithstanding the absence of any affidavit material on behalf of the appellant, or indeed any properly pleaded ground of defence.

Is the appeal frivolous, vexatious or an abuse of process?

23. [23]
    In these circumstances it seems to me that on principle there are at least some matters raised by the judgment subject to the appeal which could at least arguably amount to a legitimate basis for an appeal. In these circumstances, the appeal should not be struck out on the ground that it is frivolous, vexatious or an abuse of process. There is no evidence to suggest that there is any improper purpose on the part of the appellant in pursuing the appeal; on the face of it, the appellant is seeking to pursue the appeal because he is seeking to escape from the consequences of the judgment which has been given against him in the magistrates court. That is what an appeal is for. There is no evidence that the appellant does not believe in the appeal, even if his belief may be uninformed or even misguided, nor is there any reason to think that the appeal was instituted merely to vex the respondent. In circumstances where there has been no hearing on the merits of the appellant’s complaint in these proceedings, or in other proceedings which could give rise to an issue estoppel in relation to these proceedings, I think it is a little hard to say that there is necessarily nothing in the appellant’s complaints.

24. [24]
    In these circumstances, the respondent has not demonstrated that the appeal is frivolous, vexatious or an abuse of process, and I will not strike out the appeal on that ground.^[12]

25. [25]
    There is, however, one complication with this appeal, which was not raised specifically on behalf of the respondent. The proceeding in the magistrates court was initially a claim by a plaintiff identified as “Utz Wellner trading as Wellners Lawyers”. I have previously commented on the inappropriateness of this form of description of a party in a proceeding under the UCPR,^[13]but in any event, the effect of it was clear:  the plaintiff is Utz Wellner.^[14]When the defendant filed a notice of intention to defend and defence and counterclaim, however, he described the plaintiff as “Utz and Robyn Wellner trading as Wellners Lawyers”. If the defendant’s point was that it was not Utz Wellner but Utz and Robyn Wellner with whom he dealt, that should have been pleaded; it was not appropriate for him to make a unilateral variation to the title to the proceeding.

26. [26]
    So far as the counterclaim is concerned, it is possible under the rules to have a counterclaim against the existing plaintiff and an additional party, although there are particular requirements under r 178 when this is done, including service on the additional party, and it is not at all clear that those requirements were satisfied here. It is unnecessary to consider, however, whether the existence of a counterclaim justifies the continued inclusion in the action of Robyn Wellner as a party, in circumstances where in my opinion the counterclaim was appropriately struck out by the magistrate. The notice of appeal of the appellant identified as the respondents “Utz and Robyn Wellner trading as Wellners Lawyers”. If one treats what was filed in the magistrates court as a counterclaim against the existing plaintiff and an additional party, insofar as the appellant is seeking to appeal against the order striking out the counterclaim, it was appropriate that the notice of appeal identify as respondents what had become both of the other parties to the proceeding in the magistrates court at the time the magistrate made the order. I am not at all persuaded that that was the real effect of what occurred in the magistrates court, and in any case, in circumstances where the order of the magistrate, insofar as it involved striking out the counterclaim, was clearly correct, there is no justification in the continued involvement of Robyn Wellner as a party to the appeal. It is therefore appropriate that Robyn Wellner be struck out of the appeal. The respondent should in the future be identified simply as Utz Wellner.

Form of the notice of appeal

27. [27]
    In the alternative, an order was sought that the notice of appeal was struck out for failure to comply with r 747(1) of the UCPR. That will apply with necessary changes:  r 785 (1). One of the changes, however, is that the approved form required is that specified in r 786 (form 96), not the approved form for r 747 (form 64). In the present case, neither such form was used:  form 27 under the Justices Act, the form for an appeal under s 222 of that Act, was used. In other respects, however, the requirements of r 747(1) were essentially complied with. On the face of the notice filed, it is clear enough that the appellant is seeking to appeal against the whole of the decision of the magistrate,^[15]grounds of appeal have been stated, and something has been stated as the decision that the appellant seeks.

28. [28]
    There are some problems with the last of these, since on the face of it the only orders sought by the appellant are the orders which were sought in the application filed by him on 28 July 2006. One would expect that a properly prepared notice of appeal would seek orders that the orders of the magistrate be set aside, and that in lieu thereof the respondent’s application be dismissed, and as the notice stands there is an inconsistency between the apparent challenge to the whole of the order of the magistrate, and seeking only orders which would have been appropriately made only on the appellant’s application, if it were successful. That error was a deficiency which can I think be easily corrected.

29. [29]
    A notice of appeal from the magistrates court to the District Court is also required by r 786(1) to state some additional matters and not all of that has been provided. The notice of appeal did not state whether the appellant was seeking to put further evidence before the court, nor did it have all the information required by r 17:  there was no address for service within 30 kilometres of the registry of the District Court in Brisbane. These deficiencies, however, are only an irregularity, and do not make the notice of appeal a nullity:  UCPR r 371(1). A more appropriate course, at least in the first instance, is to require deficiencies of substance within the notice of appeal to be remedied.

30. [30]
    There are also some difficulties with the grounds stated as grounds of appeal. In the first place, they are not particularly clearly expressed, but what is stated in the body of the notice of appeal appears to me to boil down to two assertions: first, the appellant did not appreciate that on this occasion there was to be a determination of whether there would be a judgment on the plaintiff’s claim, and he thought that all that would happen on this occasion was that a date for the trial, or perhaps a court hearing of the respondent’s application, would be set. That in itself may arguably be a ground for appeal, on the basis that the appellant did not have procedural fairness, because he had not had sufficient notice of the nature of what was to occur on the date on which the matter was determined by the magistrate. It is unnecessary for present purposes for me to decide whether it is a good ground of appeal, in the sense that it is a ground on which the court would allow the appeal; it seems to me that it satisfies the requirement of the rule that the notice state the ground of appeal.

31. [31]
    The other ground stated was that the magistrate was biased. Again, on the face of it what was stated is a ground of appeal. The matter set out in the notice of appeal does not suggest that there was any particular substance in the assertion of bias, and there may well by a good deal of force in the proposition advanced by the respondent that this is not a matter which can be argued on appeal in circumstances where there is no application to the magistrate to disqualify himself.^[16]Nevertheless, it is something which can be readily identified as a ground of appeal, and in that respect satisfies the requirements of the rules that the grounds of appeal be stated.

32. [32]
    There were additional grounds of appeal said to be attached in Annexure A. What was attached, however, was identified as being from the application to the High Court of Australia, or as perhaps something which had been attached to that application. It sets out various grounds which may well be meaningful in the context of an appeal in the appellant’s proceedings as commenced by the hearing in the Federal Magistrates Court. These matters obviously cannot raise any issue which could amount to a ground of an appeal from the decision of the magistrate on 28 July 2006. This part of the notice of appeal is certainly entirely inappropriate, and should be struck out.

33. [33]
    To some extent, the grounds of appeal have now been amplified in practice by the outline of argument that the appellant has filed in accordance with the practice direction. This provides more detail in relation to some of the matters sought to be raised by way of defence in the magistrates court, though as may be expected of a litigant in person, they do not provide a legal argument which is formulated with any degree of legal precision. One of the matters raised was inadequate representation at a costs hearing on 3 October 2003. The itemised account does not include anything for 3 October 2003, though it does include an item on 4 October for a solicitor’s perusal of an email report from counsel on the other party’s application for costs “and consequential outcome on 3/10/03 (5 folios).”  That provides some basic support for the notion that the solicitors did not do anything in relation to the costs hearing, which may, depending on other circumstances which do not emerge from the material, but which no doubt could be explored if there were a trial in the magistrates court, provide some basis for an allegation that there was some breach of duty of care in the way this matter was handled by the respondent. Another fairly specific matter raised was that all photocopying was done by the appellant, but still was billed. That allegation strikes me as something which could properly be raised by way of defence, at least to that part of the bill, and a matter which would be difficult to resolve except by some sort of trial.

34. [34]
    Of perhaps greater significance is the absence from the notice of appeal of any of the various grounds which it occurs to me are or at least may well be fairly arguable in respect of this decision. The notice of appeal can be amended.^[17]In my opinion the more appropriate course to adopt is simply to declare the notice of appeal to be effectual (under r 371(2)(b)) and give the appellant leave to file an amended notice of appeal within a specified time, say 14 days. Any deficiencies in the notice of appeal are not sufficiently serious to justify striking it out at this stage.

Security for costs

35. [35]
    That then leaves the question of security for costs. No doubt there is power to order security for costs of an appeal under r 772, made applicable by r 785. The discretion to do so is unfettered, and a (non‑exhaustive) list of factors to be taken into account appears in the judgment of Jerrard JA in Natcraft Pty Ltd v Det Norske Veritas [2002] QCA 241:  the appellant’s prospects of success; the financial position of the appellant; the fact that an appellant has already had a “day in court” and lost on the merits; whether the appellant blames any impecuniosity on the respondent when he seeks the order; whether any undertaking by someone who stands behind an impecunious company has any value; and whether there has been delay in bringing the application for security of costs. It has also been said that it is inappropriate for an impecunious appellant to be required to provide a greater security than is absolutely necessary.^[18]

36. [36]
    In the context of the present case, the existing grounds advanced for the appeal in the notice of appeal certainly appear unpromising, but as indicated above, it does seem to me that there are at least some seriously arguable grounds available to the appellant, and on the face of it, it seems to me that he has reasonable prospects of success on the appeal, at least to some extent. There is, so far as I can see, no material, on either side, about the financial position of the appellant. Although ordinarily the appellant would be in a much better position to provide this than the respondent, this respondent may be in a position to provide some material about the financial position of this appellant. The absence of any reference to this from either party is surprising.

37. [37]
    The reference to the appellant having had a “day in court” and having lost on the merits cuts both ways, since, although there was a hearing in relation to the application before the magistrate, to some extent it seems to me that a major point in the appeal is that there has not been a proper hearing on the merits of the substance of the appellant’s allegations. There has not been any delay in bringing the application for security for costs in response to this appeal, the application having been filed promptly, and the other matters referred to are, it seems to me, not particularly relevant in this case.

38. [38]
    I also note that in Natcraft Davies JA said at [5] in his reasons that one of the considerations he applied in that case in refusing an order for security for costs was that “where, as here, an appellant, who is not a lawyer, has conducted his own case at trial, the possibility that some unfairness to him in the conduct and consequent error in the outcome of that trial may have arisen, may also be a factor to take into account in such assessment.”  I think that that is a factor which is applicable in the present case as well.

39. [39]
    In the present circumstances, bearing in mind the various factors referred to earlier, on the whole I am not prepared to order security for costs. There are aspects of the approach apparently adopted by the magistrate in this matter which are concerning and it also seems to me that there may well be at least one technical hurdle facing the respondent which was not identified in the magistrates court. In view of that, and bearing in mind that there is simply no material about the financial position of the appellant, and bearing in mind also the factor referred to by Davies JA, and the consideration that this is not an appeal from any sort of hearing on the merits, in all the circumstances I am not prepared to order security for costs of this appeal.

40. [40]
    It follows therefore that I am prepared to order that Robyn Wellner be struck out as a respondent and the annexure to the notice of appeal filed on 24 August 2006 be struck out, but the application is otherwise dismissed. I declare that the notice of appeal is effectual, and give leave to the appellant to file and serve an amended notice of appeal within 14 days. Because of the limited success of the respondent on this application, I will make no order as to costs of this application.