Bagshaw v Jefferson (Trustee) [2002] FCA 1216

Bagshaw v Jefferson (Trustee) [2002] FCA 1216

Security for costs was refused because Mr Bagshaw was impecunious and an order would likely frustrate any appeal rights he may have; the competency of the appeal had been directed to be heard by the Full Court and should not be determined on the motion; and the proposed appeal involved an application to adduce fresh evidence in circumstances where the Court considered it appropriate to permit the appeal to proceed if competent. O 28 r 3(1)(b) did not apply because Mr Bagshaw had an indirect interest in the outcome, and in any event discretion would not be exercised in favour of security. Mrs Bagshaw’s joinder, though procedurally irregular and out of time under O 52 r 15, was validated...

Jurisdiction
Australia
Judgment Date
24 September 2002
Procedural Posture
Appeal; Interlocutory Notices of Motion for Security for Costs and to Strike Out Amended Notice of Appeal / Before a Single Judge on Motions Pending a Full Court Appeal Listed for 18 and 19 November 2002
Outcome
Applications for security for costs and to strike out Mrs Bagshaw from the amended notice of appeal were dismissed; the remaining dismissal/competency motion was referred to the Full Court.
Legal Topics
['security for Costs on Appeal' 'competency of Appeal by Bankrupt' 'joinder of Party to Appeal' 'extension or Validation of Irregular Notice of Appeal' 'equitable Charge']
['bankruptcy' 'civil Procedure' 'equity'] ['security for Costs on Appeal' 'competency of Appeal by Bankrupt' 'joinder of Party to Appeal' 'extension or Validation of Irregular Notice of Appeal' 'equitable Charge']

Case Brief

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Procedural Posture

Appeal; Interlocutory Notices of Motion for Security for Costs and to Strike Out Amended Notice of Appeal / Before a Single Judge on Motions Pending a Full Court Appeal Listed for 18 and 19 November 2002

Legal Issues

  1. 1 ['Whether security for costs should be ordered against Mr Bagshaw in respect of his appeal.' 'Whether security for costs should be ordered against Mrs Bagshaw if she remained a party to the appeal.' 'Whether the amended notice of appeal purporting to add Mrs Bagshaw as a second appellant should be struck out.' 'Whether the joinder of Mrs Bagshaw as a party to the appeal should be validated under O 52 r 14(2).']

Ratio Decidendi

Security for costs was refused because Mr Bagshaw was impecunious and an order would likely frustrate any appeal rights he may have; the competency of the appeal had been directed to be heard by the Full Court and should not be determined on the motion; and the proposed appeal involved an application to adduce fresh evidence in circumstances where the Court considered it appropriate to permit the appeal to proceed if competent. O 28 r 3(1)(b) did not apply because Mr Bagshaw had an indirect interest in the outcome, and in any event discretion would not be exercised in favour of security. Mrs Bagshaw’s joinder, though procedurally irregular and out of time under O 52 r 15, was validated...

Court Disposition

Applications for security for costs and to strike out Mrs Bagshaw from the amended notice of appeal were dismissed; the remaining dismissal/competency motion was referred to the Full Court.

Orders

  • ['I dismiss the applications for relief set forth in paragraph 2 of the notice of motion filed on 2 July 2002 and in paragraphs 1 and 2 of the notice of motion filed on 21 August 2002.' 'I refer the balance of the motion filed on 2 July 2002 to the Full Court in order that it can be dealt with pursuant to the course...