Boensch v JJ Richards & Sons Pty Ltd [2018] NSWSC 1683

Boensch v JJ Richards & Sons Pty Ltd [2018] NSWSC 1683

The plaintiff did not show error in the registrar's conclusion. Although the appeal grounds were expressed in the language of jurisdictional error, they in substance asserted factual error by the magistrate; the appeal would at best require leave on mixed fact and law issues and at worst raise questions of fact beyond the Court's appellate authority. The appeal would also necessarily confront adverse credibility findings. Even assuming the security order might stultify the appeal, the appeal was hopeless or unreasonable and therefore special circumstances justified security for costs under r 50.8.

Jurisdiction
Australia
Judgment Date
13 September 2018
Procedural Posture
Appeal From Local Court Decision; Motion to Set Aside Registrar's Security for Costs Orders / Determination of Plaintiff's Notice of Motion Filed 19 July 2017
Outcome
Plaintiff's notice of motion filed 19 July 2017 dismissed.
Legal Topics
['security for Costs' 'appeal From Local Court' 'special Circumstances Under R 50.8 of the Uniform Civil Procedure Rules 2005 (nsw)' 'unrepresented Litigant' 'failure to Comply With Directions']
['civil Procedure' 'appeals'] ['security for Costs' 'appeal From Local Court' 'special Circumstances Under R 50.8 of the Uniform Civil Procedure Rules 2005 (nsw)' 'unrepresented Litigant' 'failure to Comply With Directions']

Case Brief

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Procedural Posture

Appeal From Local Court Decision; Motion to Set Aside Registrar's Security for Costs Orders / Determination of Plaintiff's Notice of Motion Filed 19 July 2017

Legal Issues

  1. 1 ["Whether the registrar's orders for security for costs should be set aside." 'Whether special circumstances existed under r 50.8 of the Uniform Civil Procedure Rules 2005 (NSW).' "Whether the plaintiff's appeal was hopeless or unreasonable, or was a bona fide and reasonably arguable appeal that would be stifled by security for costs." 'Whether the grounds of appeal raised questions of law, mixed fact and law requiring leave, or impermissible questions of fact.']

Ratio Decidendi

The plaintiff did not show error in the registrar's conclusion. Although the appeal grounds were expressed in the language of jurisdictional error, they in substance asserted factual error by the magistrate; the appeal would at best require leave on mixed fact and law issues and at worst raise questions of fact beyond the Court's appellate authority. The appeal would also necessarily confront adverse credibility findings. Even assuming the security order might stultify the appeal, the appeal was hopeless or unreasonable and therefore special circumstances justified security for costs under r 50.8.

Court Disposition

Plaintiff's notice of motion filed 19 July 2017 dismissed.

Orders

  • ["The plaintiff's notice of motion filed 19 July 2017 is dismissed." "The plaintiff is to pay the defendant's costs of that motion." 'The time for making the first payment contemplated by order 1 made by the registrar on 23 June 2017 is extended to 28 days from 13 September 2018, that is, 11 October 2018.' 'If the...