Carol Farrell by her next friend Ronald Charles Waugh v Royal Kings Park Tennis Club (Incorporated)

[2007] WASCA 173

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Security for costs
3. › Appeal
4. › Appellant suing by next friend
5. › Next friend an undischarged bankrupt
6. › Whether security should be ordered
7. › Relevant considerations on application for security for costs of appeal
1. Practice and Procedure
2. › Costs
3. › Liability of next friend for costs
4. › Whether s 37(1) of Supreme Court Act 1935 (WA) abrogated general rule of practice
5. › Whether general rule inconsistent with O 66 r 6 or O 70 r 2 of Rules of the Supreme Court 1971 (WA)
6. › Supreme Court Act 1935 (WA), s 37(1)
1. Practice and Procedure
2. › Parties
3. › Persons under disability
4. › Office of next friend
5. › Nature and incidents of office
6. › Personal liability for costs

Quick Take

Section 37(1) of the Supreme Court Act 1935 (WA) does not abrogate the general rule that a next friend is personally liable for the costs of a successful defendant or respondent. Where a next friend is an undischarged bankrupt and is not suing for his or her own benefit, the discretion to order security for costs on appeal is enlivened. The appellant bears the evidentiary onus of demonstrating that the appeal would be frustrated by an order for security and that the general rule should not apply.