Attorney-General of Botswana v Aussie Diamond Products Pty Ltd
[2011] WASCA 81
•4 APRIL 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ATTORNEY-GENERAL OF BOTSWANA -v- AUSSIE DIAMOND PRODUCTS PTY LTD [2011] WASCA 81
CORAM: NEWNES JA
HEARD: ON THE PAPERS
DELIVERED : 4 APRIL 2011
FILE NO/S: CACV 73 of 2010
BETWEEN: ATTORNEY-GENERAL OF BOTSWANA
Appellant
AND
AUSSIE DIAMOND PRODUCTS PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MURPHY J
Citation :ATTORNEY-GENERAL OF BOTSWANA -v- AUSSIE DIAMOND PRODUCTS PTY LTD [No 3] [2010] WASC 141
File No :CIV 1139 of 2008
Catchwords:
Practice and procedure - Security for costs - Dispute as to amount to be provided - Relevant principles - Turns on own facts
Legislation:
Nil
Result:
Security in the sum of $35,000 to be provided
Category: B
Representation:
Counsel:
Appellant: No appearance (heard on the papers)
Respondent: No appearance (heard on the papers)
Solicitors:
Appellant: Lavan Legal
Respondent: Crawford Legal
Case(s) referred to in judgment(s):
Brundza v Robbie & Co (No 2) (1952) 88 CLR 171
NEWNES JA: The respondent seeks an order that the appellant provide security for the costs of the appeal. The appellant accepts it is appropriate that an order for security for costs be made but the parties have been unable to agree on the amount of the security.
There are no hard and fast principles to be applied in resolving that issue. While it is clear that the amount of the security to be provided by an appellant must be related to the costs likely to be incurred by the respondent on the appeal, in ordering security for costs the court does not endeavour to give a complete and certain indemnity to the respondent: Brundza v Robbie & Co (No 2) (1952) 88 CLR 171, 175. The amount of security involves an exercise of discretion and is to be determined by what the court considers just in the circumstances. The factors to be taken into account in the exercise of the discretion will depend upon the particular circumstances of the case and, whilst the amount of the respondent's likely taxed costs is ordinarily a primary consideration, in exercising its discretion the court is not confined to the question of the amount of those costs.
In this case, the respondent's application has, for the purposes of quantifying the costs, been broken down into two components. One relates to the costs thrown away by reason of the appellant's amendments to the grounds of appeal, and the other to the respondent's costs otherwise of the substantive appeal.
I will deal first with the costs which the respondent says have been wasted by reason of the amendments to the grounds of appeal. Those costs are the subject of a draft bill in the total sum of $23,589.90. In considering the amount claimed, it is necessary briefly to outline the relevant history of the appeal.
The appellant's case, containing the notice of appeal, was filed and served on 24 August 2010. On 15 September 2010, the court issued a notice to the parties requiring their attendance at a directions hearing before a single judge of appeal on 15 October 2010. The parties were informed by a letter of 23 September 2010 that the matters to be considered at the directions hearing would include the form of the grounds of appeal. On 1 October 2010, the solicitors for the respondent wrote to the appellant's solicitors inviting the appellant to amend the grounds of appeal.
At the hearing on 15 October 2010, the appellant's counsel told the court that the appellant proposed to make amendments to the grounds of appeal. An order was made that the appellant file minutes of amended grounds of appeal and amended submissions on or before 29 October 2010. Those minutes were filed on 9 November 2010. I should say that no orders have been made for the amendment of the grounds of appeal but the parties have proceeded on the basis that such orders will be made in due course and I will also proceed on that basis.
The costs said by the respondent to have been wasted relate to the case on appeal so far as it has been abandoned or amended in the minutes. The costs are, in substance, in respect of 29 hours of the time of its senior counsel reviewing the grounds of appeal and the appellant's submissions, and preparing submissions in response; 10 hours of the time of senior counsel and a senior practitioner preparing for and attending the hearing on 15 October 2010; and six hours of the time of a senior practitioner in getting up the appeal for hearing.
The appellant contests the amount sought. It contends, in effect, that having been put on notice that the court was intending to consider the grounds of appeal there was no reason for the respondent's legal advisers to have spent substantial time reviewing the grounds of appeal and submissions, and preparing for and attending on the directions hearing on 15 October 2010. It also contends that the amendments to the grounds of appeal and submissions are matters of form rather than substance, so that little of the time spent in relation to the original grounds of appeal and submissions will in fact be wasted. The appellant further says that the amounts claimed are excessive in any event.
On the necessarily limited information before me it is very difficult at this point to make an assessment of the wasted costs. I am satisfied, however, that it was not unreasonable for the respondent's legal advisers to proceed to review the original grounds of appeal and submissions. They could not be expected simply to down tools because the parties had been advised that grounds of appeal were to be considered by the court at a directions hearing.
I consider, however, that the sum claimed of $23,589.90 is excessive. While the amendments to the grounds of appeal go beyond purely matters of form, on what is before me I am not satisfied that the work done in considering and responding to the original grounds of appeal has been completely, or very substantially, wasted and, in any event, I consider the amount claimed is much too high. The amounts claimed in respect of the directions hearing on 15 October 2010, and for costs wasted on getting up the appeal for hearing, also seem to me to be substantially in excess of any amount that would be likely to be recoverable on taxation. I consider that an appropriate amount by way of security in relation to this aspect of the costs would be $5,000.
Turning then to the substantive costs of the appeal, the respondent seeks security in an amount of $56,947. It is unnecessary to set out the sums claimed in respect of the various items in the scale of costs. I note, however, that they include a further amount for attending on the directions hearing on 15 October 2010, and amounts for a possible application to strike out the grounds of appeal (which now appears unlikely to be made) and for an attendance (which did not eventuate) on the application for security for costs.
I have had regard to the nature and complexity of the appeal so far as that can be gleaned from the reasons for decision of the primary judge and the grounds of appeal and submissions of the appellant. I have also considered what has been put before me by way of affidavit evidence by the parties and their respective written submissions. I note that the appellant considers the appeal is likely to take one and a half days, and for present purposes I accept that estimate.
In my view, an appropriate sum by way of security for this aspect of the costs would be $30,000. I would therefore order that security be provided in the total sum of $35,000 and the appeal be stayed pending the provision of that security.
As in the future unforeseen circumstances may arise which have a bearing on the amount of the security, I would give the parties liberty to apply on seven days' written notice should that occur.
The respondent seeks an order for either the payment into court of the amount of the security or delivery to the Court of Appeal Registrar of an unconditional bank guarantee in that amount. I do not think that necessarily exhausts the range of possibilities. In any event, the form of the security and the time within which it should be provided are matters which ought to be capable of resolution between the parties and I would simply observe that it is obviously desirable that the security be provided in a manner which avoids both unnecessary costs and, so far as reasonably practicable, the depreciation of the amount while it is held by way of security.
The parties should submit an agreed minute of orders giving effect to these reasons and dealing with the time and form in which the security is to be provided. In the unfortunate event that agreement cannot be reached on the timing and form of the security, each party should file a minute of the orders they seek and, to the extent the minutes differ, a brief written submission as to why the orders they seek are the appropriate orders.
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