ATTORNEY-GENERAL of Botswana v Aussie Diamond Products Pty Ltd - [2011] WASCA 82

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 82

CORAM: NEWNES JA

HEARD: ON THE PAPERS

DELIVERED : 4 APRIL 2011

FILE NO/S: CACV 76 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 2] [2009] WASC 301
File No  :CIV 1139 of 2008

Catchwords:

Practice and procedure - Security for costs - Dispute as to amount to be provided - Turns on own facts

Legislation:

Nil

Result:

Security in the sum of $10,000 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):

Attorney‑General of Botswana v Aussie Diamond Products Pty Ltd [2011] WASCA 81
Attorney‑General of Botswana v Aussie Diamond Products Pty Ltd [No 2] [2009] WASC 301
Attorney‑General of Botswana v Aussie Diamond Products Pty Ltd [No 3] [2010] WASC 141

NEWNES JA: This is an application by the respondent for an order that the appellant provide security for the respondent's costs of the application for leave to appeal and the appeal. The respondent has sought the sum of $59,945.75 by way of security.
The appellant seeks leave to appeal against an interlocutory decision of Murphy J (as his Honour then was) dismissing an application by the appellant for an extension of time for the filing and service of a witness statement of Mr Michiel Frenken in an action it had brought against the respondent: Attorney‑General of Botswana v Aussie Diamond Products Pty Ltd [No 2] [2009] WASC 301.
The appellant has also appealed separately against his Honour's subsequent decision dismissing the action: Attorney‑General of Botswana v Aussie Diamond Products Pty Ltd [No 3] [2010] WASC 141. The respondent's application for security for costs in respect of that appeal is the subject of separate reasons: Attorney‑General of Botswana v Aussie Diamond Products Pty Ltd [2011] WASCA 81.
The appellant accepts that it is appropriate that an order for security for costs be made for this appeal, but the parties have been unable to agree as to the amount that should be provided by way of security. Before turning to that issue it is necessary to set out a little of the background.
The application for leave to appeal was filed by the appellant on 12 July 2010. It followed an unsuccessful application for leave to appeal made on 9 October 2009, during the course of the trial. On 12 October 2009, Pullin JA refused that application.
The appellant's case was filed on 24 August 2010. There were four grounds of appeal. Among other things, it was alleged that the primary judge erred in finding that Mr Frenken's evidence was not purely responsive to witness statements and an expert report served by the respondent, and in finding that Mr Frenken's evidence was irrelevant. It was also alleged, in substance, that the primary judge erred in concluding that there would be unfair prejudice to the respondent if Mr Frenken's evidence was allowed.
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. That directions hearing was in respect of both this appeal and the substantive appeal. 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.
A minute of amended grounds of appeal was filed on 9 November 2010. The proposed amendments appear relatively minor.
On 30 November 2010, a registrar's notice to attend was sent to the parties requiring their attendance before a single judge of appeal on 21 December 2010 to consider the grounds of appeal and the respondent's application for security for costs, which was filed on 24 November 2010. On 21 December 2010, the appellant delivered a further minute of amended grounds of appeal. It does not appear that the minute has been filed. Again, the proposed amendments do not appear to alter the substance of the appellant's case on appeal. I should also mention that no orders have been made amending the grounds of appeal in terms of the minute but the parties seem to have proceeded on the basis that such orders will be made in due course and I will also proceed on that basis.
On 21 December 2010, an order was made by consent for the provision by the appellant of a draft schedule of the evidence relevant to the appeal. That schedule was filed on 25 January 2011. An order was also made that the application for security for costs be determined on the papers and directions were given for the filing of submissions by each party. Those directions have since been complied with.
The application for security for costs is supported by an affidavit of Ms Lisa Andonis, a solicitor employed by the respondent's solicitors. In that affidavit, Ms Andonis says that the costs wasted by reason of the amendments to the grounds of appeal are estimated at $4,192.25. A draft bill of costs in that amount is attached to the affidavit. The costs relate, in substance, to consideration of the grounds of appeal, attending on the directions hearing on 15 October 2010, and getting up the appeal for hearing.
Ms Andonis says that the balance of $55,573.50 represents the respondent's estimate of its party and party costs otherwise of the interlocutory appeal, absent any special costs order. In fact, Ms Andonis estimates that the respondent will in fact incur costs in the sum of $80,000 and predicts that the respondent will be successful in obtaining special costs orders if the appeal fails.
The respondent seeks an order for either the payment into court of the total sum of $59,945.75 or delivery to the Court of Appeal Registrar of an unconditional bank guarantee in that amount.
I have set out the relevant principles in Attorney‑General of Botswana v Aussie Diamond Products Pty Ltd [2011] WASCA 81 and it is unnecessary to repeat what I said there.
The appellant takes issue with the amount claimed, contending that it is excessive. In relation to the costs associated with the amendments to the grounds of appeal, it also says there was no reason for the respondent's counsel to consider the original grounds of appeal when the respondent was on notice that the grounds of appeal were to be considered by the court and could not therefore be regarded as final.
I do not think there is any substance in the latter submission. As I said in my reasons in relation to the application for security for costs in the substantive appeal, in the circumstances the respondent's legal advisers could not be expected simply to down tools until it was certain whether the grounds of appeal would proceed in that form. However, while it is very difficult at this point to make an assessment of the extent (if any) that costs have been wasted, on what is before me I do not accept that the sum claimed is an appropriate amount. It seems to me to be manifestly excessive.
So too does the amount otherwise claimed in respect of the appeal. The appellant estimates the substantive appeal may take one and a half days and this appeal may take half a day. It is obvious that there will be a substantial overlap between them. Moreover, as appears from the grounds of appeal, and is reinforced by the schedule of relevant evidence, the appeal is relatively confined in its scope.
On the material before me, I consider that security should be provided in the total sum of $10,000 and the appeal should 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 form of the security, and the time within which it is to be provided, are matters which ought to be capable of resolution between the parties. 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.