Baronglow Pty Ltd v Willing - [2007] SASC 299

Supreme Court of South Australia
(Civil: Application)
BARONGLOW PTY LTD v WILLING & ANOR
[2007] SASC 299
Judgment of The Honourable Justice Debelle (ex tempore)
9 August 2007
PROCEDURE - COSTS - SECURITY FOR COSTS
Applicant ordered to pay costs and allocaturs issued – applicant seeks to review allocaturs and have issue referred to Full Court for hearing and determination – respondent seeks security for costs so far ordered and for costs of appeal to Full Court – issues referred to Full Court subject to costs of disputed allocaturs and security for costs being paid into court.
Supreme Court Act 1935 s 49, referred to.
Dalgety Australia Operations Ltd v F F Seeley Nominees Pty Ltd (No. 2) (1988) 49 SASR 75, considered.

BARONGLOW PTY LTD v WILLING & ANOR
[2007] SASC 299
Civil

DEBELLE J. The applicant, Baronglow Pty Ltd (“Baronglow”) has been ordered to pay costs of unsuccessful applications in these proceedings. The costs have been taxed and three allocaturs were issued on 1 June 2007. Baronglow seeks to review all three allocaturs. The usual practice is that the review should be heard, if at all possible, by the judge who conducted the trial: Dalgety Australia Operations Ltd v F F Seeley Nominees Pty Ltd (No.2) (1988) 49 SASR 75.
The second respondent is a legal practitioner. He has represented himself in these proceedings. The order as to costs is in his favour. The taxing master allowed him to recover profit costs. Three of the grounds on which the review is sought concern the question whether a legal practitioner who is a party to proceedings and who appears for himself is entitled to recover profit costs.
The applicant seeks to have that issue referred to the Full Court for hearing and determination. As the reasons of the Master show, there is a division of judicial opinion on the question whether a legal practitioner who is party to proceedings and who appears for himself is entitled to recover profit costs. This is an important question and, given the division of judicial opinion, it is appropriate that that issue be referred to the Full Court pursuant to s 49 of the Supreme Court Act 1935. I will in a moment order that grounds 1 to 3 be referred to the Full Court for hearing and determination. However, for the reasons which follow, that order will be subject to certain conditions.
The other grounds of review in the applicant’s grounds for review filed on 10 July 2007 concern either factual issues or issues of detail concerning the bills of costs. It is not appropriate that issues of that kind be referred to the Full Court. To the extent that some of those issues might reflect issues of principle in grounds 1 to 3, they are matters which can be addressed on the review after the Full Court has delivered its decision.
The second respondent has applied for security for costs in respect of the orders for costs so far made and for the costs of and incidental to the review and any reference to the Full Court. The second respondent also applies for an order that the review and the reference to the Full Court be stayed pending the provision of that security.
These proceedings began with an application for leave to appeal from a decision of a judge of the District Court. Leave was refused by Vanstone J on 13 April 2004. The applicant appealed to the Full Court which on 19 August 2004 dismissed the appeal. Since then there have been numerous applications relating to the costs of the failed applications for leave to appeal. The issues as to costs have assumed a life of their own subsuming the initial question which caused these proceedings to be instituted. Those proceedings have been marked by the fact that the applicant has brought five interlocutory applications or appeals and has lost all of them and has been ordered to pay the costs of all of them to the second respondent.
It is to be noted also that at an earlier stage in these proceedings a default allocatur was issued. On 15 May 2006, Judge Lunn made an order that Baronglow pay into court the costs the subject of that allocatur as a condition of setting aside the allocatur. The applicant failed to pay any sum into court. On 21 September 2006 Perry J extended the time within which the monies might be paid into court by Baronglow pursuant to the order of Judge Lunn. No sum was paid into court.
I find on the evidence before me that Baronglow has no financial assets. More significantly, Baronglow has insufficient assets to pay the costs the subject of the allocaturs. I refer to the reasons for judgment published by Judge Lunn in these proceedings on 1 November 2006. It is quite apparent from those reasons, and indeed from a general review of the papers, that Baronglow is a nominal plaintiff. The real plaintiff is Mr Neville Jordan. Any financial benefit from the proceedings will be for the financial benefit of Mr Jordan, who was a legal practitioner and who was at an earlier time bankrupt.
The history of this action amply demonstrates that there are sound reasons why it should be a condition of any review of any allocatur in this action that the costs the subject of that allocatur should first be paid into court.
Furthermore, as Baronglow has no assets, Baronglow should also be required to pay into court an amount by way of security for costs. The security should be an amount approximating the costs of and incidental to the prosecution of the review. In my view, a reasonable sum to allow for such costs is the sum of $4,000.
For these reasons, I will in a moment make orders referring the issues in paragraphs 1 to 3 of the grounds for review filed on 10 July 2007 to the Full Court for hearing and determination. However, that reference will be subject to two conditions. The first will be that the costs the subject of the disputed allocaturs be paid into court. The second is that the sum of $4,000 be paid into court as security for costs.
There is a final application by the second respondent. It is that the applicant and Mr Neville Jordan be jointly and severally liable for the costs of and incidental to this application. In his reasons published on 1 November 2006 Judge Lunn made such an order. For the reasons Judge Lunn expressed, I believe such an order is appropriate in this application. As I have said, these proceedings are ultimately for the benefit of Mr Neville Jordan and Baronglow is to all intents and purposes a nominal plaintiff.
The orders of the court will therefore be:
1That subject to paragraph 3 of this order the questions in paragraph 1 to 3 of the applicant’s notice of a review filed on 10 July 2007 be referred to the Full Court for hearing and determination.
2That the remaining questions in the said notice of review be considered and determined after the Full Court has decided the questions in paragraphs 1 to 3 thereof.
3That the applicant shall not be permitted to prosecute its review until it has first paid into court:
(i) the sum of $11,429.70 the subject of the disputed allocaturs; and
(ii) the sum of $4,000 by way of security for costs.
4That the applicant and Neville Jordan pay the costs of and incidental to this application.
5Liberty to apply.