Brennan v Rijicach Pty Ltd

[2011] SASC 49

Supreme Court of South Australia

(Magistrates Appeals: Civil)

BRENNAN v RIJICACH PTY LTD

[2011] SASC 49

Judgment of The Honourable Chief Justice Doyle (ex tempore)

6 April 2011

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL

The appellant brought proceedings against the defendant company in the civil jurisdiction of the Magistrates Court - the respondent applied for, and was granted, an order that the appellant provide security for costs in relation to those proceedings under r 81 of the Magistrates Court (Civil) Rules 1992 (SA) - appellant failed to pay security by the deadline - the Magistrate struck out the action for non-compliance with the order - appellant appealed against that order and applied for an order extending the time within which to appeal against the order for security for costs - whether the Magistrate erred in striking out the action.

Held: appeal against the Magistrate's decision to strike out the appellant's action allowed - the appellant's application for an order extending time within which to appeal against the order for security for costs refused - the appellant to receive from the respondent 40 per cent of the costs of the appeal.

Magistrates Court (Civil) Rules 1992 (SA) r 81, referred to.

BRENNAN v RIJICACH PTY LTD
[2011] SASC 49

Magistrates Appeal:  Civil

1. DOYLE CJ (ex tempore):I have had the opportunity before hearing submissions today to consider the reasons of the Magistrate, the outlines filed on each side and also the affidavits filed by the solicitors for Ms Brennan.

2. Ms Brennan brought proceedings against the defendant company in the civil jurisdiction of the Magistrates Court. Although the proceedings were filed on 30 April 2009, they have not yet come to trial. I do not know the reason for that but it is an unfortunate fact.

3. The defendant filed a defence and counterclaim but subsequently the counterclaim was withdrawn. A number of interlocutory hearings have taken place.

4. In September 2010, the defendant applied for an order that Ms Brennan provide security for costs. Ms Brennan opposed the application.

5. The application was made under r 81 of the Magistrates Court Civil Rules 1992. This rule has been interpreted as authorising an order for security for costs against an individual person. It gives the court a broad discretion.

6. The application was heard by a Magistrate on 26 November 2010. The Magistrate ordered that the plaintiff provide security for the defendant’s costs in the sum of $6225, the security to be provided within 21 days.  The costs represented the Magistrate’s estimate of future costs.

7. Subsequently, by agreement between the solicitors for the parties, the time for complying with the order was extended to 11 February 2011.  Ms Brennan did not provide the security by then. On that day, a Magistrate struck-out the action for non-compliance with the order.

8. On 8 March 2011, Ms Brennan appealed against the order. She also applied for an order extending the time within which to appeal against the order that she provide security for costs.

9. Ms Brennan has filed an affidavit in support of the appeal. There is no objection to me admitting it on appeal. She states that she applied for a bank loan in September 2010. For various reasons, which appear to be plausible, the bank was slow in dealing with the application.  She refers to the extension of time for complying with the order and then to further delays on the part of the bank.

10. While, as I have said the explanations for the delay are plausible, it is also fair to say that Ms Brennan’s approach to the matter has been too casual. Her affidavit does not indicate that she treated the deadline for complying with the order with the seriousness with which it needed to be treated.

11. As the deadline was approaching she contacted the Magistrates Court Call Centre and says that she was told that she could make the payment by credit card. She made arrangements to do this.  This was in early February 2011.  I accept that there was a misunderstanding as to the nature of the payment and that led to incorrect advice being given.

12. On 10 February 2011, a day before the deadline, she made arrangements with her parents so that she could pay the security by credit card.

13. On 10 February 2011, she contacted the Magistrates Court Call Centre to make the payment and was told that a payment of security for costs could not be made in that manner.

14. She was then unable to get to the court office in time with cash or with a bank cheque.

15. It appears that most of this material was not put before the Magistrate who struck-out the action.  The solicitor who attended at the directions hearing at which the application for a strike-out order was made did not realise that an application was going to be made that day to strike-out the action.

16. The argument before the Magistrate appears to have been based mainly on the information given by the Call Centre.

17. As to the application for an extension of time within which to appeal against the order for security for costs, I decline to grant that extension.  It is clear from Ms Brennan’s own affidavit that she chose not to appeal against the order but to endeavour to raise finance. There is no good reason for allowing her now to pursue a different course of action. Moreover, the Magistrate’s reasons for making the order for security for costs are persuasive on their face.

18. On those grounds, I refuse an extension of time within which to appeal against the order for the provision of security.

19. As to the order striking out the action, I make the following points.  First, as already noted, Ms Brennan’s approach to compliance with the order for security has been somewhat casual but not completely unreasonable.

20. For reasons I have touched on, the solicitor did not put the full story before the Magistrate. If he had done so, bearing in mind in particular the solicitors had received or perhaps were about to receive an amount sufficient to cover the order for security, I anticipate that the Magistrate would not have struck-out the action, at least at that very moment.

21. In all of the circumstances, in the interests of justice, I am prepared to allow the appeal.  In the light of the further evidence, which I am prepared to receive, the Magistrate should not have struck-out the action.

22. I make the following orders:

    1That the application for an order extending time within which to appeal against the order for security for costs be refused.

    2That subject to Ms Brennan making payment to the Magistrates Court to the credit of the action of the sum of $6225 by way of security for costs in the Magistrates Court action within seven days of today’s date, the appeal against the order striking out the action be allowed and that the order striking out the action be set aside.

23. On the question of costs, I consider that the appellant is entitled to an order for costs.  However, that order should reflect the circumstance that the outcome of the appeal has been significantly influenced by an affidavit filed only about 10 days ago and to a lesser extent, by the circumstance that in the end, the appellant did pursue a ground that failed.  So the third order I make is:

    3That the appellant recover from the respondent 40 per cent of her costs of the appeal.