Crestel Pty Ltd v The Australian National University

[1996] FCA 912

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY       )    No. VG 382 of 1993

)

GENERAL DIVISION                 )

BETWEEN:  CRESTEL PTY LIMITED

ACN 053 180 895

(First Applicant)

AND:     HAROLD SHELDON KANOST

(Second Applicant)

AND:     PLUMRIDGE PTY LIMITED

(Third Applicant)

AND:     FINE PAPERS PTY LIMITED

(Fourth Applicant)

AND:     THE AUSTRALIAN NATIONAL UNIVERSITY

(First Respondent)

AND:     ANUTECH PTY LIMITED

(Second Respondent)

AND:     SUSAN ELIZABETH KESSON and KRISTINA RINGWOOD (who are sued in their respective capacities as Executrices of the Will of ALFRED EDWARD RINGWOOD, deceased

(Third Respondent)

AND:     DEDDICK PTY LIMITED

ACN 008 546 683

(Fourth Respondent)

CORAM:    Ryan J

DATE:     11 October 1996

PLACE:    Melbourne

REASONS FOR JUDGMENT

RYAN J:   It is clear that the Court has a broad, unfettered discretion on an application for security for costs or for the provision of further security. There have been several changed circumstances since Neaves J ordered the provision of further security in the sum of $75,000.  That order was made by way of an addition to an order earlier made by Olney J for provision of security in the sum of $15,000 which, it was contemplated, would cover the incurring of costs by the respondents up to the completion of discovery.

At the time of Neaves J's order, it was envisaged that there would be a trial in Canberra on all issues of liability and damages, which trial would occupy a period of 10 days.  The matter has now been set down for a trial to commence in Melbourne on 11 November 1996 confined to the issue of liability.  Additional applicants have been joined and the trial will involve also the hearing and determination of cross-claims, although it has been suggested on behalf of the cross-claimants that the issues raised by the cross-claims will occupy relatively little time compared with that to be expended on the initial claim made by the applicants.

Evidence filed on behalf of the respondents suggests that their party and party costs of the trial over the four weeks to which I have referred will be significantly greater than the estimate of costs relied on before Neaves J when the order for the provision of security in the sum of $75,000 was made. Detailed criticisms of those new estimates have been made in affidavits filed on behalf of the applicants by their solicitor and a costs' consultant retained on their behalf.

In the circumstances, and exercising the discretion as best I can with the limited appreciation which I presently have of the issues in the matter, I consider it appropriate to accede to the submission made by Mr Sutherland, QC, on behalf of the applicants, that the question of provision of further security be examined at some appropriate time in the course of the trial, possibly at the end of the first week or at some time shortly after that.  That course will enable the parties' costs to date to be quantified with more precision in a way approximating more closely a bill in taxable form.  In addition, as Mr Sutherland submitted, determination of the application for further security, if one is to be made, can then be assessed by myself in the light of a much greater understanding than I presently have of the real issues in the matter, and the time likely to be involved in the resolution of the issues raised by the claim as against those raised by the cross-claims.

I have also had regard in coming to this conclusion to the fact that an application for security was foreshadowed something like six months ago, yet the application has only now been brought on after the matter has been set down for trial.  It is a not insignificant consideration that the Court has allocated four weeks of Judge time to this matter; three weeks commencing on 11 November 1996 then resuming again after an interval of two weeks on 16 December 1996.  From my knowledge of the Court's present listing practices and the demands for Judge time, if this matter were stayed pending the provision of security there would be no prospect of its being given time of a similar order before, at the earliest, the last three months of next year.  There is also, of course, the fact that difficulties may be encountered in the Court's usefully using otherwise the time which has been set aside if the proceedings were stayed pending the provision of further security and the applicants were unable to provide it by 11 November 1996.

Accordingly, in the circumstances, I propose today to refuse the motion for security without prejudice to the right of the respondents to renew that application in the course of the trial on such further material as they may be advised.  I shall also reserve the costs of all parties of today's motion.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of his Honour Justice Ryan.

Associate:

Date:

Counsel for the Applicants     :  Mr I. Sutherland, QC

Solicitors for the Applicants  :  Purves Clarke Richards

Counsel for the Respondents    :  -

Solicitors for the Respondents :  Mr N.J. Topfer

Mallesons Stephen Jaques

Date of Hearing               :  11 October 1996

Date of Judgment              :  11 October 1996