Ian Robert Turner & Lynn Turner v Leda Commercial Properties Pty Limited

[2002] ACTSC 5

Ian Robert Turner & Lynn Turner v Leda Commercial Properties Pty Limited [2002] ACTSC 5 (18 February 2002)

CATCHWORDS

SECURITY FOR COSTS – appeal from magistrate – whether special circumstances made out for security for costs order – pro bono legal representation

Supreme Court Rules, O 81 r 11

Knight v Ponsonby [1925] 1 KB 545 at 552
Lucas v Yorke (1983) 50 ALR 228
Schokker v Commissioner for Taxation [2000] FCA 1734; (2000) 106 FCR 134

No. SCA 54 of 2001

Coram:  Master T Connolly
Supreme Court of the ACT
Date:  18 February 2002

IN THE SUPREME COURT OF THE     )
  )          No. SCA 54 of 2001
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:IAN ROBER TURNER & LYNN TURNER

Plaintiff

AND:LEDA COMMERCIAL PROPERTIES PTY LIMITED ACN 008 613 447

Defendant

ORDER

Judge Making Order:  Master T Connolly
Where Made:  Canberra
Date of Order:  18 February 2002

THE COURT ORDERS THAT:

1. Notice of motion seeking an order for security for costs is dismissed

1. Respondent applicant to pay plaintiffs costs

1. This is an application by the respondent to an application for leave to appeal from a decision of the Magistrates Court seeking that the applicant provide security for costs.  Security for costs may be ordered in an appeal pursuant to Order 81 rule 11 which provides:

(1)   No security for the costs of an appeal is required, except where subrule (2) applies.

(2)   In special circumstances, the court may order that security for the costs of an appeal be given as it thinks fit.

This is a rule which may be exercised by the Master, so the matter is properly before me.

1. The application is made on several grounds.  The first relates to the alleged failure by the appellants to provide a residential address.  It is clearly the law that security for costs may be ordered where there is a misstatement of non-statement of address, as a litigant who conceals their address may be “avoiding obligations that could arise from the proceedings.”(Knight v Ponsonby [1925] 1 KB 545 at 552). An affidavit of Mr Brennan, solicitor for the respondent, states that a review of a number of documents filed by the applicants in this and related proceedings showed that there had never been a residential address revealed by the applicants, and that all court documents had shown only a solicitors address for service.

1. The Rules of course do not require a residential address, and the appellants have been acting within their rights in filing documentation with their solicitor’s address as the appropriate address for service.  At the hearing of this matter Mr Turner acknowledged in open court his present residential address, and this was not questioned.  Had their been a refusal to state an address in court, or evidence to suggest that the address stated was not truthful, I may have been minded to exercise the discretion, but the appellant has complied with the Rules until this application, and been forthcoming in stating his address before me.  I am not satisfied that the appellants have been wilfully misstating their address for the purposes of this rule, and that they have been acting quite appropriately in filing documents with their solicitors address as the appropriate service address.  I am not satisfied that I should grant the relief sought on this ground.

1. The respondent further argues that security for costs should be ordered in the general discretion of the court. Mr Brennan referred in his affidavit to the complex history of proceedings between the company formerly controlled by the present appellants and the respondents, and attached a chart which graphically illustrated the complexity of the litigation.

1. The present proceedings, however, are brought by the appellants in their personal capacity.  They have not previously been the litigants, although they were directors of the company involved in the litigation.  Where the course of litigation between parties has been protracted and largely unsuccessful from the persistent litigants point of view this may be a factor that warrants the exercise of the discretion to order security for costs (Lucas v Yorke (1983) 50 ALR 228 at 229). The point that they seek to litigate in this appeal does not, it seems to me, amount to a further attempt to agitate a point that had been lost on a previous appeal, a form of proceeding described by Brennan J in Lucas v Yorke as a “luxury”.

1. It is argued that the appellants would be unable to meet any adverse costs order.  It was not submitted, however, that there had been any breach of or failure to comply with any order against them to date in the course of the litigation.  Mere impecuniosity has never been a ground for ordering security for costs, and Brennan J noted in Lucas v Yorke at 230 that

“it is an important consideration that the making of an order for security for costs will effectively shut out an appeal designed to recover losses which have caused the appellant’s impecuniosity”. 

1. That statement well describes the present situation, and it seems to me that the interests of justice would not be served by denying the appellants the opportunity to resolve what they say is an important point, which has been properly set out in an application for leave to appeal and an amended notice of appeal.

1. It was common ground that the appellants have the benefit of some form of pro bono legal representation for the purposes of the appeal.  I do not consider that this fact supports the exercise of the discretion to order security for costs.  Australian courts and executive governments have both supported moves within the legal profession to develop schemes to provide pro bono representation before the courts.  The development of such schemes was referred to with approval by French J in Schokker v Commissioner for Taxation [2000] FCA 1734. It seems to me that it would stifle the development of such schemes, and be contrary to public policy, if the fact that such representation was made available to an impecunious litigant was taken to indicate that security for costs should follow.

1. For all of the foregoing reasons I am not satisfied that the respondent has satisfied me of the existence of the special circumstances required by O 81 r 11(2), and accordingly I dismiss the notice of motion seeking an order for security for costs. Costs should follow the event.

   I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

   Associate:

   Date:    18 February 2002

Counsel for the Appellants:  Mr C Whitelaw          
Instructing Solicitors:  Darryl Perkins Solicitors

Counsel for the Respondent:  Mr R Killalea
Instructing Solicitors:  Mallesons, Stephens and Jacques

Dates of hearing:  7 December 2001

Date of judgment:  18 February 2002