Kurray v Brinkworth - [2023] SASC 16

Supreme Court of South Australia
(Civil: Application)
KURRAY v BRINKWORTH & ORS
[2023] SASC 16
Judgment of the Honourable Chief Justice Kourakis
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SECURITY FOR COSTS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SECURITY FOR COSTS - POWER TO ORDER
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SECURITY FOR COSTS - PLAINTIFF OR APPLICANT - NOMINAL OR REPRESENTATIVE PLAINTIFF OR APPLICANT
This is an application for security for costs brought by the respondents in a representative proceeding in which damages are claimed for losses suffered as a result of a bushfire allegedly ignited by burning activity on the respondents’ farm.
The applicant brings this proceeding by way of an opt out representative proceeding pursuant to r 24.4 of the Uniform Civil Rules 2020 (SA) (the UCR) on behalf of persons who have suffered personal injury, property damage or loss, or economic loss as a result of the fire.
The solicitor for the applicant has deposed that the applicant would be unable to meet any order for security for costs and that, should such an order be made, his application would be stultified. Likewise, the solicitor for the applicant has deposed that the other group members are unable to fund legal costs, including an order for security for costs.
Held:
1. The respondent's application for security for costs is dismissed.
2.The power of the Court to award costs is not limited by r 24.10 of the UCR to exempting the representative party from the liability to pay costs; it extends to ordering that a represented party bear all or part of those costs.
3.Rule 115.1(a) of the UCR extends to a representative proceeding brought under Part 4 of Chapter 3 of the UCR.

Federal Court Act 1976 (Cth) s 43; Supreme Court Civil Rules 2006 (SA) rr 194, 194(1)(a); Uniform Civil Rules 2020 (SA) rr 24, 24.1, 24.2, 24.4, 24.5, 24.7, 24.8, 24.9, 24.10, 115.1, 115.1(1)(a), referred to.
Indoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744; Reschke v Trevor Reschke Nominees Pty Ltd [2020] SASC 60, considered.

KURRAY v BRINKWORTH & ORS
[2023] SASC 16
Civil

KOURAKIS CJ: This is an application for security for costs brought by the fourth respondent, Patricia Ann Brinkworth, and the executors of the estate of Thomas Kenneth Brinkworth (the Brinkworth parties) in an action in which Peter Roderick Kurray claims damages for personal injury and losses suffered as a result of a bushfire (the Lucindale fire) allegedly ignited by burning operations on the farm of Ms Brinkworth and her husband, the deceased.
Mr Kurray alleges that the Lucindale fire originated in piles of vegetation on the Brinkworths’ property which had been set alight as part of a burning off operation. Mr Kurray alleges that the fires were not properly extinguished, and that they subsequently reignited on 11 January 2021 in adverse weather conditions. On the applicant’s case the Lucindale fire burnt over an area of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kurray v Brinkworth

Details

AGLC: Kurray v Brinkworth [2023] SASC 16
Case: [2023] SASC 16
Decision Date: 3 February 2023

CaseChat Overview and Summary

Kurray v Brinkworth is a case involving a dispute over a claim for security for costs. The plaintiff, Mr Kurray, sought damages for losses arising from a fire, and the defendants, the Brinkworth parties, applied for an order that Mr Kurray provide security for the costs of the proceedings. The case was heard in a state court, where the plaintiff argued against the defendants' application for security for costs. The central legal issue was whether the court had the jurisdiction to order the plaintiff to provide security for costs and, if so, whether it was appropriate to do so in the circumstances of this case.

The court considered whether the plaintiff was a nominal or representative party and whether the application was brought within a reasonable time. The court acknowledged that the application was late but noted that recent expert reports cast doubt on the plaintiff's case, increasing the risk of an unsatisfied adverse costs order. The court also considered that the group members who did not opt out of the proceeding were not substantially prejudiced, as they were always vulnerable to an adverse costs order. The court concluded that the lateness of the application alone would not have been sufficient reason to decline to make the order.

In dismissing the application for security for costs, the court found that the plaintiff's case was dubious due to recent expert reports, and the defendants were not substantially prejudiced by the late application. The court exercised its discretion to dismiss the application, taking into account the circumstances and the vulnerability of the group members to an adverse costs order. The court's decision was based on the balance of convenience and the risk of an unsatisfied adverse costs order. The final order was that the application for security for costs was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I acknowledge that the application is brought late but that is only because recent expert reports cast much doubt on Mr Kurray’s case as to the source of the Lucindale fire which in itself heightens the risk of an unsatisfied adverse costs order. Those group members who do not opt out are not substantially prejudiced because they were always vulnerable to an adverse costs order. The lateness of the application would not have been reason enough in itself to decline to make the order.Conclusion I dismiss the Brinkworth parties’ application for security for costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.