Llorente v Marshell Bodyguard and Security Pty Limited

[2017] NSWSC 1192

Supreme Court

New South Wales

Medium Neutral Citation:

Llorente v Marshell Bodyguard & Security Pty Limited [2017] NSWSC 1192

Hearing dates:

1 September 2017

Date of orders:

01 September 2017

Decision date:

01 September 2017

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

The application for security for costs is adjourned to be listed before the Registrar at 9 am on 8 September 2017 for reference to the Duty Judge if otherwise ready.

 I order the respondent to pay the costs thrown away by reason of this adjournment

Catchwords:

COSTS – Security for costs

  EVIDENCE – Affidavit evidence – Whether oath defective – Where solicitor administers oath via social media and deponent is overseas – Whether jurat defective – Affidavit held to be defective in both respects

Legislation Cited:

Compensation to Relatives Act 1897 (NSW)
Oaths Act 1900 (NSW)

Category:

Procedural and other rulings

Parties:

Raquel Llorente (Applicant)
Marshell Bodyguard & Security Pty Limited (Respondent)

Representation:

Counsel:

 

R Hanrahan (Applicant)
D R Hooke SC and D O’Dowd (Respondent)

Solicitors:

File Number(s):

2011/0380377

EX TEMPORE Judgment (REVISED)

1. This matter arises out of a claim under the Compensation to Relatives Act 1897 (NSW). The deceased died as a result of a beating given to him by bouncers at a place of resort. The case was one attended by some difficulties because the culprits' insurance did not extend to the circumstances in which the cause of action is said to have arisen; other people were identified and proceedings brought against them. Those proceedings were compromised, as commonly occurs, and settlement was approved by a judge of this Court.

2. The substantial present beneficiary of the proceeds of the settlement is the 6-year old son of the deceased. The cross-claimants are the parents of the deceased who are making claim for apportionment of the proceeds of the settlement. I gather that the amount involved is, in the scheme of things, relatively modest. The parents reside in the Republic of Columbia and the plaintiffs, who are the cross-defendants, have made an application for security for costs. My understanding is that that application was made after the settlement was approved in the case. The matter came before Walton J two weeks ago who ordered that it be listed today for hearing. There is some urgency because a hearing estimated to last for some days has been fixed to commence on 16 October 2017, and the matter of security should be dealt with well in advance of that date.

3. The difficulty before me today is that although the applicants are ready to proceed and the respondents thought they were ready to proceed, there is a real question about whether the affidavit upon which the respondents seek to rely has been executed in compliance with the Oaths Act 1900 (NSW). That arises out of two considerations. The first is that – perhaps ingeniously, perhaps not – the solicitor, who I will say administered the oath, did so while he was present in New South Wales and the deponent was in the Republic of Columbia. They were then communicating via some form of social media. Mr Hanrahan of Counsel, who appears for the respondents today, has referred to the relevant provisions of the Oaths Act but he was unable to put forward an argument with confidence that this apparently novel approach is in compliance with the law. I regard this as a matter of substance, given that the deponent is not available for cross-examination.

4. The second problem is that the jurat is defective: the deponent is a native Spanish-speaker. The affidavit is entirely in English and there is no evidence within it to indicate by whom it was interpreted, and that the person who did the interpreting himself or herself, took an appropriate oath. Again, these matters, to my mind, are not mere technicalities, but matters of substance. However, the effect of all that is that the application is likely to proceed without any evidence on behalf of the respondent which puts them at a considerable disadvantage, especially given the capacity of an order for security to stultify proceedings otherwise regularly brought.

5. Mr Hanrahan has applied for an adjournment in order to correct what may be defects in the execution of the affidavit. Mr Hooke of Senior Counsel, who appears with Mr O'Dowd for the applicant, opposes the adjournment application. He argues, with some force, that the matter was brought on quickly for good reason, and that the defects in the affidavit should have been obvious, but in any event had been pointed out before today.

6. Mr Hanrahan initially applied for a four-week adjournment, given that his client resides in an apparently remote part of Colombia. Given the expedition with which the matter has been brought on and the need to have an early determination of the security issue so that costs of the trial may not be wasted, I am not prepared to grant a four-week adjournment. I think, however, it would be unfair to permit the matter to proceed without the respondents having the opportunity of putting on regular evidence before a judge exercising the discretion whether to make an order for security or not.

7. In the circumstances I am prepared to grant an adjournment of one week. It is important I think that the matter be vetted by the Registrar before it is referred to the Duty Judge next week.

8. I propose to make an order that the application for security for costs is adjourned to be listed before the Registrar at 9 am on 8 September 2017 for reference to the Duty Judge if otherwise ready.

9. Mr Hooke applies for costs. He argues that the cross-claimants have been in default of timetables set on other occasions. I have not had the time to conduct a full enquiry into compliance with orders previously made but obviously in the circumstances the applicants should have their costs of today. Mr Hooke asks for an order that I assess lump sum costs and order them to be payable forthwith. He did not articulate it that way but I think that is the sense of what he had to say to me. I am not persuaded that that is appropriate. I am of the view, however, that the respondent should pay the costs thrown away by the adjournment on the usual basis in respect of costs in interlocutory applications.

10. I order the respondent to pay the costs thrown away by reason of this adjournment.

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Decision last updated: 06 September 2017