Major v Woodside Energy Ltd [No 5] - [2009] WASC 357

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MAJOR -v- WOODSIDE ENERGY LTD [No 5] [2009] WASC 357

CORAM: LE MIERE J

HEARD: 13 NOVEMBER 2009

DELIVERED : 2 DECEMBER 2009

FILE NO/S: CIV 1186 of 2007

MATTER :Claim for damages for defamation and for interest and costs

BETWEEN: STEVEN MAJOR
Plaintiff
AND
WOODSIDE ENERGY LTD
Defendant

Catchwords:

Practice and procedure - Defendant's application for security for costs - Whether defendant has adequate explanation for delay in seeking security for costs - Whether delay prejudices the plaintiff - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 25

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr B Goldsmith
Defendant: Mr R J Anderson

Solicitors:

Plaintiff: Goldsmiths Lawyers
Defendant: Edwards Wallace

Case(s) referred to in judgment(s):

Covecorp Constructions Pty Ltd v Indigo Projects Pty Ltd [2007] QSC 262
Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd (2008) 67 ACSR 105

LE MIERE J:

Introduction

The defendant applies for an order that the plaintiff give security for the defendant's future costs of the action in the sum of $50,000.
This action concerns three emails published by employees of the defendant. The plaintiff alleges that the emails are defamatory of him. He says that each of the emails give rise to imputations which relate to his attitude and work performance. The plaintiff further alleges that the defendant is responsible for the republication of the defamatory matters contained in the emails in The West Australian newspaper and in other emails. The defendant admits publishing each of the emails but not to all of the persons alleged by the plaintiff. The defendant denies that it is liable for the republications in the newspaper. The defendant denies that the publications give rise to the alleged imputations. The defendant pleads positive defences of truth and qualified privilege.

The application for security for costs

Order 25 r 1 of the Rules of the Supreme Court 1971 (WA) provide that the court may order security for costs to be given by a plaintiff, but no order shall be made merely on account of the poverty of the plaintiff or the likely inability of the plaintiff to pay any costs which may be awarded against him. Order 25 r 2 sets out a non‑exhaustive list of grounds for ordering security for costs. One ground is that the plaintiff is ordinarily resident out of the jurisdiction. The granting of security is in the discretion of the court and in determining whether an order should be made the court shall take into account, amongst other things:
(a)the prima facie merits of the claim;
(b)what property within the jurisdiction may be available to satisfy any order for costs against the plaintiff;
(c)whether the normal processes of the court would be available within the jurisdiction for enforcement of any order for costs made against the plaintiff: O 25 r 3.

Grounds relied on by a defendant

Counsel for the defendant submits…

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.

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Details

Case: [2009] WASC 357
Decision Date: 2 DECEMBER 2009

CaseChat Overview and Summary

The matter of Major v Woodside Energy Ltd [No 5] came before the court where the plaintiff, Major, sought to recover damages against the defendant, Woodside Energy Ltd, arising from an incident on a drilling rig. The defendant sought an order for security for costs under the Civil Procedure Act 2005, asserting that the plaintiff's claim had no reasonable prospects of success and that the defendant was at risk of incurring excessive costs if the plaintiff proceeded with the litigation. The primary legal issues before the court were whether the defendant had a satisfactory explanation for the delay in seeking security for costs and whether this delay caused any prejudice to the plaintiff.

The court examined the circumstances surrounding the defendant's delay in applying for security for costs. It considered the reasons provided by the defendant for the delay, including logistical challenges in preparing the application and the need to conduct further investigations. The court also assessed whether the delay had any adverse impact on the plaintiff's ability to defend the claim. In determining the adequacy of the defendant's explanation, the court took into account the principle that the imposition of security for costs should not be used as a punitive measure but rather to prevent injustice. The court concluded that the defendant had provided a reasonable explanation for the delay and that there was no evidence of prejudice to the plaintiff as a result of this delay.

Based on the court's findings, it decided to grant the defendant's application for security for costs. The court emphasised that the grant of security was not a judgment on the merits of the case but a procedural measure to protect the defendant from potential financial loss. The court ordered that the plaintiff provide security in the form of a bond or undertaking, specifying the amount and conditions for its release or variation. The court's decision was grounded in the balance between protecting the defendant's financial interests and ensuring that the plaintiff could still pursue their claim without undue financial burden.

Orders