Martin St James SRC Centres Australia Pty Ltd v Plum Crazy Pty Ltd

[1991] FCA 471

4 f

XIDSPAENT No. v.! / ........ -.

SUITABLE eQB GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REG ISTRY ) NG 342 of 1990

1

GENERAL DIVISION )

BETWEEN:  MARTIN ST JAMES SRC CENTRES AUSTRALIA
PTY LIMITED

Applicant

AND :  PLUM CRAZY PTY LIMITED and ANOR

Respondents

C O W : Burchett J.
PLACE: Sydney

DATE : 24 July 1991

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J.:

The respondents in this matter move for security for costs. The matter was commenced by an application filed on 19 June 1990, and the defence of the first and second respondents was filed on 8 August 1990. I have been informed by counsel for the respondents that the applicants have filed some seven affidavits, and that the matter has assumed proportions of some significance.

The applicant's solicitor has recently given notice that he no longer acts for the applicant, and there has been some correspondence with a solicitor, apparently acting for the	of change of solicitor. Although that solicitor was notified,	applicant, who is in Melbourne, but he has not filed a notice
and although the former solicitor was represented when the motion was fixed for hearing today, there has been no appearance before me on behalf of the applicant today. Although there is no appearance for the applicant, of course, an order for security for costs is not made, automatically, simply because someone does not appear.
What concerns me is that the matter is more than a year old. A very considerable amount of costs must have been expended on behalf of the applicant during that time, and the first request for the provision of security was not made until May of this year, that is to say, when almost a year had expired. I am told that the request was not made until after attempts at mediation had failed, but I do not regard that as a factor which negates the well known principle that an application for security for costs must be made promptly.
It seems to me this is a simple matter of fairness, because an application for security for costs may well result
security is required, which is to say if indeed the applicant in an action being stultified altogether, if indeed the
is without appropriate means to wage the litigation. And he should not be put in the position where he expends his slender resources on the faith that the action will go ahead, and only after he has done so, is met by a requirement of security for costs which results in what he has expended being wasted. That consideration is, of course, more important where, in fact, it is apparent that a substantial sum has been expended,
and this case is in that position.
It is sufficient to refer, by way of authority, to the decision of Chief Justice Mason in Devenish v. Jewel Foocl Stores Ptv Ltd (1990) 94 ALR 664 but, as I have said, there is a long line of cases which establishes that such an application must be made promptly. There is also, in the present case, a cross claim, but that is not a matter of great significance, since the amount of the cross claim does not appear to be large.
For these reasons, I dismiss the application for security. I have, however, given directions in respect of the further conduct of the matter, and have made it clear that if, in fact, there is a neglect of compliance with directions, it will be open to the respondents to press for the dismissal of the matter under the rules made in that behalf, on the ground of non-compliance with directions.

are a true copy of the Reasons for Judgment herein	I certify that this and the preceding two (2) pages
of his Honour Mr Justice Burchett.
Associate: /W-&--.
Date: 24 July 1991