Mitchell v Transport for NSW

Case [2022] NSWCA 141

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Mitchell v Transport for NSW [2022] NSWCA 141
Hearing dates: 3 August 2022
Date of orders: 3 August 2022
Decision date: 10 August 2022
Before: Meagher JA; Mitchelmore JA
Decision:

Application for leave to appeal dismissed with costs.

Catchwords:

APPEALS – leave to appeal from order for security for costs – representative proceedings – where litigation funder agreed to indemnify plaintiffs against adverse costs order and to provide security for costs – where identity of funder not disclosed – where respondent unable to assess funder’s financial ability to meet indemnity – no reasonably arguable error or question of principle

COSTS – security for costs – sources of power to order security – UCPR r 42.21 – inherent power

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 67

Uniform Civil Procedure Rules 2005 (NSW), r 42.21

Cases Cited:

Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44

Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105

House v The King (1936) 55 CLR 499; [1936] HCA 40

Merribee Pastoral Industries Pty Ltd v Australia and New Zealand Banking Group Ltd (1998) 193 CLR 502; [1998] HCA 41

Mohareb v Harbour Radio Pty Ltd [2020] NSWCA 231

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Philips Electronics Australia Pty Ltd v Matthews (2002) 54 NSWLR 598; [2002] NSWCA 157

PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48

Rajski v Computer Manufacture & Design Pty Ltd [1982] 2 NSWLR 443

Rajski v Computer Manufacture & Design Pty Ltd [1983] 2 NSWLR 122

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26

Category:Principal judgment
Parties: Darren Mitchell (First Applicant)
Rosaline Mitchell (Second Applicant)
Transport for NSW (Respondent)
Representation:

Counsel:
T Hall (sol) (Applicants)
G Sirtes SC with L Johnston (Respondent)

Solicitors:
Crown Solicitor’s Office (Respondent)
File Number(s): 2022/143356
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Civil
Citation:

[2022] NSWSC 500

Date of Decision:
28 April 2022
Before:
Ball J
File Number(s):
2021/88654

Judgment

  1. THE COURT: The applicants are the plaintiffs in representative proceedings. On behalf of themselves and members of a class of persons they allege that their subterranean land was compulsorily acquired without consent or compensation by the respondent, Transport for NSW (TfNSW), in order to construct tunnels forming part of the WestConnex M4-M5 Link Project.

  2. By a summons filed on 18 May 2022 the applicants seek leave to appeal from orders for the provision of security for costs made by Ball J (the primary judge) on 28 April 2022 (Mitchell v Roads and Maritime Services (now known as Transport for NSW) [2022] NSWSC 500). Those orders included:

(1)   The plaintiffs give…

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AGLC
Mitchell v Transport for NSW [2022] NSWCA 141
Case
[2022] NSWCA 141
Decision Date

CaseChat Overview and Summary

The applicants, plaintiffs in representative proceedings, sought leave to appeal an order made by the primary judge requiring them to provide security for costs. The respondent, Transport for NSW, had sought this security on the basis that the identity of the litigation funder, who had agreed to indemnify the plaintiffs against adverse costs orders and provide the security, was not disclosed. The applicants argued that the primary judge erred in ordering security for costs, particularly given the existence of the funding agreement.

The central legal issue before the Court of Appeal was whether the primary judge had erred in exercising their discretion to order security for costs, notwithstanding the existence of a litigation funding agreement where the funder's identity remained undisclosed. This involved considering the scope of the court's power to order security for costs, including under rule 42.21 of the Uniform Civil Procedure Rules 1999 (NSW) and its inherent jurisdiction, and how that power should be exercised when a litigation funder is involved but their financial capacity to meet the indemnity cannot be assessed by the opposing party.

Meagher and Mitchelmore JJA found no reasonably arguable error or question of principle in the primary judge's decision. Their Honours reasoned that while a litigation funding agreement can be a relevant factor in the exercise of discretion regarding security for costs, it does not automatically preclude an order for security, especially where the respondent is unable to assess the funder's financial capacity to meet its indemnity obligations. The court emphasised that the purpose of security for costs is to ensure that a defendant, if successful, can recover their costs, and this purpose is undermined if the source of those costs cannot be adequately identified or assessed.

The application for leave to appeal was dismissed, and the applicants were ordered to pay the costs of the application.

Orders

Orders of the court

Application for leave to appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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