Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd

[2019] SASC 124

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

NANOSECOND CORPORATION PTY LTD & ANOR v GLEN CARRON PTY LTD & ANOR

[2019] SASC 124

Judgment of The Honourable Justice Peek

19 July 2019

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS

PROCEDURE - COSTS - SECURITY FOR COSTS - POVERTY - LACK OF MEANS

PROCEDURE - COSTS - SECURITY FOR COSTS - OTHER MATTERS

Applications for security for costs.

The defendants used the plaintiffs’ services to provide haulage services to their customers. That arrangement ceased after various allegations were made by various of the defendants’ customers against Mr Wentworth.

The plaintiffs commenced proceedings against the defendants on 14 August 2017 alleging breach of contract, injurious falsehood, defamation, conspiracy by unlawful means and misleading and deceptive conduct. On 14 December 2018, following a voir dire and 11 day trial, Doyle J dismissed the plaintiffs’ claims and awarded costs to the defendants. On 17 April 2019, Doyle J made lump sum costs orders against the plaintiffs in the total amount of $289,000.

On 29 January 2019 and again on 21 February 2019, the plaintiffs attempted to file a purported Notice of Appeal. The Notice of Appeal was rejected each time on the basis that it constituted an abuse of process. On the third attempt, the plaintiffs’ Notice of Appeal was accepted for filing on 20 March 2019, 65 days out of time.

On 20 June 2019, the first defendant filed an interlocutory application seeking, inter alia, that the appellate proceeding be dismissed for want of prosecution. On 27 June 2019, Mr Wentworth delivered to the Registry three copies of a purported case book. The purported case book showed almost total non-compliance with rule 239 of the Supreme Court Civil Supplementary Rules 2014 (SCCSR). No copy was served on the defendants until immediately prior to the hearing before this Court on 28 June 2019.

On 28 June 2019, the first defendant’s interlocutory application was called on. The defendants foreshadowed that they would apply for security for costs. Mr Wentworth made numerous factual assertions from the Bar table. Orders were made permitting the plaintiffs to file further affidavit material and permitting the defendants to file and serve further applications they wished to make.

On 8 July 2019, the defendants filed their respective applications for security for costs. The first defendant sought security for costs in the amount of $35,000 and the second defendant sought security for costs in the amount of $17,400. The plaintiffs filed two further affidavits on 9 July 2019.

On 12 July 2019, submissions were heard on the defendants’ security for costs applications and Judgment was reserved.

Held, allowing the first and second defendants’ applications for security for costs:

1. The plaintiffs have very substantial debts and are impecunious. The plaintiffs cannot meet the outstanding costs orders and could not meet any costs order(s) made against them by the Full Court should their appeal be unsuccessful.

2. The prospects of success of the appeal are extremely low. First, Mr Wentworth has conducted the proceedings to date with rank incompetence or studied defiance of the SCR. Secondly, the grounds of appeal are grossly defective. Thirdly, the case books do not comply with rule 239 of the SCCSR.

3. At trial, Doyle J comprehensively considered the plaintiffs’ factual case and rejected it, largely on credit grounds. The prospects of demonstrating error in Doyle J’s judgment are extremely low. The present proceeding does not raise issues of public or legal importance. The demonstrated risk of impecuniosity and the extremely low prospects of success outweigh the prejudice to the plaintiffs of their appeal being stultified. Unified Pty Ltd v Cancer Council Western Australia Inc (No 3) [2011] WASC 161; Thompson v Robinson [2005] QCA 253; Sands v State of South Australia [2013] SASC 105; Lesses v Maras [2016] SASC 117; Diakos v Mason [2010] SASC 108; Luadaka v Dooley [2003] QCA 51; Melunu Pty Ltd v Claron Constructions Pty Ltd [2004] NSWSC 1064 considered.

4. The proceedings are stayed until the plaintiffs pay into Court the amount of $25,000 for security for costs of the first defendant and the amount of $17,400 for security for costs of the second defendant.

Supreme Court Civil Rules 2006 r 5(4), r 53, r 282(2)(f), r 295(1)(g); Supreme Court Civil Supplementary Rules 2014 r 55(1), r 239, r 240, referred to.
Diakos v Mason [2010] SASC 108; Lesses v Maras [2016] SASC 117; Luadaka v Dooley [2003] QCA 51; Melunu Pty Ltd v Claron Constructions Pty Ltd [2004] NSWSC 1064; Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor [2018] SASC 116; Sands v State of South Australia [2013] SASC 105; Thompson v Robinson [2005] QCA 253; Unified Pty Ltd v Cancer Council Western Australia Inc (No 3) [2011] WASC 161, discussed.
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744; Viscariello v Livesey & Anor [2014] SASCFC 40; Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57, considered.

NANOSECOND CORPORATION PTY LTD & ANOR v GLEN CARRON PTY LTD & ANOR
[2019] SASC 124

Civil: Application

PEEK J.

1. Applications for security for costs.

   Introduction

2. Nanosecond Corporation Pty Ltd (Nanosecond) and Mr Wentworth (the first and second plaintiffs) seek to appeal against a judgment delivered by Doyle J on 14 December 2018 dismissing their claims against Glen Carron Pty Ltd and Garden Grove Haulage Pty Ltd (the first and second defendants). The defendants, by interlocutory applications filed on 8 July 2019 respectively apply for orders that the plaintiffs be required to provide security for costs of the proposed appeal.

   Chronology of presently relevant events and litigation

3. A chronology of presently relevant events is as follows.

4. Mr Wentworth was, at date of the delivery of judgment by the Judge on 14 December 2018, 69 years of age. He has spent a number of years as a professional driver of heavy combination vehicles. At the time of the relevant events he was providing haulage services through the first plaintiff, Nanosecond, a company of which he is the sole director and shareholder.

5. The first defendant and second defendants are both providers of bulk transport and haulage services in the South Australian grain market. During the period from February 2015 to April 2017, the defendants used the plaintiffs’ services to provide haulage services to their customers. The arrangement between the plaintiffs and the defendants ceased in late April 2017 after various allegations were made by various of the defendants’ customers that reflected poorly upon Mr Wentworth’s competence as a professional driver.

6. On 14 August 2017 the plaintiffs commenced proceedings by Summons and a Statement of Claim which was extensively amended on 6 November 2017 and again on 23 April 2018. In essence, the plaintiffs claimed that they had a contract with the defendants who were thereby required to provide work to the plaintiffs for as long as the plaintiffs continued to carry on business in South Australia; and that the defendants were in breach by ceasing to offer work in late April 2017. The plaintiffs also brought claims in injurious falsehood; defamation; conspiracy by unlawful means; and misleading and deceptive conduct.

   The trial, Judgment and costs orders

7. Following numerous directions hearings, the matter went to trial before Doyle J.  On 10 August 2018, his Honour conducted a voir dire hearing concerning the admissibility of various covert recordings made by Wentworth upon which the plaintiffs sought to rely at trial and reserved judgment. On 16 August 2018, his Honour delivered judgment, coming to the following conclusions and making the following rulings:[1]

   [1]    Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor [2018] SASC 116.

   136. For the reasons set out above, I am satisfied that each of recordings #1 - #3 and #13 - #20 were made in contravention of the relevant legislation and may not be used in these proceedings. In the case of recordings #4 - #12, I am not satisfied that they were made in contravention of the relevant legislation, and I make an order permitting their use in these proceedings. Of these recordings, I am satisfied that recordings #4, #6, #7, #9, #10 and #11 are relevant and admissible. But I am not satisfied that recordings #5, #8 and #12 are admissible and so I exclude those recordings.

   137. It follows from these conclusions that Mr Wentworth will not be entitled to give oral evidence of the conversations in respect of which the recordings have been excluded as hearsay (that is, the third party conversations or meetings that are featured in recordings #5, #8, #12 - #15 and #17 - #20). However, none of the above precludes Mr Wentworth from giving oral evidence about the balance of the conversations, being his conversations with representatives of the defendants (other than the conversation featured in #16, which I have found is irrelevant).

   138. I thus make the following rulings:

   1.     Recordings #1 - #3 and #12 - #20 were made unlawfully, and I do not permit their use in these proceedings.

   2.     I give the plaintiffs permission to use recordings #4 - #12 for the purposes of these proceedings.

   3.     Of the recordings in ruling 2:

   3.1 Recordings #4, #6, #7, #9, #10 and #11 are relevant and admissible; and

   3.2 I exclude recordings #5, #8 and #12 on the basis they are inadmissible hearsay.

8. On 20 August 2018, the trial proper commenced and over eleven days his Honour heard evidence from some 19 witnesses (including Mr Wentworth).  Judgment was reserved following final submissions on 31 October 2018. On 14 December 2018, the Judge delivered a long judgment of 104 pages in which his Honour carefully considered the whole of the evidence, relating it to all of the various asserted causes of action. At paragraph [39] his Honour referred to his previous voir dire ruling and, for reasons that become apparent, it is appropriate to reproduce the passage that then followed:[2]

   [2]    Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor (No 2) [2018] SASC 188.

   40. As explained below, Mr Wentworth had difficulty accepting and obeying this ruling.  Throughout the trial he continued to attempt to deploy the recordings that I had ruled were unlawful or otherwise inadmissible.  Mr Wentworth’s conviction that the recordings would prove his case, and his determination to deploy them in the manner he wished, added significantly to the length of the trial. 

   41. In addition to this, Mr Wentworth’s attitude and conduct in relation to the recordings he had made also provided me with some insight into his personality, and his reliability as a witness.  Significantly in this respect, it became apparent during the course of the trial that Mr Wentworth was relying upon versions of the recordings that had been heavily (and in several respects, misleadingly) edited by him.  I ultimately received into evidence two versions of each of the six recorded conversations that I ruled were admissible – the edited versions sought to be relied upon by the plaintiffs, and the unedited versions relied upon by the defendants.  I have set out relevant extracts from each of these recordings later in these reasons. In so doing I have italicised the portions of the conversations that Mr Wentworth had edited out of the recordings in the versions he sought to rely upon.

   42. The plaintiffs relied upon the edited versions of the relevant recordings both on the voir dire and at trial.  They did so without informing me that the recordings had been heavily edited.  Indeed, the plaintiffs filed an affidavit of Mr Wentworth (which was relied upon during the voir dire) that contained ‘transcripts’ of the conversations without any indication (by way of ellipses or otherwise) that parts of the conversations had been edited out or deleted.  I had listened to, and relied upon, the recordings for the purposes of the voir dire without appreciating that they had been edited.  While I had assumed that the start and end of some of the conversations may not have been captured in the recordings, it did not occur to me that they had been edited in the manner in which it is now clear they had been.  It was not until counsel for the defendants tendered the unedited versions of the conversations during cross-examination of Mr Wentworth that the nature and extent of the editing became clear.  My understanding is that the unedited versions of the recordings were only disclosed to the defendants shortly prior to trial, and after repeated requests.

   43. As will be apparent from the italicised sections of the transcripts of the recordings set out later in my reasons, the editing was not confined to the removal of stand-alone passages that dealt with discrete or irrelevant topics.  To the contrary, the editing included numerous instances of the removal of particular passages from relevant exchanges.  In several cases parts of sentences had been removed.  Importantly, several of the edits made to the recordings altered the meaning of parts of the conversations.  I have referred to some examples of this nature later in my reasons.

   44. Further, the editing appears to have been undertaken in a manner designed to disguise what had occurred.  In many cases where phrases or passages had been removed, the editing was undertaken in a manner that resulted in what remained appearing to run together in a way that made sense.  As I have said, on my first listening to the conversations, I did not realise that there were phrases and passages that had been edited out of what could be heard on the recording.

   45. During cross-examination, Mr Wentworth admitted that he had undertaken the extensive editing that had occurred.  Indeed, he acknowledged a careful and painstaking effort on his part in producing the edited recordings, and even suggested that this was a reason why he should not be forced to refer to the unedited versions of the recordings once their existence had been revealed by the defendants.

   46. Mr Wentworth gave various unsatisfactory explanations for the editing he had undertaken.  At times he insisted that it was a matter for him which parts of conversations he wished to rely upon as helpful to his case, and that it was for the defendants to do whatever they wanted to with the balance of the conversations.  Of course, this overlooked both the misleading nature of the edited recordings that he had sought to rely upon, and the fact that he never volunteered that those recordings had been edited.  At times Mr Wentworth did not accept that his editing had affected the meaning conveyed by the relevant passage from the recording, when plainly it did.  On other occasions, Mr Wentworth attempted to justify his editing on the basis that he had merely deleted words that the other person in the conversation had said, and that he considered were untruthful and hence irrelevant or unhelpful to my consideration of the issues in the case.  This purported justification is not only an inaccurate description of the editing, but also overlooks the obvious considerations that it was for the Court (and not Mr Wentworth) to determine where the truth lies, and that in many instances the words spoken were relevant to the matters in issue regardless of whether or not they were true.

   47. In summary, I am satisfied that Mr Wentworth undertook a careful and detailed process of editing the recordings that he intended to rely upon in presenting the plaintiffs’ case.  He did so in a manner intended to remove various passages that were harmful, or at least potentially harmful, to the plaintiffs’ case.  In so doing, he intended to mislead the Court, and indeed to disguise the fact that the Court was being misled.  I do not accept any of the purported justifications given by Mr Wentworth for his conduct, and am satisfied that he well knew what he was doing and the inappropriateness of it.  I consider Mr Wentworth’s conduct in attempting to mislead the Court in this way reflects poorly upon him and his credibility.

   Mr Wentworth and his evidence

   48. As I have mentioned, Mr Wentworth is an intelligent and articulate man.  In many respects he did a competent job of representing the plaintiffs’ interest in these proceedings.

   49. However, as the trial unfolded it became clear to me that there are aspects of Mr Wentworth’s personality which have not only contributed to the situation in which he finds himself, but which have also led me to conclude that I cannot safely rely upon his evidence.  In some respects I have found his evidence to be deliberately untruthful.  In other respects, the unreliability of his evidence appears to have arisen more from a lack of perception as to his own shortcomings, the position and views of others, and the impact of his conduct on others.  In any event, and whatever the precise reason for its unreliability, I have reached the conclusion that it is generally not appropriate for me to rely upon Mr Wentworth’s evidence where it conflicts with the evidence of others. 

   50. By way of further explanation for this conclusion, Mr Wentworth’s position and evidence throughout the trial was that he was a highly competent heavy combination vehicle driver, and that any suggestion to the contrary was “total unadulterated nonsense”, a “complete fabrication”, and essentially a perpetuation of the malicious conspiracy by various people to falsely accuse him of incompetence and to withdraw work from him.  He reacted poorly to any challenge by witnesses to his competence.  He regularly became frustrated, exasperated and then angry when their evidence was critical of him.  A significant proportion of his examination and cross-examination of witnesses involved shouting at them, or over the top of them.  On many occasions he did so on a basis that did not accurately or fairly reflect their evidence or other evidence in the case, or was otherwise misconceived or inappropriate.  On some occasions he resorted to inappropriately rebuking witnesses for giving evidence that was critical of him, or otherwise scoffing at, or mocking, such evidence. 

   51. Mr Wentworth routinely sought to challenge, or simply ignore, rulings that I made that he considered were getting in the way of him attempting to extract the truth from the various witnesses – including those that he called in the plaintiffs’ own case.  He repeatedly asked me to bring the trial to an end on the basis of alleged perjury by various of the witnesses.  He concluded his case by cataloguing what he alleged were over 150 instances of deliberately untruthful evidence by the various witnesses.

   52. In some respects, Mr Wentworth’s anger and attitude were a product of his emotional investment in the matters in issue.  He appears to have genuinely regarded himself as a highly skilled driver, and to have believed that he was on the path to establishing a successful business as a driver.  However, he now finds himself unemployed, financially ruined and with little by way of future prospects in the transport industry.  In this respect, while remaining inappropriate and unhelpful, his anger and attitude were understandable and did not necessarily affect the reliability of his evidence.

   53. However, as the trial unfolded, and the detail of the evidence emerged, it became clear to me that his anger and attitude also reflected a lack of perception or insight on his part.  He presented as someone who was so utterly convinced of his own skill, and the correctness and virtue of his conduct and position more generally, that he simply could not or would not countenance any criticism made of him or his performance.

   54. Despite what ultimately turned out to be a very significant, almost overwhelming, body of evidence to the effect that he had many shortcomings as a driver, and had been the subject of numerous complaints, Mr Wentworth refused to accept any shortcomings on his part.  He rejected out of hand virtually the entirety of the evidence against him as complete and unadulterated fabricated nonsense.

   55. It is true that some of these complaints and shortcomings were not communicated to him at the time.  Rather, the defendants generally attempted to work around the issues that arose with Mr Wentworth’s performance (for example, by allocating him different work), rather than confront him with them.  In part this was as a result of difficulties that had been encountered by them with earlier attempts to address criticisms with him.  I thus accept that Mr Wentworth was not aware of the extent of the discontent with his performance as a driver prior to the trial in these proceedings.  But by the end of the trial the position had moved well beyond an understandable reaction by Mr Wentworth to being confronted with criticism by others.  It became clear that Mr Wentworth has very limited insight into his own shortcomings, the position and views of others, and the impact of his conduct on others. 

   56. The defendants contended that I should find that Mr Wentworth is delusional.  Insofar as this was intended to suggest that Mr Wentworth’s evidence, and the plaintiffs’ case more generally, were characterised by idiosyncratic beliefs or impressions that are contradicted by reality or rational argument, then there is force in the defendants’ submission.  Certainly I have concluded that Mr Wentworth’s evidence, and case more generally, was in many respects contrary to reality and unsupported by rational argument.  I have identified numerous illustrations of this throughout the course of these reasons.

   57. However, there is no basis in the evidence for me to find that Mr Wentworth was delusional in the sense that that term is often used, namely as symptomatic of some form of mental disorder.  For that reason, I prefer to describe Mr Wentworth as having a lack of perception or insight, and as affected by a blinkered and uncompromising attitude in his conduct and dealings with others.

   58. While the above would have been a sufficient basis to treat Mr Wentworth’s evidence as generally unreliable, I have further concerns.  While Mr Wentworth generally appeared to be endeavouring to tell the truth, albeit through the prism of his blinkered and uncompromising view of things, I am satisfied that there were instances where he did not do so.  His evidence in relation to the editing of the recorded conversations is the most obvious and significant example.  However, I have identified some further examples in the course of these reasons.

   59. I conclude this section of my reasons by observing that a number of the plaintiffs’ submissions in these proceedings were based upon factual assertions that were not the subject of evidence.  I endeavoured on various occasions to explain to Mr Wentworth the importance of ensuring that he give evidence about all of the factual matters upon which he wished to rely, and that his questions of (and assertions to) other witnesses were not evidence in the trial.  However, despite appearing to understand these explanations, and saying that he understood them, there remain a number of apparent gaps in the plaintiffs’ evidence.  That said, to the extent that the plaintiffs’ ‘position’ in relation to various factual matters has been apparent from the questions and submissions advanced by Mr Wentworth, I have endeavoured to take account of this in my consideration of the evidence and in making findings of fact.

1. It would take many pages to summarise Doyle J’s consideration of the evidence and of the contrasting positions of the parties concerning the admitted recordings. I will refer to the following passage concerning a telephone conversation with Mr Paul Page on 21 March 2017 as an example only:[3]

   199. Mr Wentworth cross-examined Mr Page at length in relation to several aspects of this conversation.  Some aspects of that cross-examination were illustrative of the approach taken by Mr Wentworth to the presentation of the plaintiffs’ case more generally.

   200. For example, Mr Wentworth cross-examined Mr Page by putting to him a version of his statement in paragraph 14 of the transcript above to the effect that Mr Wentworth told Mr Page that he had “promised” him that he was going to be doing the Crystal Brook work.  However, when it was pointed out to Mr Wentworth that the transcript did not include any reference to the word “promised” in that passage, Mr Wentworth challenged the accuracy of the transcript, and insisted that the tape recording be played to the witness.  It was played, and when counsel for the defendants and I each confirmed that we had not heard the word “promised” used, Mr Wentworth insisted that it was used.  The tape was played again.  There was no doubt that Mr Wentworth was wrong and that the word “promised” was not used.  However, Mr Wentworth refused to accept this.  It remains unclear to me why Mr Wentworth refused to accept that he was wrong about whether the recording included the word “promised” in this exchange.  The defendants gave this as an illustration of what they contended was Mr Wentworth’s delusional behaviour.  I consider it more likely that this was merely an illustration of Mr Wentworth’s stubborn refusal to accept any mistakes on his part.

   201. Mr Wentworth also cross-examined Mr Page as to the truthfulness of his statement in paragraph 31 that “Crystal Brook is not on at the moment”.  He put it to Mr Page that in fact the work from Crystal Brook had resumed the previous day, and that Mr Page had therefore lied to Mr Wentworth in this conversation.  The difficulty with this passage of the cross-examination was that Mr Wentworth refused (as he did on multiple occasions, despite my requests and then directions) to use the unedited version of the recording and transcript that were in evidence.  Rather, in defiance of my requests and directions that he not do so, he insisted upon, and persisted in, framing his questions quite unfairly by reference to the edited versions of the transcript from which he was working.  From the unedited version of the conversation it is plain that Mr Page acknowledged that the work was happening; it was just that this work was being covered by others and not being given to Mr Wentworth. In particular, Mr Page had made express references to Crystal Brook “running” in deleted paragraphs 53 and 55.  In other words, while the edited version of the recording suggested that Mr Page spoke untruthfully, the unedited version suggested otherwise. Despite this being brought to Mr Wentworth’s attention during my interventions in his cross-examination, he persisted in his questioning of the witness on a false premise, rejecting the witness’ answers based upon the unedited transcript, and indeed rebuking him for “playing games.”

   [3]    Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor (No 2) [2018] SASC 188.

2. As a matter of interest, at “ground” 14, Mr Wentworth complains that the Judge excluded the recording of “a phone call of the 21^st March 2017 with Paul Page”. In fact, the Judge in his ruling on the voir dire admitted that recording; indeed, his Honour set out lengthy passages of the recorded conversations with Mr Page (including that of 21 March 2017) at paragraphs [194] to [196] of the substantive judgment.

3. In any event, his Honour dismissed each of the plaintiffs’ claims and ordered that the plaintiffs pay the defendants costs. His Honour granted the defendants liberty to apply in respect of outstanding issues as to costs.

4. On 25 February 2019 and 14 March 2019, the second and first defendants respectively filed interlocutory applications seeking further specific costs orders. On 18 March 2019, the plaintiffs filed an interlocutory application seeking the recusal of Doyle J in relation to costs applications and on 16 April 2019 filed a further interlocutory application seeking, inter alia, a stay of the proceedings (including costs orders) and an order that Doyle J recuse himself from any further participation in the action.

5. On 17 April 2019, Doyle J delivered rulings on the various interlocutory applications. His Honour declined to recuse himself. As to the defendants’ applications, his Honour ordered that:

   -the plaintiffs pay the first defendant’s costs incurred up to and including the date of 4 July 2018 in the lump sum amount of $35,000 excluding GST and in the amount of $3,000 excluding GST in respect of disbursements;

   -the plaintiffs pay the first defendant’s costs on and from the date of 5 July 2018 in the lump sum amount of $70,000 excluding GST and $65,000 in respect of disbursements;

   -the plaintiffs pay the second defendant’s costs in the lump sum amount of $51,000 exclusive of GST and disbursements of $65,000 exclusive of GST.

   The course of the appeal proceedings

6. On 29 January 2019, the plaintiffs lodged for filing a proposed Notice of Appeal. By letter dated 11 February 2019,[4] the Deputy Registrar wrote to Mr Wentworth to inform him that the Registry considered the Notice of Appeal to be an abuse of process of the Court. The Registry was directed by a Judge to reject the Notice of Appeal. The letter recited:

   The proposed Notice does not articulate the errors of fact and/or law it is said that the trial judge committed, the basis upon which you assert that the judge’s conclusions are erroneous, or why – if error is established – the orders should be set aside.

   [4]    The letter was forwarded to Mr Wentworth by email on 14 February 2019.

7. On 21 February 2019, the plaintiffs again attempted to file a Notice of Appeal. On 28 February 2019, Mr Wentworth was provided with reasons of Judge Dart for rejecting the Notice of Appeal. Judge Dart found:

   5. It should be noted that a document is an abuse if it contains matter that is inter alia vexatious. Material is vexatious if it is incomprehensible. The whole document does not need to be vexatious before the Court is justified in rejecting it for filing.

   6. I have carefully considered the proposed Notice of Appeal. It is 122 pages long. At the beginning of the document the orders complained of are set out and the orders sought are also set out. They occupy slightly more than two pages.

   7. The rest of the document, which commences on page 5, contains what are said to be grounds of appeal. The information that follows are not grounds of appeal. They are a recital of a range of assertions, details of tape recordings and the like. The document is vexatious and, thus, an abuse of process of the Court.

8. On 12 March 2019, the plaintiffs filed a further Notice of Appeal which was marked “Received Not Filed”. On 13 March 2019, the Appeals Coordinator contacted Mr Wentworth regarding a Remission of Fees application. On 20 March 2019, the plaintiffs’ Notice of Appeal was finally accepted for filing.

9. However, it is to be noted that such filing on 20 March 2019 was considerably out of time: the time limit of 21 days from the delivery of judgment on 14 December 2018 expired on 14 January 2019.[5]Although required by rule 282(2)(f) of the Supreme Court Civil Rules 2006 (SCR), no application for an extension for time was made and no reasons in support of such an application were formally given (and still have not been).

   [5]    Rule 5(6)(b) of the Supreme Court Civil Rules 2006 provides that the “Christmas vacation” is excluded from the calculation of time. The “Christmas vacation” is defined by supplementary rule 55(1) as the calendar days between Christmas Day and New Year’s Day. Mr Wentworth was required to file any Notice of Appeal by Saturday, 12 January 2019 but because that date fell on a day that the Registry was closed, the date for filing was Monday, 14 January 2019 by virtue of the effect of rule 5(4).

10. On 29 March 2019, the Appeals Coordinator again spoke to Mr Wentworth at the Registry and by email in relation to the steps which needed to be followed in preparing case books and setting the appeal down for hearing. Mr Wentworth was provided with a copy of rules 239 and 240 of the Supreme Court Civil Supplementary Rules 2014 (SCCSR), together with a draft template for the case book index.

11. On 27 May 2019, the Appeals Coordinator had a further conversion with Mr Wentworth via telephone and email. The Appeals Coordinator reiterated the information given to Mr Wentworth on 29 March 2019 and re-sent the email of 29 March 2019, together with the associated attachments, to Mr Wentworth.

    The course of the present applications on 28 June 2019 and 12 July 2019

12. On 20 June 2019, the first defendant filed an interlocutory application, scheduled for hearing on 28 June 2019, which sought the following orders:[6]

    1.   That this appellate proceeding be dismissed for want of prosecution, pursuant to rule 240(2)(b) of the Supreme Court (Civil) Supplementary Rules 2014 (SA) and / or rule 296(1) of the Supreme Court (Civil) Rules 2006 (SA).

    2.   That the first respondent’s costs of this application be paid by the appellants.

    3.   Such further or other orders that this Honourable Court deems appropriate.

    [6]    The second defendant, by its application dated 8 July 2019 referred to at paragraph 2, applied for orders in similar terms. At the Chambers List hearing on 28 June 2019, the second defendant appeared to abide by any orders granted on the first defendant’s application.

13. On 27 June 2019, Mr Wentworth delivered to the Registry three copies of a purported case book. There were many deficiencies in these books, including various missing pages (the particular missing pages differing as between each of the “copies”) and almost total non-compliance with SCCSR 239. Further, no copy was served on the defendants, again contrary to the Rules.

14. On 28 June 2019, immediately prior to the commencement of the hearing of the scheduled interlocutory application, Mr Wentworth handed “copies”[7] of the purported case book to counsel for the defendants at the Bar table.

    [7]    None of the “copies” precisely corresponded with others.

15. During that hearing, the defendants each foreshadowed that they would apply for security for costs. Mr Wentworth in turn made numerous factual assertions from the Bar table concerning various topics, including the proposed applications for security for costs. He was given a further opportunity to provide evidentiary material concerning the defendants’ applications, including those for security for costs, and the following orders were made:

    1. Any visual or aural recording or attempted recording of any of this proceeding today or on any future date to which it may be adjourned is absolutely prohibited. Any transgression of this order will be considered to be a serious contempt of Court and punishable accordingly.

    2. The Respondents to this application are permitted to file and serve an affidavit dealing with the question of delay in the institution of the appeal and in the setting down process of the appeal, and in relation to the question of an application for security for costs concerning the appeal by 4.00 pm on Monday, 8 July 2019.

    3. The Applicants may file and serve any further application that they wish to make in these proceedings, together with supporting affidavits, by 4.00 pm on Monday, 8 July 2019.

    4. This hearing will be adjourned until Friday, 12 July 2019 at 10.00 am.

16. On 8 July 2019, the defendants filed their respective applications for security for costs. The first defendant sought security for costs in the amount of $35,000 and an order that the appellate proceeding be stayed until the plaintiffs comply with such order. The second defendant sought orders that: the plaintiffs’ appeal be dismissed; or in the alternative, the plaintiffs provide security for costs in the sum of $17,400 and that the action be stayed until the plaintiffs provide such security.

17. On 9 July 2019, the plaintiffs filed two further affidavits in purported compliance with Order 3 made on 28 June 2019. The plaintiffs also delivered to Registry a further three copies of a purported amended case book. Registry made clear that the copies were being received but not being accepted for filing.

18. On 10 July 2019, the plaintiffs attempted to file at Registry a further interlocutory application seeking, inter alia:

    -“default judgment” of the appeal in favour of the plaintiffs; and

    -damages in the amount of $53,832,898.82; and

    -an order that each of the defendants publish a half page unreserved apology in the Advertiser newspaper in the terms set out in the application.

19. This “application” and the supporting affidavit were forwarded by the Registry to Chambers for my instructions. After reviewing the application and supporting affidavit, I instructed the Registry through my associate to reject both documents pursuant to rule 53 of the SCR on the basis that they constituted an abuse of the process of the Court.

20. On 12 July 2019, I heard submissions on the defendants’ applications for security for costs and reserved judgment. 

    Consideration

21. The defendants’ applications for security for costs are brought pursuant to rule 295(1)(g) of the SCR which provides:

    (1)    The Court may exercise any of the following powers in relation to an appeal or an application for permission to appeal—

    …

    (g) the Court may order that security be given for the costs of an appeal[.]

22. Under previous versions of rule 295(1)(g), a party seeking an order for security for costs had to meet a threshold requirement of demonstrating that “special circumstances” existed before the Court’s discretion was engaged.[8] That threshold requirement no longer exists and rule 295(1)(g) now simply requires the Court to exercise the discretion judicially having regard to established principles. I turn to a consideration of the relevant factors here.

    [8]    See Viscariello v Livesey & Anor [2014] SASCFC 40, [8]-[11].

    A demonstrated risk of impecuniosity

23. The first of the factors to be considered here is the financial means of the plaintiffs. On a number of occasions, Mr Wentworth has vehemently asserted that both plaintiffs are impecunious, including the following statements:

    -In the Statement of Claim dated 14 August 2017, the plaintiffs pleaded that Mr Wentworth “has no prospect whatsoever of any other work or income through employment”.

    -In an affidavit filed on 14 March 2018, Mr Wentworth deposed to the fact that “[t]he Second Plaintiff has no assets”; that “[t]he First Plaintiff has no remaining assets other than a six year old car which is worth many thousands of dollars less than it’s [sic] current payout figure”; and that “[f]or many days of any given month the Second Plaintiff has no money whatsoever for any food – fuel etc”.

    -In the Third Statement of Claim filed on 23 April 2018, the plaintiffs claimed “consequential loss and damage which includes the destruction of the credit history and credit worthiness of Nanosecond and Wentworth of $817,221.15 … from Garden Grove”; and that the plaintiffs “now have unpaid defaults recorded on their credit files and are now unable to obtain loans or advances for the smallest amounts”.

    -There were a number of exhibits tendered during the trial before Doyle J which demonstrated that (1) the plaintiffs have monthly financial commitments between roughly $30,000 to $40,000 (Exhibit P2); (2) that as at 2 May 2018, Mr Wentworth’s Commonwealth Bank account held an available balance of $1.82 (Exhibit P9); and as at 30 June 2018, the plaintiffs owed a debt to a third party, one Mr Fischer, in the sum of $32,568.73 (Exhibit P11).

    -In his Honour’s judgment delivered on 14 December 2018, Doyle J observed that Mr Wentworth “finds himself unemployed, financially ruined and with little by way of future prospects in the transport industry”.[9]

    -On 14 March 2019, the solicitor acting for the first defendant filed an affidavit which exhibited an email from Mr Wentworth to Griffins Lawyers dated 29 June 2018, wherein Mr Wentworth stated that he had $1.82 in his bank account as at that date.

    -On 20 March 2019, Mr Wentworth filed an affidavit which deposed to the fact that “[t]he financial situation of the Appellants is past critical”.

    -On 16 April 2019, Mr Wentworth filed an affidavit deposing to the fact that he was “[o]verwhelmed with debt” and “with squalor and deprivation”.

    -In his Honour’s ruling on 17 April 2019, Doyle J observed that “[t]he plaintiffs do not challenge the suggestion that they are impecunious” and that, to the contrary, Mr Wentworth had filed affidavit evidence “emphasising the lack of resources available to the plaintiffs”.

    -At the hearing before me on 28 June 2019, Mr Wentworth stated that, “in regard to costs; there is no money anyway”; that there was “no likelihood whatsoever” of the plaintiffs being able to pay an order for costs if such an order were made against them by the Full Court; that “there’s no money for anything”; that the “$150 to complete the copying and the binding for this appeal document, this appeal book yesterday, took … the last bit [of] money I had, now there’s no money for food”; and that the plaintiffs have “well over a million dollars outstanding”.

    [9]    Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor (No 2) [2018] SASC 188, [52].

24. On 8 July 2019, the first defendant filed an affidavit to which was exhibited a copy of searches of the Personal Property Securities Register in respect of both plaintiffs. The search as to the first plaintiff revealed some seven separate registrations to various debtors of which the first plaintiff was the grantor. Some six of these registrations related to commercial property, namely motor vehicles, while the other registration related to commercial property, namely “other goods”.

25. In addition to the above debts, the plaintiffs are currently subject to substantial costs orders following the trial before Doyle J in the amount of $289,000. The defendants are understandably concerned that the plaintiffs will be unable to meet those substantial costs orders, let alone any further costs orders which may be made against the plaintiffs should the appeal prove unsuccessful.  

26. All of the above clearly demonstrates that the plaintiffs have very substantial debts and are impecunious. I find that the plaintiffs cannot meet the costs orders made by Doyle J and could not meet any costs order(s) made against them by the Full Court should their appeal be unsuccessful.

    Prospects of success on appeal

27. A second factor to be considered is the prospects of success of the appeal. Having considered the “Notice of Appeal” eventually filed on 20 March 2019 and the various iterations of the purported case book, I assess the prospect of success as being extremely low for a number of reasons.

28. First, there is the manner in which Mr Wentworth has thus far attempted to conduct the appeal proceedings; it is redolent of rank incompetence or studied defiance of the Supreme Court Rules, or both.

29. The Notice of Appeal, in its third iteration, was eventually accepted for filing 65 days out of time. But even now, the purported grounds of appeal (to be referred to as the “grounds”) are grossly defective. Interestingly, the “grounds” do not even appear in the latest iteration of the case book, but I will refer to them below.

30. Despite the considerable efforts of Registry to assist Mr Wentworth, the process of preparing an index and assembling case books has been hopeless. Mr Wentworth has demonstrated a complete unwillingness to engage with the defendants in the process of preparing the index and compiling the case book, notwithstanding supplementary rule 240 which requires input by both sides. In an illuminating passage of dialogue at the hearing on 28 June 2019, Mr Wentworth stated:

    MR WENTWORTH:    The first point there is that it is not appropriate for the respondents or their counsel to make any form of dictates about what the success or likely is of the appeal itself [sic], nor is it appropriate for them to in any way have anything to say about what is included in the case book which the appellants believe to be the evidence or the factual matters to which the appeals court would need to have regard to.

    HIS HONOUR:     Are you seriously saying that? That the respondents have no input into what should go into the appeal book?

    MR WENTWORTH:    This is not their appeal book.

    HIS HONOUR:     Right, I see.

    MR WENTWORTH:      Well I mean –

    HIS HONOUR:     Are you saying that if you choose to just put in, I don’t know – and I’m not suggesting these percentages but X%, all right, of the evidence because that the bits you like, the respondents can’t come along and say ‘Hang on a minute, we want the rest of the evidence to put that in context’? Is that what you’re suggesting, is it?

    MR WENTWORTH:      What I’m suggesting is that the case book is our case to the Full Court.

1. A further set of purported case books was delivered by Mr Wentworth to Registry on 9 July 2019; if anything, they are worse than those previously provided on 27 June 2019. They consist of the following:

   -at pages 5-7: the Summons.

   -at pages 8-37: the Third Statement of Claim. It starts with numbered paragraphs (being different numbers to those in the original Third Statement of Claim) and after four pages inexplicably changes to alphabetical letters A to Z and then AA, AB and so on until the last paragraph DT. None of this at all corresponds with the original documents actually used at trial and the present document is worthless.

   -at pages 38-129: a document prepared by Mr Wentworth entitled “Introduction” (starting for some reason at paragraph 38 and ending at paragraph 179). This consists of disconnected comments, allegations and what is asserted to be various “edited” transcripts of conversations between various persons, interspersed with comments as to the alleged significance of such conversations. (Whether these relate to recorded conversations ruled admissible or inadmissible or different conversations altogether is not clear.)  This document appears where one would expect to find a list of the witnesses called at trial (but no such list of witnesses is included). This document is worthless and should not have been included.

   -at pages 131 to 134: P1 tendered at trial.

   -at pages 135 to 138: in order of appearance: P6 (wrongly identified as “P2”), P5 (wrongly identified as “P3”); and P7 (wrongly identified as “P4”) tendered at trial.

   -at pages 139 to 141: an article from The Advertiser Newspaper dated 8 February 2019 on the dismissal of the claim. This document should not have been included.

   -at pages 142 to 149: a published article on the topic of misleading or deceptive conduct. This document should not have been included.

   -at pages 150 to 156: some typed notes on the topic of misleading or deceptive conduct. This document should not have been included.

   -at pages 157 to 243: the substantive judgment of Doyle J, delivered on 14 December 2018 in which his Honour dismissed the plaintiffs’ claims.

   Omissions from the “case books”

2. Notable by their absence are the following required documents:

   -the Notice of Appeal;

   -the Second Defence of the defendants;

   -a list of witnesses in the case and transcript references of the examination, cross-examination and re-examination of such witnesses the evidence of whom the plaintiffs place reliance on the appeal;

   -a list of the affidavit evidence to which the plaintiffs seek to refer;

   -many of the exhibits actually tendered and admitted during the trial and their respective exhibit numbers;[10]

   -the judgment of Doyle J concerning the admissibility of recorded conversations, delivered on 16 August 2018;

   -sealed copies of the orders made at trial; and

   -the case book certificate.

   [10]   P1 has been correctly identified and included. Mr Wentworth has also included P6 (but identified it as “P2”); P5 (but identified it as “P3”); and P7 (but identified it as “P4” and incorrectly described what is a letter as an email trail). So-called P5, P6 and P7 in the case book were not documents tendered at trial.

   Other failures to comply with rule 239

3. In addition to the above matters, there are numerous other failures to comply with supplementary rule 239, including but not limited to the following:

   -failure to ensure that the documents in the case books are copied using both sides of A4 sized bond paper;

   -failure to comply with the specified order of contents of the case book;

   -failure to show the surnames, in capital letters, preceding the full given names of witnesses and the detail of the pages of the transcript to which the Court is referred (instead, as noted below, Mr Wentworth has declined to provide the required list of all witnesses called at trial and instead has simply made assertions as to his interpretation of some of the evidence);

   -failure to include any reference to the trial transcript whatever (instead, Mr Wentworth has included transcripts of various recorded conversations the provenance of which is entirely unclear as is the question of whether they are within those ruled admissible,[11] ruled inadmissible or are “new” and additional to those ventilated at trial).

   [11]   Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor [2018] SASC 116.

4. In short, the prospects for the setting down of an appeal for hearing at any time in the near future appear rather dismal.

   The grounds of appeal

5. But of paramount importance, the purported grounds of appeal (a third iteration) quite obviously enjoy extremely low prospects of success.

6. There are some 46 “grounds” (which are incorrectly numbered from 3 to 48). That high number is accounted for by the fact that the “grounds” largely consist of discursive argument about a few recurring themes set out in paragraphs (each comprising a sentence or group of sentences). Each such paragraph is numbered, the total number happening to be 46. With some difficulty, the “grounds” can be divided into the following categories.

   -First, broad assertions and exhortations with no sufficient detail about what is sought to be argued. This category includes “grounds” 3, 46 and 48.

   -Secondly, complaints about a specific incident in which Mr Wentworth was said to have collided with a structure at Crystal Brook. This category includes “grounds” 29 to 44 and 47.

   -Thirdly, complaints about other specific incidents in which Mr Wentworth was said to have run trucks off the road and taken too long to load or unload. This category includes “ground” 45.

   -Fourthly, complaints about the Judge’s refusal to admit into evidence a number of the covert recordings made by Mr Wentworth. This category includes “grounds” 4, 5, 8, 14 to 24 and 28.

   -Fifthly, complaints about the Judge’s criticism of Mr Wentworth’s editing of transcripts of recorded conversations. This category includes “grounds” 6, 7, 9, 13 and 14.

   -Sixthly, the making of bald allegations against the defendants and persons associated with them. This category includes “grounds” 10, 11, 26 and 27.

   -Seventhly, the making of bald assertions as to the effect on, and injuries suffered by, the plaintiffs. This category includes “grounds” 12 and 25.       

7. I have carefully reviewed the Judge’s long and detailed reasons (37 pages) concerning the voir dire rulings and his Honour's even longer reasons concerning the substantive trial. I cannot detect in either set of reasons any arguable error in his Honour's consideration of the law, its application to the facts or the resultant rulings and orders.

8. As to Mr Wentworth’s various factual assertions, it is to be noted that the Judge made a number of strong adverse credit findings in respect of Mr Wentworth set out above.  There does not appear to be advanced any cogent basis upon which those findings could be overturned.

   Stultification of the proceedings

9. A third factor to be considered is stultification of the appeal. In the majority of cases, as here, an order for security for costs will be opposed on the basis that it will have a tendency towards stultification of the appeal. However, it is to be remembered that many such appeals do ultimately proceed despite an order for security for costs having been made. The party asserting that the appeal would be stultified bears the onus of proving such allegation.[12]

   [12]   See, eg, Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744, [66] (Einstein J).

10. Importantly, the tendency for an order for security for costs to stultify the appeal can only be one factor to be balanced against other factors such as low prospects of success of the appeal and high risk of the plaintiff being unable to enforce an award of costs. The words of Allanson J in Unified Pty Ltd v Cancer Council Western Australia Inc (No 3) are apposite:[13]

    Even if I were satisfied that the order is likely to stultify the plaintiff’s action, I would still make the order. The amount of the costs that the defendant will incur if this matter proceeds is very large. I must strike a balance between protecting the defendant from the possible consequences of being sued by an impecunious corporation with limited liability, and avoiding injustice to the plaintiff by unnecessarily prejudicing it in the conduct of this litigation. The balance, in my opinion, requires the defendant to have greater protection than that offered by the plaintiff.

    [13] [2011] WASC 161, [32].

11. And in Law of Costs, Dal Pont observes:[14]

    … the case law recognises that the combination of two factors almost invariably dictate an order for security for costs of an appeal – the lack of merit in the appeal and the appellant’s impecuniosity – especially if the defendant is not guilty of delay or other potentially disentitling conduct. … [T]hese two factors combined are, especially where there remain unsatisfied costs orders against the appellant, likely to outweigh the risk that the order will stultify the appeal or an alleged public interest in the appeal. [Citations omitted]

    [14]   G E Dal Pont, Law of Costs (LexisNexis Butterworths, 4th ed, 2018) 1081 [29.106].

    The balancing process in the context of an appeal rather than a trial

12. A fourth factor to be considered is that the balancing process here occurs in the context of an appeal rather than a trial. Thus in Thompson v Robinson, Keane JA stated:[15]

    6. … The learned primary judge found that the applicant "has no funds or assets available to satisfy a costs order on an appeal", and the applicant continues to assert that he is impecunious. While the appellant's apparent lack of funds would have weighed strongly against ordering security at first instance, as such an order might have effectively closed the door of the court to him, it is of much less importance on appeal. [Citations omitted]

    [15] [2005] QCA 253.

13. And in Sands v State of South Australia, White J stated:[16]

    The provision of security with respect to appeals has always been distinguished from the provision of security at the trial stage. So much is apparent from the well-known statement of Bowen LJ in Cowell v Taylor:

    The general rule is that poverty is no bar to a litigant; that, from time memorial, has been the rule, and also, I believe, in equity. There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of Her Majesty’s Courts, and so an insolvent party is not excluded from the Courts, but only prevented, if he cannot find security, from dragging his opponent from one Court to another. [Citations omitted]

    [16] [2013] SASC 105, [32].

14. And in Lesses v Maras, Doyle J stated:[17]

    First, the application is for security for the costs of an appeal rather than a trial. Courts will more readily order for security in the former category of case because the appellant has already had the opportunity to have the matter litigated, and has had the benefit of a judicial determination of the underlying controversy. … [Citations omitted]

    [17] [2016] SASC 117, [7].

15. Apart from the basic proposition that an appellant has already had the benefit of a full Supreme Court trial, there are other more specific justifications for the distinction. In my view, the most important is that a Court is generally far better placed to assess the prospects of success of an appeal than it is to forecast in advance how a trial will turn out. I respectfully agree with the following observation by Kourakis CJ in Diakos v Mason:[18]

    … An order for security for costs by a trial Judge may deny a plaintiff the important right to a judicial determination of his or her claim for redress of a wrong.  However, the appellant has had the benefit of a judicial determination of the underlying controversy.  The statutory right of a further review by way of appeal is a safeguard against error, but the fact remains that the plaintiff has had his side of the controversy judicially determined and in fact determined adversely to him.  Moreover, the risk of injustice to an appellant if an order for security is prohibitive can be assessed with greater certainty on appeal than at first instance. [Emphasis added]

    [18] [2010] SASC 108, [10].

16. Further, as a matter of fine tuning of that proposition, the specificity of a forecast as to prospects of success on appeal will vary according to the types of grounds of appeal proposed. If mistakes of law are asserted, an assessment in terms of very high or very low degrees may be possible. Of course, an assessment, in cases involving disputed or evolving areas of the law may be very difficult; but clearly the present is not such a case.

17. In the present case, no specific errors of law are asserted. Rather, various attacks are made on various factual findings which are largely if not entirely based on findings as to the credit of witnesses. The prospects of demonstrating that his Honour was in error in that regard would appear to be extremely low. I note that in the present context of an application for security for costs, the Queensland Court of Appeal observed in Luadaka v Dooley:[19]

    It is common ground that Ms Luadaka is impecunious. That is an important factor against making an order for security for costs at first instance. But it is of less importance on an appeal especially where, as appears to be the case here, the decision of the learned District Court judge involved findings of fact based on credit.

    [19] [2003] QCA 51, [5] (McPherson and Davies JJA and Cullinane J).

    A submission that the defendants caused the plaintiffs’ impecuniosity

18. A fifth factor to be considered is the plaintiffs’ submission that the defendants caused their impecuniosity, a submission that is frequently made in circumstances such as the present. Here I bear in mind the comments by Brownie AJ in Melunu Pty Ltd v Claron Constructions Pty Ltd:[20]

    The respondent also submitted that the conduct of the applicant had caused or contributed to the impecuniosity of the respondent. This is a submission which seems to be made frequently in response to an application for security for costs. I respectfully agree with the decision of Rolfe J in Dalma Formwork Pty Ltd v Concrete Constructions Group Ltd [1998] NSWSC 472, where his Honour said that a respondent to a motion for security for costs relying upon this as a ground for resistance, must establish a real causal connection between the conduct and impecuniosity which, in the exercise of the Court’s discretion, would make it unjust to require security, and it must be established that the applicant for security for costs has been guilty of some form of misconduct or unacceptable business dealings qua the respondent, such as in this case, inappropriately making claims for and receiving monies for variations, which payments caused the respondent’s impecuniosity. Mere general assertions, not supported by evidence, will not suffice. To hold to the contrary would be to defeat the purpose of the rule and to the section.

    [20] [2004] NSWSC 1064, [31]. See also Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57, [45]-[46] (Edelman J).

19. And in Law of Costs, Dal Pont notes:[21]

    In many cases where a plaintiff has alleged that its impecuniosity has been caused by the conduct complained of against the defendant, the court has not been satisfied of the relevant causation. … For the court to make the order on this basis, therefore, it must be satisfied on reasonable grounds that the plaintiff’s assertion is correct. Mere general assertions, unsupported by evidence, do not suffice. The plaintiff must be ‘able to support [the] allegation with relatively straightforward and unambiguous evidence of a fairly compelling nature, because otherwise the hearing of the issue of security might become a trial within a trial’. [Citations omitted]

    [21]   G E Dal Pont, Law of Costs (LexisNexis Butterworths, 4th ed, 2018) 1077 [29.101].

20. In Sands v State of South Australia, White J stated:[22]

    35. The appellant submitted that his impecuniosity had less significance in the present case because it had been caused by the conduct of the South Australian Police and Crown Law Officers of which he complained. The submission was that the State should not be able to rely upon impecuniosity of which it was the author. In considering this submission, the appellant’s impecuniosity arising from his inability to pay the cost of the proceedings at first instance can be disregarded.

    36. The submission confronts an express finding of the Judge that the appellant had not proved any causal connection between the conduct of the police or others on 3 March 2004, which he impugned, and the publications by Channel 7 and the ABC. The appellant wishes to challenge that finding on the appeal but, while it stands, it is not open on the present application to proceed on the basis that the State was, or may have been, the cause of the appellant’s impecuniosity.

    [22] [2013] SASC 105.

21. Here, while the plaintiffs may seek to rely upon evidence adduced at trial, Doyle J comprehensively considered their factual case at trial and rejected it, largely on credit grounds. As stated above, the prospects of demonstrating that his Honour was in error in that regard appear to be extremely low.

    Does the appeal raise important public or legal issues?

22. A sixth factor to be considered is whether the effect of such an order would be to stifle the initiation of proceedings which raise important public or legal issues. The present case does not raise issues of public or legal importance; it merely involves a dispute between private parties, the resolution of which affects only those parties.

    The defendants do not reside outside the State

23. A seventh factor may be the place of residence of a party against whom an order is sought.  Here the defendants do not reside outside the State jurisdiction, a factor militating against the making of the order. However, I consider that this factor has very little weight in the circumstances of this case.

    Conclusion as to the making of security for costs orders 

24. I conclude that the demonstrated risk of impecuniosity and the extremely low prospects of success in this matter outweigh the prejudice to the plaintiffs of their appeal being stultified and that it is appropriate to make orders for security for costs.

    The quantum of the security for costs orders

25. The solicitors for the first defendant have estimated their costs at $45,350, on a solicitor/client basis and apply for security for the costs in the amount of $35,000. This is on the basis of a two day appeal and includes an amount of $3,150 for the preparation of the appeal case books by themselves.

26. The solicitors for the second defendant have estimated their costs at $17,400 on a different basis that approximates party/party costs and applies for security for the costs in that amount of $17,400. It is to be noted that this is on the basis of a one day appeal and does not include an amount for the preparation of the appeal case books. Further, counsel emphasised that this estimate is very much a minimum figure and it is likely that the solicitors will charge the client more than this, depending on the time actually taken.

27. As to the duration of an appeal hearing, it could well be two days rather than one. From my experience with Mr Wentworth over the course of a long directions hearing and the substantive hearing of the security for costs application (and consistently with the views expressed by Doyle J in his two judgments), Mr Wentworth is a strident, aggressive and discursive litigant. He apparently intends to pursue innumerable factual matters at great length and is unlikely to willingly accept guidance from the Court as to what might be important or unimportant. Further, he has stated that he intends to seek to play in Court numerous passages of recordings of conversations rather than to proceed by reference to agreed transcripts, as is done in the vast majority of cases.

1. In addition to the duration of an appeal hearing, there are some matters relating to necessary additional work prior to such a hearing that should be mentioned.

2. The first matter is the case book. As discussed above, the present purported case books are worthless and the task will need to be performed ab initio by competent persons. The first defendant has volunteered for this task and only the first defendant claims an amount for it; that is entirely appropriate since there does not appear to be any conflict between the defendants as to the content of the case book. This may be a long and tedious process (and the amount claimed in this regard of $3,150 may turn out to be conservative), given Mr Wentworth’s behaviour thus far, including his expressed attitude that he is the sole decider as to the contents and format of the case book.

3. A second matter is that at the substantive hearing of the security for costs application Mr Wentworth vehemently stated (more than once) that he intends to seek the issuing and service of subpoenas on numerous persons, presumably for their attendance at the substantive hearing of an appeal to give evidence. This course would presumably be resisted by the defendants but Court appearances may be necessitated with associated additional expense.

4. In all of the circumstances, I consider that the appeal proceeding should be stayed until the plaintiffs do pay into Court the amount of $25,000 for security for the costs of the first defendant and the amount of $17,400 for security for the costs of the second defendant.[23]

   [23]   The second defendant has limited its application to the amount of $17,400.

5. I will hear the parties as to the form of the orders to be made.