Ninan v St George Bank Ltd (No 2) - [2013] FCA 273

FEDERAL COURT OF AUSTRALIA
Ninan v St George Bank Ltd (No 2) [2013] FCA 273

Citation: Ninan v St George Bank Ltd (No 2) [2013] FCA 273

Parties: GEORGE NINAN and MOLLY GEORGE v ST GEORGE BANK LTD ABN 92 055 513 070, VALUER GENERAL, GODINILAND DEVELOPMENTS PTY LTD ACN 100 701 148 AND RICHARD AH BOEY TAY, DEBORAH ANDREWS, COLIN DYMOND, WANNAUNUP DEVELOPMENT NOMINEES PTY LTD ACN 008 853 807 AND PORT BOUVARD LTD, SIMON WROTH, GREG PENN, NATIONAL AUSTRALIA BANK ABN 12 004 044 937 and WESTPAC BANKING CORPORATION ABN 33 007 457 141

File number: NSD 700 of 2012

Judge: GRIFFITHS J

Date of judgment: 28 March 2013

Catchwords: PRACTICE AND PROCEDURE – non-compliance with security for costs order – whether to vary or set aside security for costs order – no evidence of change in circumstances or fresh evidence since order made – whether to dismiss proceedings against certain respondents

Legislation: Federal Court of Australia Act 1976 (Cth) s 56(3)
Foreign Judgments Act 1991 (Cth)
Federal Court Rules 2011 rr 1.32, 39.03, 39.05(c)

Cases cited: Capital Webworks Pty Limited v Adultshop.com.Ltd [2002] FCA 1420
Gurtler v Finance Now Pty Ltd [2009] FCA 631
Idoport Pty Ltd v National Australia Bank [2002] NSWCA 271
Microbio Resources Inc v Betaten Ltd (unreported, FCFCA Black CJ, Sheppard and Einfeld JJ, 8 October 1993
Ninan v St George Bank Ltd (2012) 294 ALR 190
Ninan v Valuer General [2012] WASAT 248
Pampered Paws Connection Pty Ltd v Pets Paradise Franchising (Qld) Pty Ltd (No 7) [2010] FCA 626
Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [2001] FCA 1603

Date of hearing: 27 March 2013

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 38

First Applicant: The first applicant appeared in person

Second Applicant: The first applicant appeared on behalf of the first applicant

Counsel for the Second Respondent: Mr M Danger

Solicitor for the Second Respondent: Western Australian State Solicitor's Office

Solicitor for the Third Respondent: The third respondent did not appear

Counsel for the Fourth and Fifth Respondents: Mr M White

Solicitor for the Fourth and Fifth Respondents: Lander & Rodgers Lawyers

Counsel for the Respondents: Mr P Arblaster

Solicitor for the Sixth Respondent: Lavan Legal

Counsel for the Seventh and Eighth Respondents: Ms J Sandford

Solicitor for the Seventh and Eighth Respondents: Colin Biggers and Paisley

Counsel for the Ninth Respondent: Mr R Bellamy

Solicitor for the Ninth Respondent: Gadens Lawyers

Counsel for the Tenth Respondent: Mr P Newton

Solicitor for the Tenth Respondent: Kemp Strang

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 700 of 2012

BETWEEN:
GEORGE NINAN
First Applicant

MOLLY GEORGE
Second Applicant

AND:
ST GEORGE BANK LTD ABN 92 055 513 070
First Respondent

VALUER GENERAL
Second Respondent

GODINILAND DEVELOPMENTS PTY LTD ACN 100 701 148 AND RICHARD AH BOEY TAY
Third Respondent

DEBORAH ANDREWS
Fourth Respondent

COLIN DYMOND
Fifth Respondent

WANNAUNUP DEVELOPMENT NOMINEES PTY LTD ACN 008 853 807 AND PORT…

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: [2013] FCA 273
Decision Date

CaseChat Overview and Summary

The applicants, George Ninan and Molly George, sought to vary and set aside orders made in August 2012 concerning security for costs and, in the alternative, sought to dismiss proceedings against certain respondents. The applicants had been ordered to pay security in different amounts in respect of the costs of the second, fourth and fifth, sixth, seventh and eighth, ninth and tenth respondents. The proceedings were stayed as against those affected respondents until the relevant security for costs had been provided. The applicants did not provide the security in accordance with the orders and, by interlocutory applications filed in January and February 2013, each of the affected respondents now sought an order dismissing the proceedings against them individually. The respondents also sought costs. The applicants did not seek leave to appeal the orders made in August 2012 but, on or around 20 December 2012, filed an interlocutory application seeking to vary the security for costs orders. On 7 February 2013 the applicants filed an amended interlocutory application seeking inter alia to vary the orders dated 23 August 2012 concerning security for costs. In the alternative, the applicants sought an extension of time until 31 December 2013 to comply with the orders made on 23 August 2012 or a variation which would extend the time for compliance with the 23 August 2012 orders until a date six months after finalisation of the applicants’ then pending proceedings in the State Administrative Tribunal in Western Australia (SAT). The applicants also filed various written submissions, including a document described as “Essential Submission prior to the Hearing on 5 February 2013”, attached to which is a proposed amended originating application and statement of claim. The applicants have also filed other written submissions in respect of their amended interlocutory application, which also address the various interlocutory applications filed by the affected respondents seeking to have the proceedings dismissed. They include a document titled “Summary Information to narrow or settle the issues” dated 9 February 2013. The applicants’ most recent written submissions were filed on 25 March 2013 and were provided in three separate volumes totalling in excess of 300 pages. They were titled “Basis for Application for Varying the Order”. The applicants’ amended interlocutory application also contains an order seeking leave to amend the originating application and statement of claim. The Court dismissed the applicants’ amended interlocutory application seeking to vary the orders concerning security for costs. The applicants had not established either an appropriate or sufficient basis to vary the orders made on 23 August 2012. They had not identified any material change in their circumstances subsequent to 21 August 2012, when the various applications for security for costs were heard. Nor had they identified any relevant new evidence that was not previously available. The applicants’ evidence and submissions largely repeated the material placed before the Court previously. The applicants’ proposed amended pleadings did not comply with usual pleading requirements and it appeared that they would be liable to be struck out. They did not provide any support for the applicants’ application to vary the security for costs orders made in August 2012. The Court dismissed the applicants’ proceedings against the second, fourth, fifth, sixth, seventh, eighth, ninth and tenth respondents. The applicants did not dispute that they had failed to comply with the relevant orders made on 23 August 2012 concerning security for costs. The respondents generally relied upon the Court’s powers under s 56(4) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) and r 5.23(1)(b)(i) of the Federal Court Rules 2011. The Court was careful to see that orders for security for costs did not work injustice to parties against whom such orders were made, but if those parties did not comply with the orders and gave no evidence or explanation as to why they had not complied with them, they could not be heard to complain of injustice if, after a considerable length of time, and extensions of time, the ultimate sanction of dismissal was applied. It was incumbent upon parties in such circumstances to provide evidence of their position. The Court found that the applicants had had since 23 August 2012 to arrange the relevant security to be provided and had failed to do so over that seven month period. There was no reason to believe that they would be able to do so if they were given more time. The applicants had been on notice for some time that the proceedings could be dismissed if they did not comply with the security for costs orders. The Court was also of the view that the applicants’ proposed amended pleadings suffered from serious pleading deficiencies. The applicants had had an ample opportunity to comply with basic pleading requirements. They had failed to do so. The applicants’ proposed amended pleadings continued the form of a rambling narrative which singularly failed to comply with the relevant pleading requirements and was highly repetitious. The applicants had had an ample opportunity to comply with basic pleading requirements. They had failed to do so.

Orders