Ninan v St George Bank Ltd (No 2)

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.