Ollerenshaw v The Uniting Church in Australia Property Trust (NSW)

[2017] NSWSC 1637

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Ollerenshaw v The Uniting Church in Australia Property Trust (NSW) [2017] NSWSC 1637

Hearing dates:

13 July 2017

Date of orders:

28 November 2017

Decision date:

28 November 2017

Jurisdiction:

Common Law

Before:

Walton J

Decision:

The Court makes the following order and directions:

 

(1) The amended notice of motion is dismissed.

 (2) In the event that the parties agree as to orders for costs of the application, short minutes of order should be filed reflecting that agreement within 7 days of publication of this judgment. In the absence of agreement, the plaintiff shall file and serve a short submission in support of any application for costs within 14 days of publication of this judgment. The fifth defendant shall file any submissions in reply within a further 14 days of service of those submissions by the plaintiff. If a party wishes to have an oral hearing in relation to the question of costs of the application that contention should be incorporated in their submissions. Otherwise, the Court will determine any disputed question of costs on the papers.

Catchwords:

COSTS – security for costs – whether the plaintiff is ordinarily resident outside Australia – factors relevant to the exercise of discretion to order a security for costs order – whether the plaintiff is impecunious – whether the plaintiff’s circumstances would stultify proceedings – whether the proceedings was a matter of public importance – application dismissed

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1
Bell Wholesale Co Pty Ltd v Gates Export Corporation (No 2) (1984) 52 ALR 176
Corbett v Nguyen [2008] NSWSC 1265
Corby v Channel Seven Sydney Pty Limited [2008] NSWSC 245
Cornelius v Global Medical Solutions Australia Pty Ltd; Farag v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65
Cowell v Taylor (1885) 31 Ch D 34
Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; [2004] NSWSC 664
Green Camel Pty Ltd v Urban Ecological Systems Ltd [2017] NSWSC 362
Gujarat NRE Australia Pty Limited v Gary Alexander Williams [2006] NSWSC 992
Hastings v Hastings [2009] NSWCA 294
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744
Jazabas v Haddad [2008] NSWSC 593
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
Leyvand v Barasch (High Court of Justice, 15th February 2000 unreported; 2000 WL191256)
Li v State of New South Wales [2013] NSWCA 165
Logue v Hansen Technologies Ltd (2003) 125 FCR 590; [2003] FCA 81
Melville v Craig Nowlan & Associates Pty Ltd (2001) 54 NSWLR 82
Merribee Pastoral Industries v Australia and New Zealand Banking Group Ltd (1998) 193 CLR 502
Morris v Hanley [2000] NSWSC 957
Oshlack v Richmond River Council (1998) 193 CLR 72
Pearson v Naydler [1977] 1 WLR 899
Porzelack KG v Porzelak (UK) Ltd [1987] 1 WLR 420
Powell v Aymkone Pty Ltd [2005] NSWSC 1261
Smail v Burton [1975] VR 776 at 780
Soh v Commonwealth of Australia (2006) 231 ALR 425
Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114
Wollongong City Council v Legal Business Centre Pty Ltd [2012] NSWCA 245
Zakka v George Elias t/as Cadmus Lawyers [2012] NSWCA 277

Texts Cited:

F Stroud, Stroud’s Judicial Dictionary of Words and Phrases (5th ed, 1986)

Category:

Costs

Parties:

Angus Ollerenshaw (Plaintiff)
The Uniting Church in Australia Property Trust (First Defendant)
Ian Paterson (Second Defendant)
Adrian Nisbett (Third Defendant)
Craig Treloar (Fourth Defendant)
Timothy May (Fifth Defendant)

Representation:

Counsel:
E G Romaniuk SC with S J Maybury (Plaintiff)
K Eastman SC (First Defendant)
S Selbakumaran (Second Defendant)
S Gray (Fifth Defendant)

  Solicitors:
Edwards Michael Powell Lawyers (Plaintiff)
Clayton Utz (First and Fifth Defendants)
Makinson d’Apice Lawyers (Second Defendant)

File Number(s):

2016/00221305

Judgment

1. By an amended statement of claim filed 28 October 2016, Angus Ollerenshaw (“the plaintiff”) sought damages in personal injury and professional negligence proceedings against five defendants: the Uniting Church in Australia Property Trust (NSW), Dr Ian Paterson, Adrian Nisbett, Craig Treloar and Timothy May (“the principal proceedings”).

2. By an amended notice of motion filed 13 July 2017, Timothy May (“the fifth defendant”) sought a security for costs against the plaintiff pursuant to r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) (“the application”). The application was as follows:

1. Pursuant to r 42.21, the Plaintiff is to provide security for the Fifth Defendant’s costs by paying into Court such amount the Court thinks fit and in such a manner as the Court directs;

2. Until that security is provided, there will be a stay of the proceedings between the Plaintiff and the Fifth Defendant.

3. The security is to be provided within 28 days of Order 1 being made, on which date the matter is to be listed before the Court for consequential orders, or, in the event that he security has not been provided, an order for the dismissal of the proceedings under r 42.21(1).

4. Order that the plaintiff pay the fifth defendant’s costs of this notice of motion on an indemnity basis.

5. Such further or other order as the Court deems fit.

3. That application was predicated upon r 42.21(1)(a), namely, the plaintiff was “ordinarily resident outside Australia”.

4. The parties agreed that the application gave rise to two questions. First, a threshold question, namely, whether the plaintiff was ordinarily resident outside of Australia. Secondly, if the threshold question was satisfied, whether it was appropriate, in the exercise of the Court’s discretion, to grant the application.

5. The amount of security sought was not quantified. However, it was submitted for the fifth defendant during the hearing of the application, that the amount of costs which would be recoverable on an assessment (predicated upon the defendants succeeding), was an amount greater than $120,000 on a party/party basis. The plaintiff did not challenge the fifth defendant’s estimate.

Course of the Proceedings

6. When the matter was called before this Court on the 13 July 2017, the Court had before it applications for two motions. One of them was the application, the subject of this judgment, and the other consisted of an application by the plaintiff for a dispensation from the requirement to provide a signed evidentiary statement. It was submitted that the plaintiff was not in a position to give evidence, having regard to the plaintiff’s deterioration in mental health. That second motion was stood over pending advice of a medical nature as to the plaintiff’s treatment and his capacity to sign an evidentiary statement.

Relevant Principles

7. Rule 42.21(1)(a) of the UCPR is in the following terms:

(1) If, in any proceedings, it appears to the court on the application of a defendant:

(a) that a plaintiff is ordinarily resident outside Australia…

the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant's costs of the proceedings and that the proceedings be stayed until the security is given.

8. The principles applicable to the determination of the threshold question deriving from the sub-rule may be briefly stated.

9. The onus falls upon the applicant for security for costs to satisfy the threshold condition: Logue v Hansen Technologies Ltd (2003) 125 FCR 590; [2003] FCA 81 (“Logue”) at [19] and [30] (per Weinberg J); see also Cornelius v Global Medical Solutions Australia Pty Ltd; Farag v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65 at [17] (per Macfarlan JA) and [56]-[59] (Ward JA), Green Camel Pty Ltd v Urban Ecological Systems Ltd [2017] NSWSC 362 (“Green Camel”)at [20] (per Ward CJ at Eq); Wollongong City Council v Legal Business Centre Pty Ltd [2012] NSWCA 245at [29] (per Beazley JA, with whom Meagher and Barrett JJA agreed). The determination of that question relates to the status of the plaintiff at the time of the motion: Logue at [30]. That question is one of fact and degree: Logue at [18].

10. The purpose of ordering an security for costs “against an applicant ordinarily resident outside Australia is to create a fund within this country, against which a successful respondent may enforce a judgment for costs thereby avoiding the risks, uncertainties and delays associated with attempts to enforce such a judgment in the applicant’s claimed country of residence” which is overseas: Logue at [18].

11. In Logue, Weinberg J reviewed the authorities as to the meaning of the expressions “resident” and “ordinarily resident”. His Honour observed (at [20]-[22]):

[20] The meaning of the expression “ordinarily resident out of the jurisdiction”, which is the English formulation, is discussed in some detail in Vol 1 of the White Book Service 2001 at par 25.13.2. In Levene v Inland Revenue Commissioners [1928] AC 217 Lord Warrington of Clyffe observed at 232 that “ordinarily resident” had no technical or special meaning. In particular, it was impossible to restrict its connotation to its duration. For the purpose of determining whether under the Income Tax Act a person is “ordinarily resident” in the United Kingdom in any given year, “the usual ordering of his life must be judged by what he does in that and preceding years …”.

[21] In Inland Revenue Commissioners v Lysaght [1928] AC 234 Viscount Sumner, said at 243, that the word “ordinarily” could be contrasted with expressions such as “usually”, or “most of the time”, or “exclusively”. Ordinarily could also be contrasted, on the other hand, with expressions such as “occasionally”, or “exceptionally”, or “now and then”. His Lordship suggested that the converse to “ordinarily” is “extraordinarily” and that part of the regular order of a man’s life, adopted voluntarily, and for settled purposes, is not “extraordinary”.

[22] In R v Barnet London Borough Council, Ex parte Nilish Shah [1983] 2 AC 309 it was held by the House of Lords that, in the context of the Education Act 1962 (UK) and the Education Act 1980 (UK), the term “ordinarily resident” should be construed according to its ordinary and natural meaning. Lord Scarman, with whom the other members of the House of Lords agreed, referred to Levene and Lysaght with approval and observed at 343 that the question whether a person is “ordinarily resident” in a place is to be resolved in favour of that conclusion if he habitually and normally resides lawfully in such place from choice and for a settled purpose, apart from temporary or occasional absences, even if his permanent residence or “real home” is elsewhere. His Lordship emphasised at 344 that there must be a degree of settled purpose. That does not mean that the “propositus” intends to stay where he is indefinitely. Indeed his purpose, while “settled”, may be for a limited period. However, the purpose of living where one does must have a sufficient degree of continuity to be properly described as “settled”.

12. Further, Weinberg J noted that English authorities had suggested that it may be possible for a person to have two ordinary residences, one within for the purposes of the present case, the (Australian) jurisdiction and one outside. His Honour stated that, in such a case, the Court had power to order security for costs, but that that person’s connection with the jurisdiction, in which the proceedings were commenced, would be relevant to the exercise of the discretion. His Honour stated: “the closer the connection, the greater the relevance. If the claimant has an established home, and is resident, though not ‘ordinarily resident’ in that country, security will rarely be ordered” (at [24]). Weinberg J provided some examples as to the meaning of ordinarily resident from F. Stroud, Stroud’s Judicial Dictionary of Words and Phrases (5th ed, 1986) as follows (at [25]):

• a resident who expressed an intention in certain circumstances to leave the country at the conclusion of a case could not on such a provisional decision be said to be “ordinarily resident” out of the jurisdiction: Appah v Monseu [1967] 1 WLR 893;

• where two persons, both aged 17, came to England, the first to settle and further his education, the second to further his education and then leave, the former was held by the Queen’s Bench Division to be “ordinarily resident” but not the latter: R v Barnet London Borough Council, ex parte Nilish Shah [1981] 2 WLR 86. This case subsequently found its way to the House of Lords, along with several other similar cases, in R v Barnet London Borough Council, Ex parte Nilish Shah [1983] 2 AC 309;…

13. At [26], his Honour observed:

What these cases, and others like them seem to establish is that the test for ordinary residence depends to a significant degree upon the state of mind of the person whose residence is in question. The language used in a number of the cases focuses upon whether the person habitually and normally resides in the jurisdiction, and does so for a settled purpose. 

14. Some of the factors which have been taken into account when considering whether an applicant is “ordinarily resident” have included citizenship, country of birth, education, family connections, children, school of children, established home, place of work, and assets within the jurisdiction: see Logue at [31]; Leyvand v Barasch (High Court of Justice, 15th February 2000 unreported; 2000 WL191256) at [5] (per Lightman J); Corbett v Nguyen [2008] NSWSC 1265 at [16]-[21] (per White J); Corby v Channel Seven Sydney Pty Limited [2008] NSWSC 245 (“Corby v Channel Seven”) at [24]-[28] (per McCallum J); Gujarat NRE Australia Pty Limited v Gary Alexander Williams [2006] NSWSC 992 at [30] (per Einstein J).

15. Where the threshold question was satisfied, an order for security for costs involved the exercise of discretion by the Court: Green Camel at [22]; Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 (“Idoport v NAB”) at [59].

16. It is well settled that that discretion is unfettered and should be exercised having regard to all the circumstances of the case without any predisposition in favour of the award of security: KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 (“KP Cable Investments”) at 196 (per Beazley J). Notwithstanding the “broad unfettered discretion”, Beazley J set out the “established guidelines” with respect to a security for costs application: KP Cable Investments at 196-198. These discretionary considerations are now reflected, by and large, in the current provisions of r 42.21(1A) of the UCPR (see Green Camel at [23]). However, Weinberg J in Logue (at [38]) considered that a party who is not ordinarily resident in this country and had no assets within the jurisdiction is normally ordered to provide security for costs. In any event those factors are matters of great weight in the exercise of discretion of the Court in that respect.

Background

17. By way of background, the plaintiff is a 26 year old male who was born in Sydney. The plaintiff has two younger siblings: a sister and brother. He attended school in Sydney before the family moved to the Gold Coast in 2005. Following the move, the plaintiff attended Logan Hospital for treatment. The plaintiff received various medical treatments between 2005 and 2009. Further treatment was received after his attendance at the Royal Commission into Institutional Responses into Child Sexual Abuse (“the Royal Commission”) in February 2015.

18. The fifth defendant was represented by counsel, Mr S Gray and his instructing solicitor, Dr Ashley Tsacalos from Clayton Utz. Dr Tsacalos, is the solicitor for the first defendant, whom also acts for the fifth defendant. The plaintiff was represented by senior counsel, Mr E G Romaniuk and Mr S J Maybury of counsel. His instructing solicitor was Ms Lisa Powell from Edwards Michael Powell Lawyers.

Evidence in the Proceedings

19. The fifth defendant relied upon a bundle of medical documents dated February 2015, the affidavits of Dr Tsacalos sworn on 17 May 2017 and 5 July 2017, respectively, and the examination of Dr Tsacalos. The plaintiff relied upon two letters dated 5 May 2016 and 1 February 2017 (which will be referred to as “5 May letter” and “1 February letter”, respectively), and affidavits of Ms Powell sworn on 25 May 2017 and 10 July 2017 (“25 May affidavit” and “10 July affidavit”, respectively or collectively as “the Ms Powell affidavits”). Neither the applicant nor the fifth defendant gave evidence on the motion.

20. There was a great deal of attention placed upon the whereabouts of the plaintiff from the period of 2009 to 2015. The information as to his whereabouts, is to be found in three discrete layers which are not entirely consistent with each other.

21. First, counsel for the fifth defendant attached to his written submissions a document (“the written submissions attachment”), summarising the whereabouts of the plaintiff between the period of November 2008 and August 2016. The sources for the written submissions attachment resulted from a combination of affidavits tendered before this Court in these proceedings by the fifth defendant and plaintiff, and a Royal Commission Statement. That document described the various locations within Australia, Canada, New Zealand and Japan and the approximate length of time with which the plaintiff had spent in those countries between those dates. Those details can be summarised, with some observations by the Court representing adjustments as appropriate, below:

1. The plaintiff travelled to Canada between 2010 and early 2011. He was then recorded as being in Australia between June and October 2011.

2. The plaintiff resided in Canada between November 2011 and April 2012. He then returned to Australia.

3. The plaintiff spent a period of time in Australia and New Zealand, prior to September 2012, before again travelling to Canada. He then returned to Australia in November 2012.

4. From June to September 2013, the plaintiff travelled again to New Zealand and then returned to Australia.

5. In early 2013, the plaintiff also spent three months in Japan.

6. Between October and December 2013, the plaintiff was located in Canada. It would appear there was a brief return to Australia before the plaintiff was again located in Canada between January and October 2014 (the record does not explain the overlap between the respective entries for October 2014).

7. The plaintiff was located in Australia between October and December 2014, before travelling to Canada again in December 2014.

8. The plaintiff was also located in Australia from April 2015 to August 2016 (the date at which this annexure concludes its record).

22. Despite the detail collated by the fifth defendant, there is ambiguity as to the exact time spent in some of these locations. Unresolved by the above summary is the exact period of time in which the plaintiff travelled to Canada in 2010, New Zealand in 2012 and again to Canada both at the end of 2012 and during 2014.

23. Second, in the affidavit of Dr Tsacalos sworn 5 July 2017 there were further documents exhibited to that affidavit. The affidavit detailed documents obtained from the Department of Immigration and Border Protection. Twelve “incoming” passenger cards from the period between 1 January 2009 and 14 June 2017 were found in which the answer to the question “do you intend to live in Australia for the next 12 months” was marked “no” on nine occasions. Of those incoming passenger cards three of them recorded the plaintiff travelling outside Australia since 2015. In addition to the passenger cards a document titled “movement details” followed, in which the departure and arrival dates from Australia of the plaintiff were recorded between the period of 1 January 2009 and 14 June 2017. The document detailed arrival dates in Australia as follows: 5 March 2016, 4 August 2015, 24 February 2015, 11 November 2014, 13 September 2013, 16 August 2013, 19 July 2013, 3 March 2013, 6 November 2012, 5 May 2012, 11 February 2011, 3 August 2010. According to that document the longest periods for which the plaintiff was overseas was for 11 months back in 2014 and then 6 months in 2012. Two anomalies should be mentioned, in this respect. First, the period of 11 months for 2014 referred to within record could not seem to accord with the summary record in [21(6)] above. Secondly, there was an unexplained entry of the plaintiff undertaking a 3 month overseas trip ending 5 March 2016. This contrasts to there was common ground in the proceedings that the plaintiff was in Australia continuously from early 2015 to the date of the hearing of this matter. This difference remains unexplained.

22. Third, in the affidavit of Dr Tsacalos sworn 17 May 2017, it was attested that the plaintiff gave evidence via video link on 5 March 2015 at the Royal Commission (a transcript of that evidence was provided to this Court as an annexure to Dr Tsacalos’ affidavit). The location from which the plaintiff gave evidence via video link appeared to be in Australia as there had been medical notes from an Australian Hospital that were dated 28 February 2015. It was further attested that, the plaintiff was subsequently required to return to Australia to give evidence before the Royal Commission. As a consequence, the plaintiff received an ex-gratia payment from the first defendant to cover his expenses in returning to Australia, in July 2015. In both late 2016 and early 2017 communications between the solicitor for the plaintiff and Dr Tsacalos disclosed that the plaintiff resided in Bermagui, five hours outside Sydney and that he would seek employment in Canada for the 2017 winter ski season, which fell between the period of 3 March 2017 and September 2017.

23. The three layers of information, outlined above, show that prior to 2014, the plaintiff spent a significant amount of time in Australia. In 2014, the plaintiff travelled overseas and spent close to a year overseas in Canada, before returning to Australia in 2015. The fifth defendant contended that the plaintiff returned in March or April 2015. There was nothing to verify this, other than an affidavit by the fifth defendant’s solicitor. However, the medical notes which were relied upon by the fifth defendant (dated 28 February 2015), suggested that the plaintiff was, in fact, in Australia from February 2015. In any event, the evidence is clear that, the plaintiff returned to Australia in early 2015. As mentioned, the common position of the parties was that the plaintiff remained in Australia for the period thereafter until the date of this application, on 13 July 2017 (evidence of the circumstances of the applicant as at the date of the application was also provided in Ms Powell’s affidavit which will be discussed shortly).

24. In cross-examination, Dr Tsacalos gave evidence that he acted as a solicitor for both the first and fifth defendants, as to the relationship between the first and fifth defendants and the purpose for seeking a security for costs order. Dr Tsacalos indicated that the fifth defendant “was entitled to make an application for security for costs for the purposes of protecting the costs of those persons or the Church who funds his defence of this claim”. The following is an extract from his cross-examination:

Q. You knew as at February 2017, that Mr May did not need access to an identifiable pool of money secured by a security for costs order to recoup his own personal costs; you knew that, didn't you?

A. Yes, because I knew from the outset that Mr May's legal fees were not being paid by Mr May…

Q. So are you saying that Mr May's position was that he effectively wished to protect the position of the Church in respect of the costs that they were funding him along the way?

A. Well Mr May takes his ‑ obviously this is a very serious issue for Mr May and his costs are being borne by others and given that Mr May strenuously denies the allegations and is of the view that he will ultimately be successful, he feels obliged to protect the costs position of those who fund his legal fees…

Q. You have mentioned a few times that Mr May denies the allegations?

A. Yes, strenuously denies it.

Q. Strenuously denies them. Isn't it the case that the object of the security for costs application is to stop the proceedings against Mr May, to have them stayed?

A. No. That might be a consequence but that's certainly not the objective. The NSW Health medical documents dated 28 February 2015 which were tendered by the fifth defendant as an exhibit contained an MH Adult Triage from Concord Repatriation General Hospital, a Mental Health Assessment from Concord Centre for Medical Health and Progress/Clinical notes. In the MH Adult Triage document it was recorded as an addendum the plaintiff “cannot be in hospital because of his permanent residency application (in Canada)”, in the Mental Health Assessment document it was recorded by the medical officer the plaintiff “usually lives in Canada...came back to appear in Royal Commission” and “lives Canada, works as a snow groomer” and “living, usually in Canada”.

27. In the Ms Powell affidavits, Ms Powell revealed that the plaintiff currently resided in Australia and the plaintiff’s name appeared in the Residential Tenancy Agreement for a property leased by his father in East Jindabyne, NSW, under the heading ”other people who will ordinarily live at the premises may be listed here”. It was detailed that the plaintiff’s work visa to Canada, dated 4 March 2016, stated: “must seek entry to Canada to obtain your work permit by 03/03/2017”. On Ms Powell’s evidence the visa expired on 3 March 2017 by reason of the plaintiff’s “impecunious status” which rendered him “unable to return to Canada and [as a result he continued to reside] [in Australia.”

28. With regard to the plaintiff’s financial position, Ms Powell’s 10 July affidavit annexed records which provided bank statements, a payment from the Uniting Church and income statements. The bank statements disclosed a closing negative balance of between $490 and $570 each month in the period of early 2017 for his credit card, approximately $450 in a savings account in February 2017 and a personal loan of approximately $21,000. Ms Powell (in that affidavit) was further instructed that the plaintiff is in receipt of a disability support pension of approximately $900 per fortnight.

29. In an evidentiary statement of the plaintiff’s father, dated 6 July 2017 (annexed to the same affidavit), the plaintiff’s father provided background to the circumstances of his son and his current financial position in which he states “the emotional and financial stress is significant… I have a personal loan… maxed out credit cards… I pay... [the phone bill and credit card bill] for [the plaintiff] and regularly pay for rent, food, medical expenses etc…”. He also stated: “I do not own property, I live in rental accommodation and my income is currently steady but I do not have assets or savings”.

30. In the 5 May letter from Ms Powell addressed to a Dr Selwyn Smith, a general practitioner, Ms Powell requested the opinion of Dr Smith as to the “difficulties of the plaintiff which were most likely attributable to his sexual abuse” and an “opinion of the plaintiff in generality”. The letter also detailed a brief history of events of the plaintiff from when he was born on 22 September 1991 to 21 April 2015, the date at which the plaintiff made a further police statement.

31. Some items of note, that were detailed in the 5 May letter, included:

1. The plaintiff attended Knox Grammar School where his father was employed in or around 1998. The family had lived on the grounds of the school by reason of his father’s employment.

2. The plaintiff commenced schooling at Knox Grammar in 2002

3. In 2003, the plaintiff was recorded to be a victim of sexual abuse and demonstrated behavioural changes

4. In 2005, the family moved to the Gold Coast and the plaintiff attended hospital in the Gold Coast for treatment in 2006 and 2007.

5. In subsequent years the plaintiff undertook intermittent treatment; this included treatment as an in-patient at Hornsby Ku-Ring-Gai Hospital in late 2008 and again in early 2009, then at Wesley, St John of God and Concord Hospitals in 2009.

6. The plaintiff returned to Australia from Canada in February 2015 to give evidence at the Royal Commission in Sydney.

32. In the 1 February letter (which was addressed from Dr Tsacalos to Ms Powell), Dr Tsacalos wrote that he would make an application for security for costs and that “as a named defendant, [the fifth defendant], would be entitled to make such an application in his own right”, upon an indication that allegations would not be withdrawn. The letter further recorded that “instructions in relation to the plaintiff’s action against the fifth defendant come from [the fifth defendant] himself. Should [the fifth defendant] wish to pursue or assert his legal rights, including making any security for costs application, then he is entitled to do so.”

Threshold Question

Fifth Defendant’s Submissions

33. The fifth defendant accepted that the plaintiff is currently physically located in Australia. However, it was submitted a security of costs order was appropriate for the following reasons:

1. The plaintiff had a transient lifestyle and should be classified as ordinarily residing outside Australia at the time of the hearing of this motion. The written submissions attachment indicated the plaintiff’s transient lifestyle occurred predominantly outside of Australia, namely, various locations in Canada, New Zealand and Japan.

2. The intention of the plaintiff was to remain in Australia for the purpose of attending the Royal Commission and because of his financial limitation.

3. Further, the state of mind of the plaintiff was such that he had considered himself as living in Canada. In that respect, the fifth defendant relied upon the affidavits of Dr Tsacalos and medical documents for this proposition. The plaintiff pointed to descriptions within the medical notes such as “usually lives in Canada... came back to appear in Royal Commission”, “lives [in] Canada, works as a snow groomer” and “living, usually in Canada” which were recorded by a medical practitioner.

4. The culmination of a state of mind pertaining to residency in Canada coupled with an expressed intention to remain in Australia for the Royal Commission alone, demonstrated that he was not settled in Australia for a purpose.

Plaintiff’s Submissions

34. The plaintiff submitted that a security for costs order should not be granted for the following reasons:

1. The definition of “ordinarily resident” provides scope that a person can also reside in other places from time to time, whilst satisfying the test of being ordinarily resident in Australia.

2. The plaintiff had over the period of time (November 2008 and August 2016), continuously returned to Australia despite working at times overseas. It was suggested that the time spent in Australia and the other countries was roughly equal.

3. There is not one other place outside of Australia that the fifth defendant could nominate as where the plaintiff presently resides or ordinarily resides.

4. The period with which the plaintiff worked overseas was merely a historical place of work. The plaintiff presently resided in Australia for two years continuously since February 2015.

5. Although the plaintiff may have expressed a desire to live somewhere else that does not permit a finding that he is ordinarily resident outside Australia. Unlike the circumstances of the cases relied upon by the fifth defendant, there is no evidence the plaintiff in this matter has well-established connections or property outside of Australia. Further, there has been no capacity in the plaintiff to transfer to another country in conformity with any such intention (if one should be found).

6. The positive intention of the fifth defendant in seeking a security for costs order application by the fifth defendant was to stultify proceedings.

Conclusion: Threshold Question

35. Upon the evidence before this Court, and having regard to the aforementioned principles, I have come to the conclusion that the fifth defendant has failed to demonstrate that the plaintiff is ordinarily resident outside of Australia pursuant to r 42.21(1)(a) for the following reasons:

1. A person will be ordinarily resident in a place if he habitually and normally resides lawfully in such a place and does so for a settled purpose apart from temporary and occasional absences. It is not necessary to show settled purpose for an indefinite period but there must be a sufficient degree of continuity to be properly described as settled.

2. The plaintiff clearly has significant ties with Australia. He was born, educated and raised in Australia. His parents and siblings also reside in Australia. There is an available inference that the plaintiff was and remains an Australian citizen (the status of the plaintiff as an Australia citizen can be further deduced from the subpoena material relied upon by the fifth defendant, in which the plaintiff’s passenger cards contained the written response “Australia” for the box that requested the completion of “national[ity] as shown on passport”). These are indications of a settled purpose to reside in Australia.

3. The relevant time period to make an assessment as to the plaintiff’s ordinary residence is that at the time of the application: see Logue at [30] (per Weinberg J) and Corby v Channel Seven at [25] (per McCallum J). At the time of the filing of the motion, the plaintiff had been residing continuously in Australia as the parties submitted since early 2015, with a possible short trip to Canada in early 2016.

4. True it is that the plaintiff had appeared to lead a transient lifestyle between the period of 2010 and February 2015, residing in various countries from time to time, as submitted by the fifth defendant (it is to be noted there were discrepancies for the movement of the plaintiff in and out of Australia, particularly between 2012 and 2013, between the documents which were obtained from the Department of Immigration and Border Protection provided as an exhibit to the affidavit of Dr Tsacalos sworn 5 July 2017 and the written submissions attachment, both of which was relied upon by the fifth defendant), however, it is during that period, namely, between 2010 and February 2015, in which the plaintiff had consistently returned to Australia. The plaintiff appears to have spent on average, 9 months per year in Australia between 2010 and 2013. The exception was 2014 but travel in that year was unusual and represented effectively the end of the period of yearly travel and periods of residence in overseas countries by the plaintiff (with the possible exception of a short period of travel in 2016).

5. The majority of the time in which the plaintiff did travel, coincided with winter seasons in Canada, US and New Zealand indicating his travel coincided with work commitments. This is furthered by evidence disclosing his work as a snow groomer and the like. This evidence substantially aligned with the submission of the plaintiff that substantial portions of the travel concerned his “historical place of work”.

6. There is very little evidence of a settled purpose to live outside Australia and certainly none since 2015. Counsel for the fifth defendant submitted that the plaintiff had disclosed an intention to return to Canada and to remain in Australia only for the duration of the Royal Commission. Substantial reliance was placed upon various comments recorded as being made by the Plaintiff within the medical documents (the intention of the plaintiff was similarly recorded in both Dr Tsacalos’ affidavits). Although the medical documents record the plaintiff as saying “usually lives in Canada... came back to appear in Royal Commission” and “living, usually in Canada” there are considerable difficulties in that evidence establishing the plaintiff had a settled purpose to reside outside of Australia or even an intention to live in Australia only for the duration of the Royal Commission.

7. Even if the statements may be taken as an expression of an intention to live in Canada, the statements are at best a representation of a provisional decision to be ordinarily out of the jurisdiction (see the example provided in Logue at [12]). The plaintiff used the word “usually” which is equivocal with respect to future intentions for residence. The medical notes do not state, as such, that the plaintiff had no intention to reside in Australia only for the period of the Royal Commission. The words recorded are also equivocal, in that respect, as they may refer to past intentions or preferences or future ones or both.

8. Further, it would be a strained reading of the evidence to suggest that a report (in the form of short hand notes of a treating doctor for a psychological condition in a hospital) taken on a particular date, namely, 28 February 2015 over two years before the application encompassed a settled intention at the requisite time, two years after the date of the report.

9. The evidence indicated the plaintiff has a settled purpose in Australia. The evidence points to the plaintiff’s lack of a financial capacity to travel overseas presently, even at the level he had in the past. There is no evidence before this Court as to a valid visa or approval to reside in any country than Australia. In any event, the absence of a valid visa or approval, and a failure to renew an available visa might be indicative of the plaintiff had no settled purpose to reside in any country other than in Australia. Further, in a lease document, the plaintiff has been noted as a tenant at a property leased by his father in East Jindabyne, NSW. This lease document, together with the plaintiff’s reliance upon his father, again represents a connection to residence in Australia.

36. Accordingly, the power to order security for costs is not enlivened.

Discretionary Factors

37. For completeness, and in the likelihood the fifth defendant was found to have satisfied the threshold question, the following balance of discretionary factors, in any event, would result in the refusal of a security for costs order.

Jurisdiction/Enforcement

38. Pursuant to r 42.21(1A)(n), the ease and convenience or otherwise of enforcing a New South Wales court judgment or order in the country of a non-resident plaintiff is a discretionary factor relied upon by the fifth defendant. Putting aside my findings as to the ordinary residence of the plaintiff being in Australia (given the manner in which these discretionary considerations are to be addressed), the plaintiff has demonstrated he is a resident plaintiff in Australia. He is an Australian citizen; he has previously consistently returned to Australia and has remained in Australia for an extended period of time, up to and including the bringing of this application and its defence. The transient nature of the plaintiff prior to 2015 had at its epicentre, Australia. This conclusion is furthered by the plaintiff’s current financial circumstance limiting any travel overseas, if that is, in fact, currently intended by the plaintiff.

39. The fact that the fifth defendant cannot identify a jurisdiction for this purpose is most likely a product of the fact that the plaintiff spent a preponderance of his time in Australia. In fact, the absence of the identification of another jurisdiction by the fifth defendant adds greater weight to the classification of the plaintiff as ordinarily resident in Australia.

Prospects of Success

40. The Court is required to consider the extent to which the plaintiff's claim is made in good faith and appears to be reasonably arguable: r 42.21(1A)(a) and (b): KP Cable Investments at 197. If the plaintiff’s claim appears reasonably arguable it is not appropriate to attempt a more detailed assessment of the prospects of success: Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; [2004] NSWSC 664 at [37] (per Austin J).

41. In this matter, it was conceded by the fifth defendant that the claim had reasonable prospects of success. Further there was no issue as to the plaintiff’s claim being made in good faith. It follows that the prospects of success weights as a discretionary factor in favour of the plaintiff.

Impecuniosity of the Plaintiff

42. It was submitted by the plaintiff that, pursuant to r 42.21(1A)(c), the plaintiff was impecunious. The term impecunious also appears in r 42.21(1B). Rule 42.21(1B) states as follows:

If the plaintiff is a natural person, an order for security for costs cannot be made merely on account of his or her impecuniosity.

That rule is derived from the principle that “a natural person who sues will not be ordered to give security for costs, however poor, is ancient and well established”: Pearson v Naydler [1977] 1 WLR 899 at 902 and that poverty “is no bar to a litigant”: Cowell v Taylor (1885) 31 Ch D 34 at 38; Oshlack v Richmond River Council (1998) 193 CLR 72. An impecunious plaintiff is thus someone who is impoverished: see Melville v Craig Nowlan & Associates Pty Ltd (2002) 54 NSWLR 82; NSWCA 32 at [21] (in that matter there was no contention that the plaintiff was impecunious).

43. The evidence regarding this factor was limited and not entirely conclusive.

44. The plaintiff in its written submissions referred to an unsigned Evidentiary Statement which was an annexure to the affidavit of Dr Tsacalos sworn 17 May 2017 and the Statement of Particulars, in which the plaintiff’s case is that his injuries and disabilities have rendered him severely functionally affected, the consequence of which is that the plaintiff does not have employment and is not expected to be employed in the immediate future. He had to borrow money on multiple occasions from his father. In an annexure to the affidavit of Ms Powell dated 10 July 2017, the plaintiff was described to be in a very limited financial position. The plaintiff had in his bank account an inconsistent amount of savings. He has a personal loan of approximately $21,000 that is unpaid, a credit card with a carry-over balance each month, and has no net assets.

45. However, reliant upon the Ms Powell affidavits the plaintiff is also in receipt of a disability support pension of approximately $900 per fortnight. In a statement from his father, the plaintiff’s accommodation and living costs was covered by his father, who upon that statement also appeared to be in a limited financial position.

46. The submissions by the fifth defendant provide no further aid in this matter. It was eventually submitted that they were unaware of whether or not the plaintiff was impecunious or not.

47. Clearly, the plaintiff is in straitened financial circumstances and, in the absence of his father’s assistance, he would be impoverished. I am inclined to the view the plaintiff should not be found in the circumstances to be impecunious, although I accept the conclusion is borderline. In any event, r 42.21(1B) provides that an order for security for costs cannot be made merely on account of a plaintiff’s impecuniosity, where the plaintiff is a natural person and I note further the opinion expressed by Heydon J in Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 (“Jeffrey v SST Consulting”) (at [91]) that mere impecuniosity is not an absolute barrier to the ordering of security for costs against a natural person. The overriding principle of access to justice must be considered.

Stultification of Proceedings

48. Another relevant consideration is whether the making of the order would unduly stultify the plaintiff’s ability to pursue the proceedings. The onus of establishing that the making of a security for costs order would unduly stultify the plaintiff's ability to pursue proceedings rests on the party asserting it: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 at [4] and Li v State of New South Wales [2013] NSWCA 165 at [45]. The onus falls, therefore, upon the plaintiff.

49. To the extent that a party asserts that an order for security be provided would stultify the proceedings, he must satisfy the Court that those who stand behind him or stand to benefit from any success in the proceedings are unable to provide security for costs: Idoport v NAB at [66]; Bell Wholesale Co Pty Ltd v Gates Export Corporation (No 2) (1984) 52 ALR 176 at 179. In other words, a proceeding cannot be regarded as stultified unless those who stand behind the impecunious plaintiff are unable (not unwilling) to provide the requisite security for costs: Hastings v Hastings [2009] NSWCA 294 at [14] (per Macfarlan JA).

50. Courts have appeared to be reticent to order security for costs where its effect would be to shut out a plaintiff from proceeding with a claim that is bona fide and not obviously frivolous or vexatious: Porzelack KG v Porzelak (UK) Ltd [1987] 1 WLR 420 at 426. In Powell v Aymkone Pty Ltd [2005] NSWSC 1261 at [11]-[12] (as per Young CJ in Eq) at [12], it was found that one of the matters which guide the Court in the exercise of its discretion is that it should not stultify litigation by shutting out valid claims merely on the ground of the poverty of the plaintiff. The Court must have a concern to achieving a balance between ensuring that adequate and fair protection is provided to the defendant, as well as avoiding injustice to an impecunious plaintiff by unnecessarily shutting it out or prejudicing it in the conduct of the proceedings: Idoport v NAB at [47].

51. Having regard to the discussion of the plaintiff’s financial position under the heading of impecuniosity two conclusions may be readily reached:

1. The plaintiff’s financial limitations are such that he would not have the capacity to meet his own costs, let alone the defendants' costs if the latter were successful at trial. A security for costs order would effectively stay the proceedings indefinitely as against the fifth defendant.

2. If the plaintiff’s father is to be treated as a person “standing behind the plaintiff” as contemplated in Idoport, in my view, the conclusion should be reached that he is unable to provide the requisite security for costs, thereby nullifying this consideration as one in favour of the application.

52. As to the second consideration it must be noted that despite the financial aid of the plaintiff’s father, the father is himself also in a limited financial position and would be unable to aid the plaintiff in this matter. The amount of security of costs of a “greater than $120,000” sought, or even a much smaller amount would be an amount that far exceeds the current financial ability of the plaintiff and his father.

53. In my view, the granting of an order for security for costs would stultify the proceeding and thus is a strong discretionary factor against the awarding of the same.

54. It is unnecessary for me, in these circumstances, to reach a conclusion as to how the contribution of the first defendant to the fifth defendant’s legal costs may contribute to this conclusion, although this factor is one which might, in appropriate circumstances, go to the broader balancing of discretionary factors in the interests of justice.

Delay

55. A delay in the bringing of an application for security is a factor in the exercise of the discretion: Idoport v NAB at [68]. Delay will weigh less significantly if the hearing is not imminent or there has been some forewarning or foreshadowing of an application. It has been found that the longer the delay, and the greater the costs the plaintiff has been allowed to incur, the less likely an order will be made: Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114.

56. It was submitted by the plaintiff that the bringing of this application has been delayed and that the preparation for this application, namely, the necessary provision of an evidentiary statement from the plaintiff, has caused great distress to the plaintiff. However, I agree with the submissions of the fifth defendant that there was no evidence as to any prejudice suffered by the plaintiff as a result of delay. That distress was referred to in limited detail in the evidence of Ms Powell. Further, there was no evidence as to how that distress had any effect upon this application.

Public Importance

57. Public importance pursuant to r 42.21(1A)(g) is a relevant discretionary factor where there is a curial determination on an area of law which may affect matters of public importance: see Jazabas v Haddad [2008] NSWSC 593 at [49] (per Harrison AsJ). Further, public importance may arise where a determination would benefit a wider group, other than that of the plaintiff, or a claim was brought to pursue, uphold or maintain an interest common to other members of the community: Smail v Burton [1975] VR 776 at 780 (per Gillard J); Merribee Pastoral Industries v Australia and New Zealand Banking Group Ltd (1998) 193 CLR 502 at [31]; Soh v Commonwealth of Australia (2006) 231 ALR 425 at [26].

58. The plaintiff submitted that security for costs should not be ordered because the claim was a matter of significant public importance. That submission was predicated upon the basis that the claim was demonstrative of systemic abuse by the Uniting Church of Australia. It appears to me that there is insufficient basis, on a limited argument and the evidence before the Court, to establish this contention for the purposes of r 42.21(1A)(g).

59. The case does not otherwise fall within the aforementioned principles as there is no evidence that a determination would benefit a wider group or pertain to a curial determination on a particular area of law. On the limited evidence before the Court, I do not consider this to be a discretionary factor in favour of the plaintiff. In coming to this conclusion I should not be taken, however, as accepting that the circumstances relied upon by the plaintiff could not, in an appropriate case, represent a relevant discretionary factor in favour of a plaintiff.

Conclusion

60. For those reasons, the plaintiff does not fall within the scope of r 42.21(1)(a) and the application for security for costs by the fifth defendant must therefore be refused. In the event the circumstances were such that the threshold question was enlivened, I would, for the reasons given above, refuse to exercise of my discretion to order the plaintiff to provide security for the fifth defendant’s costs in these proceedings. Directions will be made for the disposition of any issues as to costs of the application.

ORDER AND DIRECTIONS

61. I make the following order and directions:

1. The amended notice of motion is dismissed.

2. In the event that the parties agree as to orders for costs of the application, short minutes of order should be filed reflecting that agreement within 7 days of publication of this judgment. In the absence of agreement, the plaintiff shall file and serve a short submission in support of any application for costs within 14 days of publication of this judgment. The fifth defendant shall file any submissions in reply within a further 14 days of service of those submissions by the plaintiff. If a party wishes to have an oral hearing in relation to the question of costs of the application that contention should be incorporated in their submissions. Otherwise, the Court will determine any disputed question of costs on the papers.

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Amendments

23 May 2018 - [12] and [16] - typographical error amended.

01 May 2018 - Publication restriction lifted.