Orr v Lusute Pty Ltd

[1987] FCA 157

Re: DAVID MURRAY ORR and LUSUTE PTY. LIMITED (Cross-Claimant)
And: LUSUTE PTY. LIMITED AND ORS. and DAVID MURRAY ORR AND ANOR
(Cross-Respondents)
No. G3 of 1984
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.

CATCHWORDS

Practice and Procedure - security for costs - application made on ground of applicant's impecuniosity - applicant within the jurisdiction and at all times impecunious - applicant not suing for the benefit of some other person - Court's general discretion to order security pursuant to its inherent or implied jurisdiction - delay in making application.

Federal Court of Australia Act 1976, s. 56.

Federal Court Rules, Order 28, rule 3(1)(b).

HEARING

SYDNEY

#DATE 10:2:1987

Counsel for the Applicant: Mr. M.P. Sumner-Potts

Solicitors for the Applicant: Palmer Jourdain Noss & Howitt of Auburn by their city agents, P.W. Smyth King & Sons of Sydney

Counsel for the First Respondent: Miss M.J. Beazley

Solicitors for the First Respondent: Michael C. Marney & Co. of Caringbah until 3 February 1987 when ceased to act. The First Respondent then retained R.J. Benjamin & Co. of South Hurstville

Counsel for the Second Respondent: Mr. M.J. Meagher

Solicitors for the Second Respondent: Colin Biggers & Paisley of Sydney

No appearance for the Third Respondent

ORDER

The application that the applicant provide security for the first respondent's costs is dismissed.

The first respondent pay the costs of the application.

(Note: Orders were also made in relation to certain interrogatories and directions given for the future progress of the matter).

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The matters immediately in question are three. They concern an application by the first respondent that the applicant provide security for the first respondent's costs; an application for further and better answers to interrogatories asked of the first respondent by the applicant; and the future management of the case. I deal first with the application for security.

1. In order that that matter may be dealt with it is necessary to understand something of the proceedings. The action is one in which the applicant sues the respondents on a number of causes of action one of which is within the jurisdiction of this Court because it is founded on s. 52 of the Trade Practices Act 1974. Others are said to be within its accrued jurisdiction. The essential allegations in relation to the cause of action under the Trade Practices Act are to be found in paras. 6 and following of the amended statement of claim. In substance it is alleged that the first respondent, by its servant and agent, a Mr. Levett, and the second respondent, who is an architect, requested the applicant to prepare a quotation for certain building work and, for the purpose thereof, provided to the applicant a set of plans. The applicant in reliance upon the plans prepared a quotation. It is alleged that on 15 January 1982 the applicant…