Patrick Thomas Byrt v Mandy-Jayne Giannopoulos No. SCGRG 90/2218 Judgment No. 3802 Number of Pages 5 Practice and Procedure Security for Costs

[1993] SASC 3802

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Practice and procedure - security for costs - Appeal from order that personal plaintiff pay security for costs - no reliance by defendant upon any alleged impecuniosity - defendant argued that fact that plaintiff sued many years later for damages for assault alleged to have occurred in 1980, that the plaintiff's case was said to be weak, and that a crucial witness relied on by the plaintiff now denied any knowledge of the matter, amounted to 'special circumstances' within the meaning of Rule 100.01(e) - held that it was difficult to consider the question of 'special circumstances' divorced from the question whether the defendant had demonstrated that there would be any particular difficulty in recovering costs if successful - the fact that the defendant eschewed reliance upon any alleged financial impecuniosity of the plaintiff weighed heavily against the application - the Master who made the order for security erred in failing to give weight to the fact that there was no suggestion that the defendant would be unable to recover costs if no order was made - order quashed. Supreme Court Rules R.l00.0l(e).

HRNG ADELAIDE, 25 January 1993 #DATE 27:6:1993
Counsel for appellant:         Mr E Reinboth
Solicitors for appellant:     Stanley and Partners
Counsel for respondent:        Mr J Roder
Solicitors for respondent:     Corsers

ORDER
Appeal allowed, order quashed.

JUDGE1 PERRY J. In this matter I allowed an appeal against the order of a Master that the plaintiff provide security for costs, and undertook to give my reasons later. 2. The action has some unusual features. The plaintiff, who describes himself in the Statement of Claim as "counsel at law", but in more recent material put on the file as a "barrister", asserts that on 15 August 1979 he was assaulted by the plaintiff, who allegedly struck him over the head with an empty beer bottle while he was seated on a lounge in a flat at North Adelaide. 3. The proceedings were not instituted until 19 September 1990. They include a claim for extension of time for the commencement of the proceedings under s.48 of the Limitation of Actions Act 1936 on the basis that material facts, including evidence as to the identity of the defendant, did not come to the notice of the plaintiff until a date within the period of twelve months prior to the issue of the summons. 4. In an affidavit, the defendant states that she does not know and has never met the plaintiff, and further, that she has never been in a room answering the description of the premises at which the assault is alleged to have occurred on the day alleged in the Statement of Claim, or on any other occasion. 5. In answer to interrogatories, the plaintiff said that the defendant was identified to him by one Vivienne Colmer as the person who had assaulted him "in answer to my request, in front of the witnesses at the time of the assault". In support of an application for summary dismissal of the plaintiff's claim, the defendant's solicitor filed in Court as an exhibit to an affidavit, a statement from Ms Colmer who, although she admitted to having known the plaintiff when she was a student at Adelaide University, denied any subsequent knowledge of the defendant and denied having been present at the time of the alleged assault. 6. The application for summary dismissal of the plaintiff's claim having been unsuccessful, the defendant applied on 14 April 1992 for orders, including an order that the plaintiff "pay into Court the sum of $6,000 to abide the defendant's costs of the proceedings". The application took a long time to come on for hearing, for reasons which do not appear from the file. At all events, when it was heard in November 1992, after hearing counsel, the learned Master, Judge Anderson, reserved his decision. In written reasons published on 17 November 1992, the learned Master allowed the application and ordered that the plaintiff provide security for costs in the sum of $4,000. 7. The present appeal is brought against that order. Both before the learned Master and before me, counsel for the defendant did not put any argument to the effect that the plaintiff lacked the means to pay any costs which might ultimately be awarded against him. The defendant advanced the application for security and his argument against the appeal on the sole ground that there were, within the meaning of Rule 100.01(e) "special circumstances" which justified the making of the order. 8. Rule 100.01 provides:
    "The Court may order security for costs to be furnished:
    Plaintiff insolvent and nominal
    (a) where the plaintiff is a mere nominal plaintiff and is in a
    condition of poverty or insolvency;
    Plaintiff is ordinarily resident out of the State
    (b) where the plaintiff is ordinarily resident out of the
    jurisdiction;
    Residence of plaintiff misstated with intention to deceive
    (c) where the residence of the plaintiff is incorrectly stated
    in the summons with an intention to deceive;
    Authorized by statute
    (d) in circumstances authorised by any statute;
     Special circumstances
    (e) where for special circumstances the justice of the case so
requires." 9. It will be seen from the terms of the rule, that given the concession that the defendant does not rely upon any alleged impecuniosity of the plaintiff, sub-rule (e) is the only rule which could possibly justify the making of the order. 10. In his reasons for judgment, Judge Anderson described the application as one which was: "...grounded squarely upon the plaintiff's chances of success". 11. He went on (reasons, page 4): "Mr Reinboth asserts that 'the plaintiff has certainly got a case to argue and to put forward...'. There is no question of the issue being decided in this application. It is important, however, to look at the plaintiff's case - he seeks an extension of time to proceed in relation to an assault alleged to have occurred in 1979, to have been reported to the police in 1988 and relies upon a witness who has made a statement in the presence of a Justice of the Peace denying the very foundation of the plaintiff's allegation. All this is without the defendant's denials as pleaded. I agree with Mr Roder that the chances of the plaintiff succeeding upon the principal issue are very slim. The defendant will be required to be present and represented at the preliminary point. In these circumstances the plaintiff should provide security for costs. As only the preliminary point is involved at this time the security should be less than that sought in the application. I fix the security at $4,000 and order accordingly." 12. The reference to the preliminary point is a reference to the fact that the issues as to whether or not the plaintiff should be granted an extension of time for the commencement of the proceedings pursuant to s.48 of the Limitation of Actions Act, together with the general issue of liability, have been ordered to be determined before the issue of quantum. 13. Before me, Mr Roder of counsel for the defendant, submitted that the matters which amounted to special circumstances within the meaning of Rule 100.01 were:
    (a) The weakness of the plaintiff's case.
    (b) The fact that the assault is alleged to have occurred so
    long ago, and
    (c) That Ms Colmer, relied on by the plaintiff as a witness,
    denies any knowledge of the matter. 14. Mr Roder argued that that there is no reason why an order for security for costs should not be made, on grounds divorced from any question of difficulty in obtaining payment of any costs. 15. It must be conceded that the words "special circumstances" are words of very wide import, and it may be that in a rare case security for costs might be ordered even in a case where there is no suggestion of any difficulty likely to arise in recovering costs. But that would be a very unusual case. In my opinion, the words "special circumstances" should be read ejusdem generis with sub-rule (a), (b) and (c) of Rule 100.01. Each of the matters in those sub-rules have regard to either impecuniosity or matters which could give rise to difficulties in enforcing an order for costs. The very nature of security for costs is that it provides an assurance to the defendant that success in the action will not be at his own expense. I find it difficult to imagine "special circumstances" justifying an order for security for costs, in a case where the grounds asserted are divorced from any question of inability or difficulty in payment of costs. 16. That is not to say that other matters may not be relevant, indeed, highly relevant to the success or failure of such an application. The strength of the plaintiff's claim is always a consideration. But here it has been conceded that the plaintiff has an arguable case. I accept that when we speak of the strength of the plaintiff's case in the context of applications for security for costs, the Court is normally addressing cases which are arguable but weak. That must be so, as otherwise the appropriate application would be for summary judgment. Be that as it may, it is by no means clear that Ms Colmer will be the only witness relied upon by the plaintiff. Others were said to have been present at the time of the alleged assault. Too much can be made of affidavits sworn during the course of interlocutory applications of one kind or another. It is generally easier to come to a conclusion that a case is weak in a situation where that conclusion may be reached by reference to questions of law rather than by reference to questions of fact. It has often been said that a natural plaintiff is rarely required to give security, even though lacking means. A fortiori, I would have thought, where the defendant applying for security eschews any argument based upon the plaintiff's lack of means. 17. The appeal is subject to the well known rules as to appeals against the exercise of a discretion. 18. In my opinion, the learned Master erred in his observation that the question of the impecuniosity of the plaintiff had no relevance to the present application. In my opinion, the fact that the defendant did not assert that there would be any difficulty in recovering costs if he should be successful in the action, while perhaps not fatal to the application, made it very difficult for it to succeed. The fact that there was no assertion that there would be any particular difficulty in enforcing an order for costs should the defendant be successful in the action, was a matter which was very relevant to the question whether it was proper for an order for security for costs to be made. 19. It follows that the learned Master's approach to the application was erroneous. It is incumbent upon me, therefore, to substitute my own view. On reviewing the material, it seems to me that no case was made out for the making of the order appealed from. The matters which lead me to that view appear sufficiently from the observations which I have already made. 20. Although the case is unusual, that is not the same as saying that there were "special reasons" within the meaning of Rule 100.01. In my opinion, the matters suggested as constituting "special reasons" did not in the circumstances qualify as such. All relevant matters fall to be considered in the exercise of the discretion and the fact that the defendant eschewed reliance upon any suggestion of financial impecuniosity, tells heavily against the application. The appeal must be allowed, and the order for security for costs is quashed. 21. There will be an order that the costs of and incidental to the appeal be paid by the defendant to the plaintiff. 22. I have raised with counsel the fact that, as specialist medical witnesses are to be called on the issue of extension of time to sue, it may be that in the long run, costs will be saved if all issues be determined by a trial now, rather than reserving the question of quantum for trial to a later date. I have given an early appointment for counsel to pursue that aspect of the matter in chambers.