Payne v Australian Pacific Airports (Melbourne) Pty Ltd (Ruling)

[2020] VCC 1485

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
  Suitable for Publication

GENERAL LIST

Case No. CI-20-03407

JADE MARINA PAYNE	Plaintiff
v
AUSTRALIAN PACIFIC AIRPORTS (MELBOURNE) PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2020
DATE OF RULING:	23 September 2020
CASE MAY BE CITED AS:	Payne v Australian Pacific Airports (Melbourne) Pty Ltd (Ruling)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1485

RULING
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Subject:  PRACTICE AND PROCEDURE

Catchwords:             Security for costs – application by defendant for plaintiff to provide security for costs – plaintiff living out of jurisdiction – plaintiff has no assets within the jurisdiction – prospects of success of claim – delay in Medical Panel determination – whether plaintiff’s claim would be stifled by the making of the order

Legislation Cited:     Wrongs Act 1958, Part IIA; County Court Civil Procedure Rules 2008, r62.02

Cases Cited:PS Chellaram & Co Limited v China Ocean Shipping Co & Anor (1991) 102 ALR 321; CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270; Tradestock v TNT (Management) Pty Ltd (1977) 14 ALR 52

Ruling:  Summons dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K M Manning	Henry Carus & Associates
For the Defendant	Ms L Burke	Sparke Helmore Lawyers

HIS HONOUR:

1       By Summons dated 3 September 2020, the defendant (“APA”) seeks an order that the plaintiff, Ms Payne, pay the sum of $225,000 as security against the defendant’s costs.

2       The application was supported by two affidavits of the defendant’s practitioner, Ms Kerri-Beth Maree Thomas, and an affidavit of the plaintiff’s practitioner, Ms Jessica King.

3       After hearing submissions from the parties on 16 September 2020, I determined to dismiss the Summons, and award costs in favour of the plaintiff.  These are the reasons for that ruling.

4       The plaintiff, Ms Payne, alleges that on 22 December 2018, she suffered significant injury when a chair that she was sitting on in the Jetstar Lounge at Melbourne Airport, Tullamarine, collapsed.  She alleges APA was the occupier of the premises where the incident occurred.  The injury, she says, was caused by the negligence or breach of occupier’s duty by APA. 

5       At the time of the hearing of the application, APA had not filed a defence.

6       On 10 February 2020, the plaintiff’s practitioners served upon APA a Certificate of Assessment by a medical practitioner pursuant to the provisions of the Wrongs Act 1958.  APA’s practitioners, by letter dated 3 April 2020, referred the matter of the assessment of the plaintiff’s injuries to the Medical Panel for the Panel to determine whether the injuries met the threshold as prescribed by the Act.  Due to COVID-19 restrictions, a medical panel has not examined nor made a determination in respect of the plaintiff’s injuries.  According to the affidavit of Ms King, should the Medical Panel find the plaintiff did not meet the threshold, the claim is likely to be abandoned.

7       Ms Payne was born in the United Kingdom and, I was informed, had obtained a working visa to work in Australia.  It was her intention to seek permanent residence in New Zealand.  Ms King’s affidavit states the plaintiff has returned to the United Kingdom, in part due to her injuries but also as a result of the restrictions caused by the COVID-19 pandemic.

8       According to the affidavits of Ms Thomas, she has been instructed APA was not the occupier of the premises where the incident occurred, not the manufacturer nor supplier of chairs, nor responsible for their installation in the lounge area.  Her affidavit states APA was one of many occupiers of the Melbourne Airport, but not where the incident occurred.  She says APA engaged a separate entity, Programmed Facility Management Limited, to maintain and service the Airport, including the lounge area where the incident occurred.  That company was engaged to supply and install chairs in the lounge area. 

9       The Medical Panel advised the practitioners that examination of persons referred to the Panel has been suspended in the current health crisis.  On 30 June 2020, Ms Thomas arranged to suspend the referral to the Medical Panel until she “received confirmation from the Plaintiff that she intended to proceed with her claim against the Defendant”. 

10      Ms Thomas’ affidavits refer to the requests made of the plaintiff’s practitioners as to the assets the plaintiff held, and no response received.

11      According to Ms King’s affidavit, an award for security for costs “… would impose on the Plaintiff such a financial burden as to stultify or frustrate the plaintiff’s claim, such that the plaintiff will be forced to abandon her claim if such an order is made against her”.

12      Further, says Ms King, the plaintiff does not have liquid assets that she could sell to satisfy a security for costs order. 

13      Ms Burke, counsel for APA, submitted the reasons why an order for security for costs ought be made are:

·        Ms Payne was out of the jurisdiction, and there is nothing to suggest she has sufficient assets to meet any costs order should the claim be abandoned or lost.

·        The prospects of success were doubtful, given APA says it was not the occupier of the area where the incident occurred, and was not responsible for any defect in the chair.  Further, if the Medical Panel’s assessment brought Ms Payne’s injuries under the necessary threshold, it is likely she would abandon the proceeding.

·        The Medical Panel assessment was in abeyance as a result of the suspension of the referral, because Ms Payne was either reluctant to attend, or unable to do so, given she was living overseas.

·        APA’s actions could not be said to be responsible for Ms Payne’s impecuniosity.

·        There was no satisfactory evidence that Ms Payne’s claim would be stifled or frustrated were such an order to be made.

·        APA brought this application at the earliest reasonable stage in the proceeding.

·        The Court has a discretion to impose a security for costs order as a staged process, or upon such other terms and conditions as the Court deems fit.

Analysis

14 Order 62.02 of the County Court Civil Procedure Rules 2008 provides that where a plaintiff is ordinarily resident out of Victoria, a court may, on application by a defendant, order that plaintiff to give security for costs, and for the proceeding to be stayed until such security is given.

15      The Court has an inherent jurisdiction to order security for costs.  The purpose of the power is to protect a defendant which, in certain cases, may not be able to recover costs in a foreign jurisdiction.  However, while the fact that a party resides outside the jurisdiction is a pre-condition to such an application and a matter to be taken into account,[1] that, of itself, does not mean an order for security for costs should be made.[2]  It is the whole of the circumstances that should be considered, and the discretion to make an order, which is unfettered, should be exercised judicially. There is a balancing exercise involved, on the one hand to ensure a plaintiff is not prohibited from bringing a proper claim, and on the other, that an injustice may be perpetrated upon a defendant, unable to recover costs when a claim fails.[3]

[1]PS Chellaram & Co Limited v China Ocean Shipping Co & Anor (1991) 102 ALR 321 at paragraph [7]

[2]CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270 at 285

[3]Tradestock v TNT (Management) Pty Ltd (1977) 14 ALR 52 at 56

16      While APA claims it was not the occupier of the area, nor responsible for the chair, it has not filed a defence at this stage, and there is no pleading in place which sets out the basis upon which the denial of liability is clearly stated.  On the one hand, Ms Payne alleges APA was the occupier of the area and responsible for the chair, and, on the other, APA denies that to be the case.  The Court is simply not in a position to determine whether the prospects on liability are strong or otherwise.

17      It is not uncommon in occupier’s liability cases for a party to be named as defendant, and for there later to be the need for other parties to be joined as third parties or defendants in order to determine who in fact was the occupier, or responsible for any defect in the chair.  That process has not been undergone and, in my view, it is premature to bring an application such as this until the pleadings are at a point where the identity of the correct occupier is determined.

18      It is further not uncommon for a plaintiff to reassess the viability of the proceeding once it is determined whether a medical panel will confirm the certificate of assessment.  In addition, it is of note that it was the defendant who suspended the medical panel process, and that has not occurred at the hands of the plaintiff.

19      I am not persuaded that the case brought by the plaintiff is bound to fail, or even that the prospects of success are not strong.

20      While I accept Ms Payne has few, if any, assets within the jurisdiction, there is nothing to suggest she will not return to the jurisdiction to comply with any medical panel requirement, or to return to prosecute the proceeding.

21      I accept the submissions by Ms Manning, on behalf of Ms Payne, that to impose an order requiring security for costs upon the plaintiff, given her age and circumstances, would have a significant affect upon her bringing the claim, and continuing its prosecution.  Were such an order to be made, I accept she would likely abandon the claim.

22      I would add that in the personal injury jurisdiction of this Court, applications for security for costs are rarely seen; they are more a creature of the Commercial Division.  That is, at least in part, because in personal injury cases many plaintiffs do not have the funds necessary to prosecute cases.  They are undertaken by legal practitioners prepared to work on a ‘no-win-no-fee’ basis and are almost invariably brought against defendants backed by large insurers.  Were orders to be made in cases where liability at the early phase of a proceeding was uncertain and the plaintiff impecunious, it would have a significant impact on cases where plaintiffs were out of the jurisdiction.  That is not to say applications for orders for security for costs should not be granted, but it is a matter to be taken into account.

23      The Summons will be set aside.  Costs should follow the event.

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