QE Family Pty Ltd v Peter Warren Trading as Mercedes-Benz Macarthur
[2023] FedCFamC2F 875
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
QE Family Pty Ltd v Peter Warren Trading As Mercedes-Benz Macarthur [2023] FedCFamC2F 875
File number(s): CAG 39 of 2022 Judgment of: JUDGE W J NEVILLE Date of judgment: 28 September 2023 Catchwords: PRACTICE & PROCEDURE – Application for security for costs – procedural difficulties and evidentiary flaws all of the Applicant’s own making including failure to obtain an independent expert report for the final hearing – no evidence filed regarding the financial capacities of either the corporate Applicant or the former sole director – because of very significant evidentiary issues prospects of success of the primary Application are low – Order for security made and proceeding stayed until it is paid into Court and if not paid at the latest by 5 days prior to hearing the Application will be dismissed. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2001 (Cth), r.9.04 Cases cited: Jazabas Pty Ltd v Haddad (2008) 65 ACSR 276 Division: Division 2 General Federal Law Number of paragraphs: 27 Date of hearing: 7 September 2023 Place: Canberra Applicant: Self-represented Counsel for the Respondent: Ms K Weir Solicitor for the Respondent: Hunt & Hunt Lawyers ORDERS
CAG 39 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: QE FAMILY PTY LTD
Applicant
AND: PETER WARREN TRADING AS MERCEDES-BENZ MACARTHUR
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
28 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The sum of $35,000.00 be held as security for the Respondent’s costs in the matter of CAG 39 of 2022 pending further order of the Court.
2.Within 14 days, being by 4:00pm on 12 October 2023, the Applicant is to pay $35,000.00 as security for the Respondent’s costs into the Court by bank transfer via the following details:
Account Name: Federal Court Litigants Fund
Name of Bank: Reserve Bank of Australia
Address of Bank: 65 Martin Place Sydney NSW 2000
BSB: 092-002
Account Number: 111230
Swift Code: RSBKAU2S
ABN: 49 110 847 399
Email Remittances: [email protected]
3.In the event the Applicant fails to comply with Order 2 herein, the proceedings shall be stayed until security is given in accordance with Order 2.
4.In the event the Applicant fails to comply with Order 2 herein by 25 October 2023, the proceedings be dismissed.
5.The Applicant pay the Respondents costs of and incidental to the Application filed 29th June 2023, with such amount to be either agreed or taxed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
This needlessly intractable commercial dispute regarding the roadworthiness of a Mercedes-Benz vehicle should have been resolved a very long time ago. The intractability is both in relation to factual matters and in relation to procedural matters. In relation to the latter, even the most straight-forward issue is a needless and fruitless contest.
For example, as is typical of matters of this kind, an independent expert is almost invariably agreed and appointed, the expert provides a report, and often there follows a mediated resolution. Not so here. First, the parties could not agree on a relevant independent expert. Secondly, the correspondence between the parties (provided to the Court), together with multiple Orders, all attest to the multiple attempts to secure an independent expert to assess the vehicle. The Court also proposed that the NRMA assist in the selection or nomination of said expert. Nothing was ever agreed. Thus, the parties, and the Court, are without an independent expert Report regarding the condition of the vehicle. The only so-called Report, which is relied upon by the Applicant, is an assessment undertaken by Mercedes-Benz in 2022, which found there to be none of the faults complained of by the Applicant.
Further Orders were made regarding the exchange of “expert reports” – all to no avail. The “Applicant” (discussed further below) continues to say that (a) his vehicle is unsatisfactory, un-driveable, and that it sits in the driveway of his residence, and (b) he has made the vehicle available to the Respondent in 2022 (pursuant to Orders of Wigney J when the matter was in the Federal Court of Australia). Following that inspection by the Respondent, it appears from a “Report” (noted below) that none of the faults complained of by the Applicant were found. A short “note”, which records each alleged fault and the comments of the Respondent in relation to each of them, is set out in a “Service Invoice”, dated 28th September 2022. This was sent to the Court under cover of an email from the Applicant, dated 25th July 2023. Among other things, this email stated: “… I have provided the vehicle for inspection by the respondent, pursuant to the direction of Wigney J. A formal Mercedes Benz Report has been made. There is no need for a further report…” How a report from the Respondent, which found nothing untoward with the vehicle, constitutes an “expert report”, or establishes the faults complained of by the Applicant, which it plainly does not do, were never explained by the Applicant.
Matters of evidence, such as in relation to “reports”, and all else, await determination at the final hearing, currently listed for 30th October 2023. The immediate matter for resolution arises from the Respondent’s Application in a Proceeding, filed 29th June 2023, by which the Respondent seeks that the Court make an Order for security for costs against the “Applicant”. The amount sought is set out not only in the Application but also in the supporting Affidavit of Mr Tass, the Respondent’s solicitor, also filed 29th June 2023.
The Respondent seeks that security be provided, in the alternative, by either the Applicant (Dr Quach) or the Applicant (Dr Quach’s family trust, “Qe Family Pty Ltd”).
For the reasons that follow, the Application should be granted. Although the Respondent sought an amount slightly higher, the sum to be paid for security shall be $35,000, and as sought, it is to be paid into Court within 14 days. An Order for costs should follow the event in the Respondent’s favour, such amount to be either agreed or taxed. The other, usual Orders sought set out in the Application should also be made, including, for example, that the proceeding be stayed until the security be paid into Court.
Respondent’s Orders Sought
The Respondent’s Orders sought, as set out in the Application in a Proceeding filed 29th June 2023, were in the following terms:
1.An order pursuant to s 215 of the Federal Circuit and Family Court of Australia Act 2021 and, alternatively or additionally rule 22.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 and, alternatively or additionally, pursuant to the Corporations Act 2001 (Cth) s 1335 and/or the inherent jurisdiction of the Court that the Applicant provide security for the Respondent's costs by payment into Court, of such a sum as this Honourable Court deems fit within 14 days of the date of orders.
2.Orders that if security in Order 1 is not provided, the proceedings be dismissed with costs alternatively that the proceedings be stayed until security is given in accordance with Order 1.
3.Such further or other orders · as this Honourable Court deems fit.
4.Costs on an indemnity basis or, alternatively, costs, such costs to be assessable forthwith.
Applicant’s Orders Sought
Formally, the Applicant never filed a Response to the Application in a Proceeding that seeks Orders regarding security for costs. He did, however, file very brief submissions on 1st September 2023, in which he simply stated that “the respondent’s application should be dismissed.” A similar Affidavit was filed on 7th September 2023, in which the same basic statement was made (at par.1), opposing the Application for security for costs.
Who is the Applicant?
There was a procedural difficulty of the Applicant’s own making regarding the identity of the “Applicant” and various procedural matters that flowed from this. I say this for the following reasons.
The Originating Application, filed 7th April 2022, named the Applicant as “QE Family Pty Ltd.” The Amended Originating Application, filed 1st August 2022, named the same Applicant. An Amended Statement of Claim was filed on 1st August 2022, in which the Applicant/Plaintiff was again identified as “QE Family Pty Ltd.” Paragraph 1 of that Amended Statement of Claim stated:
The plaintiff ordered a new vehicle (with options) from Mercedes-Benz Macarthur on 10 September 2018 …
On a number of occasions, the Respondent has sought to have the Applicant define or declare its position so as to ensure that the correct party conducts the proceedings – with or without legal representation. This is especially so since, as is common in most if not all courts, any litigation conducted by a corporate entity requires that the corporation be legally represented.[1] I need not detail the inquiries by the Respondent in this regard.
[1] See Rule 9.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2001 (Cth).
To compound the opaque nature of the identity of the relevant “Applicant”, I note that (a) the contract for the purchase of the Mercedes-Benz vehicle, dated 10th September 2018, lists “Mr Michael Quach” as the “Customer Name”; (b) while various Service Tax Invoices (e.g. dated 4th April 2022, and 28th September 2022) list the Customer Name as “QE Family Pty Ltd.” To state the obvious: all such details are a matter for, and in the control of, the Applicant, however described.
Indeed, in an Affidavit, filed 5th September 2022, at par.7, Dr Quach deposed: “Before Anthony [the salesperson] travelled to Canberra, I asked him to register the vehicle in my trust name, QE Family Pty Ltd.”
During the course of the hearing on 7th September 2023 regarding security for costs, the Applicant filed in Court a further Affidavit. That Affidavit, deposed by Dr Quach, among other things, stated that (a) he opposed the Application for security for costs, (b) as a director of the QE Family Pty Ltd he had given himself authority to represent that company, (c) as a director of QE Family Pty Ltd he had “absolute entitlement” to the “asset” known as the Mercedes-Benz vehicle, (d) according to some law, described as “the law of absolute entitlement”, this recognised him as the owner of the vehicle (he also deposed that he was the beneficiary who was “absolutely entitled” to the assets of QE Family Pty Ltd, (e) his Wife was appointed a director of that company on 7th March 2023, and his Wife now has “absolute entitlement” to the asset of the said vehicle, and (f) the Applicant has [now] received authority from his Wife to “legally represent” her and the company in the proceeding.
The final paragraph of this Affidavit (par.9) contained submissions regarding security for costs. These were to the effect that because the QE Family Pty Ltd holds certain assets (on trust for another named company), namely the motor vehicle itself together with a property in Homebush West in Sydney, in his submission, the Application for security for costs was “mooted” [sic].
For completeness, I should note that, whatever and whenever there was any relevant “authority” provided by one or other of the “sole directors” of QE Family Pty Ltd, that entity remains formally listed as the Applicant in this litigation. There has been no formal Application to change the name of the Applicant in this Court.
Written Submissions on behalf of the Respondent
The Respondent filed two brief outlines of written submissions on 31st August 2023 in relation to the issues of security for costs, and expert evidence. The submissions regarding security for costs were as follows (I need not address the issue of experts here) (emphasis in original):
RESPONDENT'S MOTION FOR SECURITY FOR COSTS
RESPONDENT'S OUTLINE OF SUBMISSIONS
Overview
1. The Applicant is a company incorporated in Australia which the Respondent understands to be the trustee of QE Tai Sing Family Trust (Trust). The Respondent is a company incorporated in Australia and operates a group of automotive dealerships
2. These proceedings concern a claim by the Applicant that the Respondent is in breach of its consumer guarantee obligations in delivering a Mercedes-Benz V250, VIN WDF44781323550055 (Vehicle) not of acceptable quality in breach of the Competition and Consumer Act 2010 (Cth), Schedule 2, The Australian Consumer Law. The Applicant alleges that the Respondent has refused to repair or replace the Vehicle supplied under Warranty. The Applicant has alleged that the Vehicle ordered through the Respondent has had numerous faults and defects.
3. The Respondent denies the existence of any faults or defects with the Vehicle it delivered to the Applicant. Further, the Respondent claims that the Vehicle has been returned to Mercedes-Benz Macarthur and Mercedes-Benz Canberra on numerous occasions from March 2019 until the commencement of these proceedings, and at all material times, the Vehicle was inspected with only various minor issues being identified and rectified.
4. The Respondent submits that an order for security of its costs should be made for the reasons set out below.
Reason to believe that the Applicant will be unable to meet an adverse costs order
5. Pursuant to section 215 Federal Circuit and Family Court of Australia Act 2021 and, alternatively or additionally rule 22.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 and, alternatively or additionally, pursuant to section 1335 of the Corporations Act 2001 (Cth) and/or the inherent jurisdiction of the Court, the Court may order the Applicant to give the security that the Court considers appropriate for the Respondent's costs of the proceeding if there is reason to believe that an Applicant corporation will be unable to pay the costs of the Respondent if ordered to do so.
6. The evidence before the Court suggests that the Applicant will be unable to meet an adverse costs order by the Court. That evidence includes the following:
a. The paid share capital of the Applicant is $10: Affidavit of J Tass at paragraph 10 and Annexure B;
b. The Applicant does not have a registered ABN and therefore is not registered for GST, leading to the assumption that the Applicant is not trading in any significant way, or in its own right: Affidavit of J Tass at paragraph 10 and Annexure B;
c. Although the Applicant is the registered proprietor of 15 Courallie Avenue, Homebush West NSW 2140, the Respondent believes that the property is held by the Applicant as trustee for the Trust: Affidavit of J Tass at paragraphs 11 and 12 and Annexures C and D.
7. On 15 June 2023, the Respondent caused correspondence to be sent to Dr Michael Quach (Dr Quach) seeking, inter alia, financial information of the Applicant: Affidavit of J Tass at paragraph 14 and Annexure E.
8. Notwithstanding the request, the Applicant has not responded and therefore has failed to provide any documentation detailing its financial position. In such circumstances, the Court should infer that any such information would not have assisted the Applicant.
9. In the circumstances set out above, the Respondent submits that the Court may comfortably find that the Applicant would not be able to satisfy a costs order were one to be made.
Low Prospects of Success
10. The Respondent submits that the Applicant has limited, if any, prospects of succeeding in its claim, especially in circumstances where the Respondent has diagnosed and has not found any major faults with the Vehicle as alleged by the Applicant. Further, the Applicant has refused to make available the Vehicle for inspection to allow the Respondent to furnish an expert report, despite the Respondent and the Court making repeated requests to Dr Quach.
11. For the reasons set out above, the Respondent submits that the Applicant has low prospects of succeeding in its claim and, as a result, the Respondent's request for security is not only justified but reasonable.
Applicant is suing for the benefit of others
12. In circumstances where it appears that the Applicant does not have substantial assets in its own right and retains the property as trustee for the Trust, the Respondent submits that the proceedings are effectively being brought for the benefit of Dr Quach.
13. Dr Quach, the person who appears to be controlling the Applicant, is not listed as a director, secretary or shareholder of the Applicant company, and therefore, does not have standing to pursue the litigation for the Applicant: Affidavit of J Tass at paragraph 17 and Annexure B.
14. For the reasons set out above, the fact that the proceedings are being brought for the benefit of Dr Quach, without Dr Quach having to risk being liable for an adverse costs order supports an order for security being made.
Reasonableness of quantum of costs
15. The Respondent's evidence is that the ordinary costs of the proceedings for the Respondent will be $37,715.84 plus GST. This estimate is based on 80% of the total costs of $47,144.80 plus GST. This allows for a 20% discount to reflect what costs may be reasonably recoverable party/party costs: see Affidavit of J Tass at paragraphs 20 to 24.
Conclusion
16. Considering the above, the Court should make orders:
a. that the Applicant provide security for the Respondent's costs in the sum of $37,715.84 by payment into court;
b. if security is not provided, the proceedings be dismissed with costs or alternatively that the proceedings be stayed until security is given; and
c. that the Applicant pay the Respondent's costs of the motion.
Written Submissions on behalf of the Applicant
The Applicant filed two outlines of written submissions on 1st September 2023, both dated 31st August 2023, regarding security for costs, and regarding expert evidence.
Applicant’s Written Submissions on Security for Costs
The Applicant filed the following document in response to the ‘Respondent’s Application’. In its entirety, it consisted of the following statement.
Outline of Submissions (Respondent’s application) 31 August 2023
I rely on and read my Affidavit of Dr Michael Van Thanh Quach of 9 July 2023.
The respondent’s application should be dismissed.
Outline of Principle
In Jazabas Pty Ltd v Haddad, the Court of Appeal in New South Wales outlined relevant principle and the factors to consider in relation to whether to make an Order requiring that JA generally agreeing at [4])), stated:
74 A convenient summary of the relevant principles was made by Beazley J, as her Honour then was, in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189. Her Honour’s judgment has been applied in many subsequent cases. Beazley J said at 196-198:
“Principles governing application for security for costs
The law is now settled that the discretion to order security for costs 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: see the review of the authorities by French J in Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd ; (1987) 16 FCR 497 AT 509. See also Interwest Ltd v Tricontinental Corporation Ltd (1991) 5 ACSR 621 at 623-624 and Zeeman J's decision in Weily's Quarries v Devine Shipping Pty Ltd (1994) 14 ACSR 186 at 188. In Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) 8 ACSR 405 at 415, Cooper J stated that:
‘[i]t is not possible or appropriate to list all of the matters relevant to the exercise of the discretion. The factors will vary from case to case. The weight to be given to any circumstance depends upon its own intrinsic persuasiveness and its impact on other circumstances which have to be weighed: P S Chellaram & Co Ltd v China Ocean Shipping Co (1991) 65 ALJR 642 at 643.’
Notwithstanding the broad unfettered discretion with which the Court approaches an application for security for costs, there are a number of well established guidelines which the court typically takes into account in determining any such application. They are:
1.That such applications should be brought promptly. This is a principle of longstanding: see Grant v The Banque Franco-Egyptienne (1876) 1 CPD 143; see also Smail v Burton; Re Insurance Associates Pty Ltd [1975] VR 776 per Gillard J at 777; Caruso Australia Pty Ltd v Portec (Australia) Pty Ltd (1984) 1 FCR 311 at 313; Bryan E Fencott at 514. I should state immediately that there is no issue of delay in this case.
2.That regard is to be had to the strength and bona fides of the applicant's case are relevant considerations: see M A Productions Pty Ltd v Austarama Television Pty Ltd (1982) 7 ACLR 97 at 100; Bryan E Fencott at 514. As a general rule, where a claim is prima facie regular on its face and discloses a cause of action, in the absence of evidence to the contrary, the court should proceed on the basis that the claim is bona fide with a reasonable prospect of success. (Bryan E Fencott at 514).
3.Whether the applicant's impecuniosity was caused by the respondent's conduct subject of the claim: see M A Productions v Austarama Television at 100.
4.Whether the respondent's application for security is oppressive, in the sense that it is being used merely to deny an impecunious applicant a right to litigate: see M A Productions v Austarama Television at 100; Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542 per Clarke J at 545; Bryan E Fencott at 513. In Yandil Holdings at 545 Clarke J stated the principle in these terms:
‘[t]he fact that the ordering of security will frustrate the plaintiff's rights to litigate its claim because of its financial condition does not automatically lead to the refusal of an order. Nonetheless it will usually operate as a powerful factor in favour of exercising the court's discretion in the plaintiff's favour.’
This factor is related to the next, namely:
5.Whether there are any persons standing behind the company who are likely to benefit from the litigation and who are willing to provide the necessary security: see Memetu Pty Ltd v Lissenden (1983) 8 ACLR 364; Sent v Jet Corporation of Australia Pty Ltd (1984) 2 FCR 201; Bell Wholesale Co Pty Ltd v Gates Export Corporation (1984) 2 FCR 1; Hession v Century 21 South Pacific Ltd (In liq) (1992) 28 NSWLR 120 at 123; Bryan E Fencott at 513; Yandil Holdings at 545. The combined effect of these two principles was summarised by Meagher JA in Hession at 123 as follows:
‘ ...a company in liquidation against whom an order for security for costs is sought cannot successfully resist such an order merely by proving that it cannot fund the litigation from its own resources if an order for security is made; it must prove that it cannot do so even if it relies on the other resources available to it (the company's shareholders or creditors) ... Finally, whilst it is both true and important that poverty must be no bar to litigation, what that means is that the courts must be astute to see that no person pursuing a claim which is not frivolous is precluded from doing so by the erection of obstacles which poverty is unable to surmount; it does not mean that proof of insolvency automatically confers an immunity from statutory provisions which deal with insolvent plaintiffs.’
6.An issue related to the last guideline is whether persons standing behind the company have offered any personal undertaking to be liable for the costs and if so, the form of any such undertaking: see Cameron's Unit Services Pty Ltd v Kevin R Whelpton & Associates (Australia) Pty Ltd (1986) 13 FCR 46 at 53; Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd (1990) 8 ACLC 304; Clyde Industries Ltd v Ryad Engineering Pty Ltd (1993) 11 ACLC 325.
7.Security will only ordinarily be ordered against a party who is in substance a plaintiff, and an order ought not to be made against parties who are defending themselves and thus forced to litigate: see Interwest at 626; Heller Factors Pty Ltd v John Arnold's Surf Shop Pty Ltd (1979) ACLC 32,446; Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 5 ACLC 480; Weily's Quarries v Devine Shipping where Zeeman J stated (at 189):
‘[t]he general proposition that security ought not to be ordered where the proceedings are defensive in the sense of directly resisting proceedings already brought or seeking to halt self-help procedures is no more than that, a general proposition. It ought not to be elevated to being a rule of law. In many cases of that nature it could be considered oppressive to require security and that in itself may be sufficient to refuse to make an order ... [see] Sydmar Pty Ltd v Statewise Developments Pty Ltd and Interwest Ltd v Tricontinental Corporation Ltd.” [emphasis added.]
Consideration and Disposition
Two things should be noted at the outset. First, in the course of its submissions, the Respondent made plain that it sought security for costs in the alternative, against either or both, the Applicant (QE Family Pty Ltd) and/or against Dr Quach.
Secondly, the Applicant (neither QE Family Pty Ltd nor Dr Quach) has filed no evidence regarding its (or his) financial status. In various Affidavits he has filed, Dr Quach has described himself variously as “doctor” or “medical practitioner.” For my part, I have some doubt about the accuracy of such descriptions because, in unsworn comments from the Bar Table in response to questions from the Court, Dr Quach says that he earns income from his company that works in “IT.” He refused to provide any other details regarding the nature of the “IT” services his company provides, to whom the services are provided, or the income he derives from his IT company (which I assume, but otherwise do not know, to be somehow medically related). It may be best, for more abundant caution and for completeness, for a quick check to be done of medical registration services or similar (including records of this Court and the Federal Court of Australia) to determine (if possible) details pertaining to the professional or other services of Dr Quach.
Further, Dr Quach’s contention that the instant Application is “mooted” because of the value of the current vehicle is a circular argument. This is because, on the one hand, he says it has value such that any security for costs Application is unnecessary, but on the other hand, the whole reason for the primary Application before the Court is because the vehicle, in his view, is irreparable and presumably, therefore, of little or no commercial value.
There is no evidence before the Court regarding the value of the property in Homebush in Sydney. There is a suggestion that there is a mortgage over it of an indeterminate amount.
By reference to the principles outlined earlier, in my view, it is sufficient to note the following:
(a)On all the evidence, the QE Family Pty Ltd and Dr Quach are essentially interchangeable, accepting also that it now seems that only Dr Quach’s Wife (who is not on Affidavit) is an officeholder of this family company;
(b)The issues of the bona fides and strength of the case brought by the Applicant (however described) is much more problematic. There is no doubt that Dr Quach considers his vehicle to be unroadworthy, unsatisfactory and irreparable. Among other things, he seeks that it be replaced. However, his abject refusal to comply with Court Orders regarding obtaining an independent, expert Report has almost nullified, and certainly stultified, the prospects of his claim succeeding. This is because he has stated repeatedly that he made the vehicle available to Mercedes-Benz in late 2022, and the Report from Mercedes-Benz is sufficient for the litigation. It has mattered not one jot how many times, and in how many ways, either the Court, or the Respondent, has each highlighted that this “Report” (which found there to be none of the faults complained of by Dr Quach) does not satisfy the requirements for an “independent expert report.” Come the actual trial, and there is only the “Report” from Mercedes-Benz from September/October 2022 which determined there to be no relevant faults as alleged, the prospects of success must be considered to be negligible, at best;
(c)At the hearing on 7th September 2023, Dr Quach indicated that he would likely obtain further reports from either Anthony Costello Automotive and/or from Expert Auto Electrics. Tax invoices from both of these organisations were provided to the Court, the latter dated 6th April 2023, the former dated 19th October 2020. Both invoices were admitted into evidence as Exhibits A1 and A2. Neither invoice assists the Applicant. Whether, and if so how, a “Report” from one or other of these businesses would assist the Court, let alone comply with the requirements in relation to an independent expert report, is completely unknown;[2]
(d)The amount of security sought by the Respondent is extremely modest. Put another way, in my view, it is not oppressive at all;
(e)While the Application for security has been brought rather closer to the trial than would perhaps be desirable, such delay as there has been is readily explicable in the light of the almost innumerable attempts, always opposed by Dr Quach, to secure an expert report to remedy the glaring evidentiary gap in this regard.
[2] As noted earlier in these reasons, the Applicant was regularly referred to the Federal Court Expert Evidence Practice Note regarding the requirements concerning “expert evidence” and expert reports.
In addition to the submissions on behalf of the Respondent, which I accept, for the reasons given, there should be security provided by the Applicant (either the QE Family Pty or Dr Quach) in the sum of $35,000.00. The further consequential Orders sought by the Respondent should also be made, namely that payment into Court of the security is to be made within 14 days, failing which the proceeding be stayed until security is given. If the requisite payment remains outstanding 5 days prior to the scheduled commencement of the trial, the proceeding will be dismissed.
The Respondent should have an Order for costs of the successful Application, either as agreed or taxed.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 28 September 2023
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