Quad Consulting Pty Ltd v David R Bleakley & Associates Pty Ltd
[1991] FCA 213
•30 Apr 1991
JUDGMENT No. 21.13 7 ...y .,
NOT SUITABLE FOR DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA )
1
NEW SOUTH WmES DISTRICT REGISTRY ) NG 243 of 1990 1
GENERAL DIVISION )
BETWEEN: OUAD CONSULTING PTY LIMITED Applicant
AND : DAVID R BLEAKLEY & ASSOCIATES PTY
LIMITEDRespondent
- _
CORAM: Burchett J.
PLACE: SydneyDATE : 30 April 1991
REASONS FOR JUDGMENT
PRINCIPAL
REGISTRY
BURCHETT J.: This is an application for leave to appeal made under S. 24(1A) of the Federal Court of Australia Act 1976. The application is brought by the respondent in the principal action, which had made an application to Beaumont J. for an increase in the amount of security for costs previously ordered by consent. Beaumont J. refused the application, and leave is now sought, during a break in the hearing of the principal action, to appeal against his Honour's decision.
overlooked the rule to which I have referred, and assumed he had the same time that he would have had to lodge an appeal in The application is made out of time, having regard to the provisions of Order 52 rule 10(2)(b) of the Rules, but of course, if it is an appropriate case, I have power to extend the time. The application is late because the solicitor
L.
a case in which leave was not required.
His Honour's reasons were handed down on 22 March 1991, when he made an order dismissing with costs the application for security. In his reasons, he recited the history of the matter, including the agreement of the parties, reached at an early stage, "that the applicant will provide security for costs in the sum of $15,000". An order was made, apparently on 28 June 1990. By letter of 18 January 1991, the respondent's solicitors wrote pointing out that there had been "numerous developments" since then, including the filing by the respondent of a cross claim, and sought an increase in the security to $45,000. His Honour noted that the power was a discretionary one, and that the discretion had to be exercised "against the background of an earlier agreement on the amount of the security to be provided in respect of the whole proceedings". He added: "I have come to the conclusion that, in the exercise of my discretion, I should not now order further security." He made it clear that he had taken into
account a number of matters which may be summarized as follows: that the amount of $15,000 already provided may be inadequate to indemnify the respondent, but that security for costs does not purport to give an indemnity - his Honour referred to the English convention of fixing a reasonable amount as being about two thirds of the party and party costs; that his Honour did not think the proceedings had in fact assumed a dimension substantially greater than could reasonably have been foreseen at the time of the agreement
fixing upon a sum of $15,000 for security; that the agreement was interlocutory and not final, so that it was not conclusive of the present question, but nevertheless could properly be taken into account; and that the present application, made only shortly before the commencement of the final hearing of the case, "comes at the heel of the hunt", to use the words of
Mason C. J. in Devenish v. Jewel Food Stores Ptv Ltd (1990) 94 ALR 664. The applicant for leave now wishes to file a notice of appeal contending that his Honour erred in that he:
"(a) Failed to give proper or sufficient weight to the evidence as to the amount of security required;
(b)
Failed to have proper regard to the prejudice to the applicant for security as a consequence of the impecuniosity of the applicant in the suit, the Respondent to the motion;
(c)
Took into account the agreement of the parties to provide $15,000 security when the evidence before him was that that amount was at the time of the application inadequate."
The general principles applicable to the granting of
leave to appeal from an interlocutory judgment are not in doubt. So far as concerns the exercise of the power to grant or refuse leave by a single judge, I endeavoured to state the basic questions in Sharp v. DeDUtV Federal Commissioner of Taxation (1988) 88 ATC 4184 at 4185-4186, and again in Vink v. Scherina Ptv Limited (unreported, 5 December 1990). However, there is a distinction, which has repeatedly been pointed out, between an application for leave to appeal involving a point of practice or procedure decided in the exercise of a discretion, and one involving an exercise of discretion which determined substantive rights. The passage in the judgment of the High Court in Adam P Brown Male Fashions Ptv Ltd v. Phili~
Morris Inc (1981) 148 CLR 170 at 177, drawing attention to an earlier statement by Sir Frederick Jordan concerning this distinction, has been repeatedly cited.
I am required to approach the present application on the basis that "a tight rein" should be kept upon interference with the decision of a judge of first instance in a matter of this kind, which is concerned with the practice of the court and not with the substantive rights in dispute in the action. For a recent example of the application of the principle, see Cameron v. Rural Press Limited (unreported, Burchett, Gummow and Hill JJ., 20 July 1990), where it was pointed out that in England the Court of Appeal may take an even stricter view. The rule has been specifically applied to an application for leave to appeal from a refusal to make an order for security
Limited (unreported, Lockhart, Wilcox and Burchett JJ., 12 for costs - see Hair Shack Ptv Limited v. Fairfield Chase Ptv April 1990). In that matter, Lockhart J. said: "Whether or not an order should be made for security for costs is a matter that is essentially within the discretion of the judge who hears the motion for security."
He went on to refer to the passage in Adam P Brown Male Fashions which I have cited. Wilcox J. commented on "the
wisdom of the principles" stated in that case, and he and I
agreed with Lockhart J.In asking whether the present decision is attended with sufficient doubt to warrant its being reconsidered by the full court, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong, I have borne in mind these statements of principle. Bearing them in mind,
I have come to the conclusion that this is not a case for a
grant of leave. I am not persuaded that there is any sufficient prospect that an appeal would be successful, particularly having regard to the fact that the real complaint does not seem to me to be of any error of principle upon the part of Beaumont J., but rather of an alleged misapplication of the principles to which he adverted, and particularly of Jewel Food Stores. I cannot see any reason to think that a full court would find that decision to have been misapplied by his Honour, whether or not its members would themselves have exercised the discretion differently (as to which, of course,
I must not be taken to express any view). The application will be dismissed with costs. I find it unnecessary, in the circumstances, to consider the question of extending the time for the application, since any order of that kind would be futile.
I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Burchett.
Dated: 30 April 1991 Associate IN THE FEDERAL COURT OF AUSTRALIA ) 1 NEW SOUTH WALES DISTRICT REGISTRY ) NG 243 of 1990 1
GENERAL DIVISION )
BETWEEN: gUAD CONSULTING PTY LIMITED Applicant
AND : DAVID R BLEAXLEY & ASSOCIATES PTY
LIMITEDRespondent
JUDGE MAKING ORDERS: Burchett J.
WHERE ORDERS MADE : Sydney
DATE OF ORDERS: 30 April 1991 SHORT MINUTE OF ORDERS OF THE COURT
THE COURT ORDERS THAT:
1. The applicant for leave (the respondent in the action) be refused leave to appeal from the decision of Beaumont J. the subject of the application for leave.
2. The applicant for leave (the respondent in the action) pay the costs of the respondent to the motion for leave (the applicant in the action) of the application for
leave.
NOTE: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
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