Rocter Tanks Pty Ltd v J and D Adam and S Foale No. Scciv-00-697

[2001] SASC 196

ROCTER TANKS PTY LTD  v  JIM ADAM, DEBORAH ADAM AND SIMON FOALE

[2001] SASC 196

Civil (Ex Tempore)

1. LANDER J.           There are two applications before me this morning by the successful appellant in an appeal from proceedings in the Magistrates Court:

   1.That the issue as to whether or not the appellant requires leave to appeal with an action pursuant to s.50(3)(a) of the Supreme Court Act be argued and considered by this honourable court separately to the substantive appeal from the judgment of Lander J delivered on 21 December 2000. 

   2.Further, and in the alternative, as a condition of the appellant proceeding with its argument, s.50(3)(a) does not apply and the substantive appeal itself being heard, at the same time the appellant pay into court the sum of $5000.

2. The first application is essentially procedural, the second application is for security for costs.

3. The applicants were defendants in proceedings brought in the Magistrates Court. The plaintiff recovered in those proceedings.  The defendants appealed to this Court and the appeal was successful in part.  I shall refer to the parties as defendants and plaintiff.

4. After delivery of my judgment the plaintiff applied to me for leave to appeal from my decision to the Full Court. I refused that application.

5. The plaintiff then filed a notice of appeal to the Full Court, claiming an appeal as of right. At the same time the plaintiff applied for leave to appeal against my judgment refusing leave to appeal. That second application is misconceived. What, in fact, I think the plaintiff meant to do was apply for leave to appeal from my decision allowing the appeal from the decision in the Magistrates Court: r 94.01.

6. In any event, the application for leave to appeal was considered by the Full Court in private. It concluded that it was inappropriate for the Full Court to determine the application, given the existence of the intended appeal as of right. The Full Court concluded that the application for leave to appeal should be heard by the Full Court at the same time as the hearing of the substantive appeal.

7. The first application before me today in effect seeks to set aside that order. I cannot, of course, make an order contrary to an order of the Full Court.  I am, of course, bound by any order of that court. For that reason alone, the first application has to be refused.

8. However, there is another, perhaps less meritorious, reason for refusing the application and that is that I agree with the order of the Full Court. It seems to me that the Full Court will first have to determine whether the plaintiff has a right of appeal to the Full Court. If the plaintiff is entitled, as of right, to appeal to the Full Court, then the Full Court must hear the appeal and decide the appeal on its merits.

9. If, on the other hand, the plaintiff does not have an appeal as a right, then it is probably likely that the Full Court would not determine the appeal on the merits.  If the plaintiff does not have an appeal as of right, the Full Court would then determine the question of whether or not leave should be granted to appeal from my decision allowing the appeal from the Magistrates Court.

10. In those circumstances, the Full Court will apply different criteria. It will consider whether leave should be granted having regard to the matters in rule 94.01 of the Supreme Court rules.

11. For those reasons, I refuse the first application.

12. The second application is, as I say, for security for costs. My written judgment was delivered on 21 December 2000, and the plaintiff’s application for leave to appeal to the Full Court was filed on 4 January 2001. Due to leave commitments I was unable to hear that application until 20 February 2001, and on that day I refused leave to appeal.

13. The plaintiff filed its notice of appeal on 22 February 2001. It, therefore, reacted promptly to both the original judgment and my refusal to grant leave. I note, however, in passing, that the notice of appeal does not seek an extension of time within which to appeal, which I would have thought would be required under rule 95.

14. In any event, the plaintiff applied to the Full Court seeking leave to appeal from my refusal to grant leave on 15 March 2001.  That application was considered and on 2 April 2001 the application was referred to the Full Court hearing the substantive appeal.

15. There can be no criticism, in my opinion, of the plaintiff’s responses to the various orders which had been made adversely to it.

16. On the other hand the application for security for costs was not made until 24 May 2001.

17. In the period between 2 April and 24 May, the plaintiff sought the co-operation and agreement of the defendants to the proposed index for the appeal books.  That co-operation was not forthcoming because the defendants were intending to make these applications.  I am not criticising any of the parties in respect of those matters, I merely mention them.

18. It seems to me, however, that the defendants ought to have applied for security for costs if so advised, very shortly after the notice of appeal was lodged. The defendants were aware, at that stage, that it was the plaintiff’s contention that it had an appeal as of right.

19. In those circumstances, having regard to the history of this matter, the defendants ought to have been aware that it was likely that the plaintiff would, if leave to appeal was refused, prosecute its claimed right of appeal.

20. In any event, even if there had not been delay, in my opinion this is not a matter for security for costs. Rule 95.13 provides:

    “Without restricting the generality of the jurisdiction powers and authority conferred on the Full Court by the Act or by any other enactment, the Court, when dealing with proceedings under this Rule;

    (a)     …

    (b)    may, if there are special circumstances, order that such security, as the Court thinks fit, be given for the costs of the appeal.

    (c)    …”

21. The plaintiff has paid the amount payable under the judgment. The defendants have not sought from the plaintiff the cost orders in the defendant’s favour in this Court. There is no reason to think that the plaintiff would not be in a position to satisfy any order for costs on the appeal.

22. Mr White has argued, however, that there is a real risk that if the plaintiff is wrong about its contention that it has a right of appeal, the defendants will be put to the cost of preparing for an argument on the merits of the appeal in circumstances where that argument is never heard. He suggested that the Full Court might first determine that there was no right of appeal, and then secondly determine that leave to appeal should not be granted because the matter did not come within rule 94.01. In those circumstances, he contended that there was a real risk that the defendants could be put to the cost of preparation for an appeal on the merits, which will never be heard.

23. There is a possibility that the matter will proceed in the way that he has mentioned and that the Full Court will determine that the plaintiff has neither a right of appeal, nor should be given leave. In those circumstances, the Full Court will not hear the appeal on its merits. However, if that occurs, I would have thought there could be little doubt that the defendants would be entitled to the costs of the appeal.

24. An order for security of costs will not put the defendants in any better position in relation to the obtaining of those costs.

25. The purpose of an order for security for costs is simply to secure in advance an order which may be made in relation to costs. The purpose of security is to ensure that if costs orders are made, they can be met.

26. In this case, as I have said, even if the costs orders were made, there is no evidence before me that the plaintiff would not be in a position to meet the costs orders.

27. In those circumstances the application for security for costs is also refused.