Ross v Crawford - [2020] WADC 117

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   ROSS -v- CRAWFORD [2020] WADC 117
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   13-14 AUGUST 2020
DELIVERED          :   27 AUGUST 2020
FILE NO/S:   CIV 1254 of 2020
BETWEEN:   CLIVE MICHAEL ROSS
Plaintiff
AND
GARY CRAWFORD
Defendant

Catchwords:

Practice and procedure - Application for security for costs - Plaintiff suing in defamation - Plaintiff's assets protected from execution by virtue of his assets being invested in a self-managed superannuation fund - Turns on its own facts

Legislation:

Defamation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Security ordered

Representation:

Counsel:

Plaintiff	:	Mr N Dillon
Defendant	:	Mr A Mataxas

Solicitors:

Plaintiff	:	Origen Legal
Defendant	:	Metaxas Legal

Case(s) referred to in decision(s):

Nil

DEPUTY REGISTRAR HEWITT:

By a writ lodged on 7 April 2020 the plaintiff to this action seeks damages for a number of publications which he alleges were defamatory. The various materials which are before me contain information concerning the publications, and in my view, they certainly have a defamatory flavour to them, although that is not to say there are not defences which may be available to the defendant in regard to those publications.
The plaintiff previously acted in person and although he has done a surprisingly good job of preparing his statement of claim, it is nonetheless deficient in a number of respects. The principal defect is the failure to recite the words of and concerning the plaintiff which are allegedly defamatory. I am also of the view that a number of the imputations said to be drawn from the material are questionable but nonetheless for present purposes, the pleadings are adequate to outline the arena in which this application will be fought.
The particular application with which I am concerned is an application by the defendant seeking security for costs. Exactly what security the defendant seeks is rather difficult to say but I think as a broad estimate anything up to $500,000 seems to be the target in mind.
As a preliminary I was required to deal with strike-out applications concerning a number of paragraphs within the supporting affidavits. After hearing argument on those matters, I have determined that exhibits RJM 3 and RJM5 to the affidavit of Ryan John Moss sworn 20 May 2020 should be struck out and that pars 25 - 29 inclusive should also be struck out. I do not propose to spend any more time discussing these aspects, because in truth they are not particularly relevant to the issue which I am called upon to decide that being whether or not the plaintiff should be required to give the defendant security for costs in this action.
Such an application is based on the provisions of O 25 of the Rules of the Supreme Court 1971 (WA). In particular, O 25 r 1, O 25 r 2, O 25 r 3, O 25 r 5 and O 25 r 6 are relevant.
1.The Court may order security for costs to be given by a plaintiff, but no order shall be made merely on account of the poverty of the plaintiff or the likely inability of the plaintiff to pay any costs which may be awarded against him.
2.Without limiting the generality of rule 1 the Court may order security for costs to be furnished where the plaintiff -
(a)is ordinarily resident out of the jurisdiction, notwithstanding that he may be temporarily within the jurisdiction;
(b)is about to depart from the jurisdiction;
(c)enjoys within the jurisdiction some privilege which renders him immune, wholly or partially, from the normal processes of execution;
(d)is an undischarged bankrupt or a person who has suspended, or given notice of suspension of, his debts;
(e)is a company in liquidation or under official management, or a company in respect of which a receiver of its property has been appointed;
(f)is a relator suing for the enforcement or declaration of some public right or to have some public trust carried out or some charitable scheme settled;
(g)is in default in respect of any costs ordered to be paid by him in any proceedings previously brought by him against the same defendant or another defendant for substantially the same cause of action or in relation to substantially the same subject matter;
(h)is a person who has in the past vexatiously brought litigation against the same defendant or against any other defendant;
(i)is suing the sheriff in respect of anything done or omitted to be done by the sheriff or his officers in the execution of any judgment of the Court.
3.The granting of security shall be in the discretion of the Court, and in determining whether an order should be made the Court shall take into consideration -
(a)the prima facie merits of the claim;
(b)what property within the jurisdiction may be available to satisfy any order for costs against the plaintiff;
(c)whether the normal processes of the Court would be available within the jurisdiction for enforcement of any order for costs made against the plaintiff.
5.In fixing security the Court shall direct the form and manner in which the security is to be given and may from time to time vary the amount and form of the security.
6.Where security is ordered the action or other proceedings shall be stayed until the security is furnished, unless the Court otherwise orders.
Rule 3 requires me to take into consideration the prima facie merits of the claim, what property within the jurisdiction may be available to satisfy any order for costs against the plaintiff and finally whether the normal process of court would be available within the jurisdiction for enforcement of any order for costs against the plaintiff.
I consider firstly the prima facie merits of the claim. I have examined the materials, and in my view, they are prima facie defamatory of the plaintiff. However, that observation is capable of being displaced by the existence of a powerful defence which may be available to the defendant and mounted by the defendant. In that regard, the most prominent defence which is pressed upon me arises under the provisions of the Defamation Act 2005 (WA) (the Act) and in particular, to the existence of an offer to make amends which was not accepted by the plaintiff.
It would appear the parties had agreed the form of apology which would be acceptable to the plaintiff but the plaintiff was dissatisfied with the monetary amount which was offered as part of that process, as a consequence of which the issue was not resolved between the parties. The aspect of the Act which is of importance to the defendant relates to s 18 of the Act, which in effect provides that the failure of a plaintiff to accept a reasonable offer to make amends avails the defendant of a defence against the action brought against him. On that score, the defendant certainly has an arguable defence which he can advance against the plaintiff. Counsel at the bar table indicated there were a number of other defences which he wished to pursue but the materials before me were not convincing as to whether any of the other defences were viable or not.
It will be recalled that O 25 r 1 provides that an order should not be made merely on account of the poverty of the plaintiff. It is also of note that none of the various described points in par 2 are applicable to this plaintiff. What makes this plaintiff different to others is the fact that he is a self-funded retiree. He owns no land in his own name, and as far as I am told, owns no substantial asset within the State of Western Australia. Monies in superannuation are immune from execution and as a consequence, prima facie, although the plaintiff is no doubt able to support himself in a comfortable style, none of the assets which provide for that comfort could be attached by the defendant were it to succeed in a defence of the action.
The plaintiff has gone on oath identifying some undrawn loan facilities in his own and his wife's name to which he would be able to make resort in order to pay any amount which might be due to the defendant by way of costs. He also mentions a substantial sum held by his wife in a Westpac savings account which would likewise be available for use should the need arise. The problem with the propositions that are advanced are that:
1.The loan facility is secured by a mortgage from the wife over a property in her name. She could if she wished to do so simply withdraw from that arrangement with the bank.
2.In execution of a judgment it is not possible to force a party to take out a loan to meet a costs order.
The final position is therefore, that although the plaintiff must have substantial assets from which he derives an income, as a retiree, none of those assets would be available to the defendant should he need to execute to obtain payment and whether or not the plaintiff paid the defendant would entirely be a matter of his own choice and that of his wife. If the plaintiff chose not to pay the defendant, I can see no practical or useful step which the defendant could take in order to recover funds from the plaintiff. It would be simply a matter of whether the plaintiff and his wife decided to pay the defendant or not. Bankrupting the plaintiff would not be productive because once again the superannuation funds would be immune and the cost of bankrupting the plaintiff would be futile and wasted money. I therefore have a position where the plaintiff is pursuing an action in which if he were to fail, whether or not the defendant would be paid his costs would be purely a matter of the plaintiff's discretion and there is no ability of the defendant to force his hand in any way. That is to my mind an unusual circumstance where a party who has access to funds in order to support himself is nonetheless protected from any way in which a successful defendant could recover the costs of defending himself from the action brought by the plaintiff.
In my opinion, that is not a desirable state of affairs and it may well have an impact on the enthusiasm with which the plaintiff might enter negotiations since he is largely protected from an adverse outcome save for his own solicitor's costs. He should as I would put it, 'have some skin in the game'.
I am therefore resolved that the plaintiff should give security for costs and I now turn to consider the appropriate quantum of costs. As I have indicated the defendant seeks anything up to $500,000. There are other figures which have been nominated but it is obvious that the figures put forward by the defendant are just simply plucked from the blue sky. They are not the subject of any kind of serious analysis and I reject them.
Given the nature of the publications and the nature of the defences, I think that the case is not likely to be as complex as it was suggested to me. The facts are virtually not in dispute although there may be some issues surrounding qualified privilege if in fact such a defence gets off the ground. The publication of the allegedly defamatory material is not disputed, an apology in respect of each of the publications has been published by the defendant. What is really in issue is whether the amount of money offered is appropriate to the offence which has been caused, there being no suggestion of monetary loss by virtue of these defamatory remarks.
Weighing all these things up I am of the view that security in the sum of $100,000 should be provided by the plaintiff, but I have no fixed opinion about the manner in which such security should be provided and I invite the plaintiff to make submissions as to how my decision could be implemented in the most economical way. The possibilities are of course are bank guarantee, deposit of funds either into court or into a solicitor's trust fund or perhaps even some deed or undertaking by the plaintiff and his spouse.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LF
Court Officer
27 AUGUST 2020