Schenscher v Adelaide Mushrooms (Nominees) Pty Ltd

[2020] SASC 19

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

SCHENSCHER v ADELAIDE MUSHROOMS (NOMINEES) PTY LTD

[2020] SASC 19

Judgment of The Honourable Auxiliary Justice David

13 February 2020

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SECURITY FOR COSTS

Application for security for costs.

The appellant filed a claim against the respondent in the Magistrates Court in February 2012. The primary proceedings were struck out for want of prosecution. The appellant applied to have the proceedings reinstated, but the application was dismissed. The appellant seeks to appeal against this order. The respondent filed an application for security for costs which applies to the hearing of the appeal.

The respondent submits that the appellant should be ordered to provide security for costs given the length of time that has passed since the primary proceedings were commenced and because the appeal is, in effect, an attempt to re-litigate matters previously dismissed. The appellant submits that she is impecunious. She is unable to pay the amount demanded by way of security for costs, and, as a consequence, if security for costs were granted it would, in effect, bring an end to her appeal.

Held; the application for security for costs is dismissed.

Supreme Court Civil Rules 2006 (SA) r 195(1)(g), referred to.

SCHENSCHER v ADELAIDE MUSHROOMS (NOMINEES) PTY LTD
[2020] SASC 19

Application:  Civil

1. DAVID AJ:            This is an interlocutory application filed on behalf of the respondent seeking an order that the appellant pay into Court by way of security for the respondent’s costs of appeal the sum of $19,800. If that order is made, the respondent seeks a further order that the action be stayed until the appellant pays that amount into Court.

   Background

2. The proceedings leading up to this application are long, complicated and unfortunate. The appellant filed a claim for damages in the amount of $40,000 on 15 February 2012. The claim arose from an injury allegedly sustained by the appellant at the respondent’s premises on 27 January 2009. The primary proceedings were dismissed for want of proper prosecution on 25 May 2015. The appellant applied to have those proceedings reinstated and they were so reinstated on 27 April 2016. The primary proceedings were then struck out again for want of prosecution on 28 September 2016, and once again the appellant applied to have the primary proceedings reinstated on 10 April 2018. That application to reinstate the matter was served on the respondent on 22 February 2019 and the application to have the matter reinstated came on before a Magistrate on 16 May 2019. On 11 June 2019, the Magistrate who heard the matter handed down her decision dismissing the appellant’s application. On 27 June 2019 that Magistrate made an order that the appellant pay the respondent’s costs on a party/party basis, and that order was stayed until further order pending the outcome of the proposed appeal.

3. The appellant filed a notice of appeal on 1 July 2019 against the Magistrate’s decision ordering that the proceedings not be reinstated. The present interlocutory application for security for costs applies to the hearing of that appeal.

   Application for security for costs

4. On the material presented to me on this interlocutory application it is clear that the appellant is impecunious. She claims that the injuries sustained as a result of the action which are the basis of the original claim are ongoing, and consequently she is unable to pay the amount demanded by way of security of costs.

5. Pursuant to r 295(1)(g) of the Supreme Court Civil Rules 2006 (SA) this Court has power to order that security be given for the costs of an appeal.  I set out r 295(1)(g):

   295—Powers of Court incidental to appeal or proceeding for permission to appeal

   (1)The Court may exercise any of the following powers in relation to an appeal or an application for permission to appeal—

   …

   (g)     the Court may order that security be given for the costs of an appeal;

   …

6. That rule gives me a broad discretion whether to order security of costs or not for an appeal.

7. The respondent contends that because of the length of time, and because the appeal is an attempt to re-litigate matters that have been dismissed on a number of occasions, in the exercise of my discretion I should make the order sought. The appellant contends that as the original claim is one of personal injuries, and those injuries are ongoing, despite the difficulties if not the possible negligence of either the appellant or her legal advisers in the handling of the original claim, the justice of the matter demands the appeal be allowed to go ahead. It is put to me that if the security for costs is granted that would effectively bring to an end the appeal.

8. I have read carefully the judgment of the Magistrate refusing to reinstate the original claim. Without pre-empting any decision about that judgment that may be made on appeal, I find that the matter is not so clear cut that it is not at least arguable. I find that the impecuniosity of the appellant, although not decisive of the issue, is a matter I take into account in her favour. I also take into account her present physical impairment resulting in an inability to satisfy any order for security of costs that I might make.

9. In the exercise of the discretion given to me, I refuse the respondent’s application for security of costs in relation to the present appeal.