Shenton v Commonwealth of Australia
[2005] WASCA 96
•1 JUNE 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SHENTON -v- COMMONWEALTH OF AUSTRALIA [2005] WASCA 96
CORAM: WHEELER JA
PULLIN JA
HEARD: 16 MAY 2005
DELIVERED : 1 JUNE 2005
FILE NO/S: FUL 163 of 2004
FUL 168 of 2004
BETWEEN: RICHARD LAURENCE SHENTON
Applicant
AND
COMMONWEALTH OF AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MASTER SANDERSON
File No :CIV 1648 of 2004
Catchwords:
Practice and procedure - Application for leave to appeal against order for security for costs - Leave refused - Turns on own facts
Legislation:
Nil
Result:
Application for leave to appeal dismissed
Category: B
Representation:
Counsel:
Applicant: In person
Respondent: Mr A R Beech SC
Solicitors:
Applicant: In person
Respondent: Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bride v The Australian Bank [1999] WASCA 88
Brown v Chapman (1848) 6 CB 364
Coyne v West Australian Newspapers Ltd (No 1) (1996) 15 WAR 51
House v The King (1936) 55 CLR 499
Merribee Pastoral Industries Pty Ltd v Australia & New Zealand Banking Group (1998) 193 CLR 502
West v Smallwood (1838) 3 M & W 417
Willey v Synan (1935) 54 CLR 175
Case(s) also cited:
Biggs v Director of Public Prosecutions (1997) 17 WAR 534
Cameron v Cole (1944) 68 CLR 571
Western Australia v Bond Corp Holdings ltd (1991) 5 WAR 40
WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Pullin JA. I agree with those reasons and have nothing to add.
PULLIN JA: This is an application for leave to appeal against the order of Master Sanderson requiring the applicant to provide security for costs in the sum of $10,000. The order for security was made on 8 September 2004.
The applicant must show that the Master's decision is attended with doubt and that substantial injustice would be done if the decision is not set aside.
The background to this case is that on 18 February 2004, McKechnie J authorised the issue of a warrant to arrest the applicant pursuant to r 34 of the Criminal Procedure Rules 2000. When arrested he was released on recognisance. Justice McKechnie referred a question about the validity of r 34 to the Full Court. That came on for hearing before the Full Court on 16 April 2004. Those proceedings came to an end because the applicant undertook to the Full Court that he would appear in answer to a subpoena to give evidence when required and the warrant which resulted in his arrest was then discharged by consent. No other orders were made by the Full Court.
On 13 May 2004 the applicant issued a writ in CIV 1648 of 2004, naming the respondent as the defendant to those proceedings. A statement of claim was indorsed on the writ and it read:
"1) The plaintiff was arrested and imprisoned by officers Stanley and Leticia of the Australian Crimes Commission on Thursday 19 February 2004 acting on an arrest warrant issued by McKechnie J on 18 February 2004 under rule 34 of the Criminal Procedure Rules 2000 in the matter of INS 80 of 2003 and when brought before his Honour after spending time in the cell was subjected to a substantial recognisance for 58 days until it was overturned by the Full Court on 16 April 2004
2) The plaintiff alleges that the officers of the Australian Crime Commission withheld information from the Commonwealth DPP and or the Honourable Judge in the hearing of the rule 34 matter or in the alternative conspired with the DPP to withhold that information which if known to the Judge would have meant that the use of rule 34 would not have
been available or the Judge would not have granted its application
3) The plaintiff alleges that the facts presented in the affidavit of Allen Laurence Troy in the application for the rule 34 on 18 February 2004 did not reflect the true state of affairs to the Judge. The affidavit was false or misleading and gave the wrong impression to his Honour
and the plaintiff claims
1) that rule 34 of the Criminal Procedure Rules 2000 is ultra vires and the plaintiff seeks the matter determined by the Full Court as previously requested by McKechnie J on 15 March 2004
2) in the event that the courts decide that rule 34 is ultra vires then the plaintiff seeks damages for wrongful arrest and imprisonment and forced recognisance and/or alternatively,
3) damages for the conspiracy/incompetence and the withholding of information by the various officers acting for the Commonwealth previously referred to in the matter of INS 80 of 2003 and the subsequent use of rule 34 of the Criminal Procedure Rules 2000
3) such further or other relief as the court deems necessary or appropriate, and
4) costs"
The applicant applied to have the case entered into the Expedited List. This was heard on 1 June 2004 and the application was dismissed. During that application the applicant said that the statement of claim had to be amended.
On 14 June 2004 the respondent filed a summons seeking the order for security for costs.
On 22 June 2004 there was a status conference conducted before Registrar Dixon. The applicant was in attendance as was counsel for the respondent. Counsel for the respondent reported that a chamber summons had been issued seeking an order for security for costs, that that application had been before the court and had been adjourned to 15 July. Counsel for the respondent also reported that the respondent considered the statement of claim to be unsatisfactory and that the applicant had indicated to him that he proposed to file an amended statement of claim by 12 July 2004. The applicant agreed that was so. There was then discussion about whether the status conference should be adjourned to a fixed date or adjourned sine die. The applicant was informed that if an order for security was made, that the action would be stayed. The applicant urged that the conference not be adjourned sine die because he said the security for costs applications would not delay progress because, if security for costs was ordered, he would put it up. He said, to quote from the transcript:
"Okay, but what I'm suggesting to you, sir, if the security for costs was successful, then I would have to put it up and I will be putting it up. If its not successful, then I would not have to put it up and we continue in any event."
Notwithstanding this submission, those proceedings were then adjourned sine die.
On 15 July 2004 the application for security for costs came on for hearing before Master Newnes. Counsel for the respondent informed the court that the applicant had said he would put up security if ordered. The applicant responded to this by saying that he did not have money to put up by way of security. As a result the matter was adjourned on the basis that the applicant would have three weeks to file and serve a handwritten affidavit. The application was then adjourned to 20 August 2004. No affidavit was filed by the applicant. I should also add that no application has been made to amend the statement of claim. I assume that when the case came on for hearing on 20 August 2004 it was again adjourned to a special appointment.
The respondent's application for security for costs came on for full hearing before Master Sanderson on 8 September 2004.
The grounds for the application were that the applicant was an undischarged bankrupt and that the applicant had refused a request that he agree to provide security for costs. There was no dispute that the applicant was an undischarged bankrupt. The Master made the order as asked on that day.
The proposed grounds of appeal are that:
"1)The Master was wrong in law in his interpretation of order 25 rule 1 and 2(d)
2)The Master erred in the exercise of his discretion in ordering security for costs
3)The Master's order for security of costs is in direct contrast to current case law and its interpretation and consequently should be set aside"
The respondent has also filed a notice of contention pursuant to O 63 r 9(2) contending that the decision of the learned Master should be affirmed on grounds in addition to those relied upon by the Master, namely by taking into account:
"(a)the conceded inadequacy of the statement of claim annexed to the writ, and
(b)the absence of any amended statement of claim."
No substantial injustice
As set out above, the applicant said at the status conference that if security were ordered, that he would put it up. Subsequently, he denied that he would be able to do so and was given the opportunity to file an affidavit. As also mentioned above, no such affidavit has been filed. The applicant again asserted from the Bar table on the hearing of this application that he would be unable to pay any security but in the absence of an affidavit no account can be taken of that assertion.
The result is that no evidence has been proffered that the applicant will not be able to arrange for moneys to be paid by way of security for costs. The mere fact that the applicant is bankrupt does not mean that he will not be able to arrange for the payment of the moneys ordered. The applicant has therefore failed to establish that there will be injustice if the Master's decision is not reversed.
Exercise of discretion
I now turn to the grounds of appeal.
The grounds do not identify what the appellant alleges was wrong in the Master's view of O 25, the manner and respect of which the Master erred in the exercise of his discretion or the cases which are said to be contrary to the exercise of the Master's discretion. The Master was exercising a discretion and it is not enough that the court on appeal would have taken a different course: House v The King (1936) 55 CLR 499 at 504 ‑ 505.
In his submissions the applicant alleges that the Master did not give enough weight to whether the "appellant was really the defendant in the action", whether the "matter of the legality of r 34" of the Criminal Procedure Rules was "more important to resolve than the security of costs" and that "every plaintiff must have an opportunity for his day in court regardless of his financial position." I will deal first with the applicant's submission that he was "really the defendant in the action". It is true that if a person is bringing an action and is defending himself or herself against the defendant's prior action, that security will not be ordered. See for example Willey v Synan (1935) 54 CLR 175 at 185. However, this is not such a case. The plaintiff has chosen to commence proceedings claiming damages for false imprisonment in circumstances where the arrest and detention was pursuant to a warrant issued by the court. I therefore reject the submission that the plaintiff is "really the defendant".
Secondly, the applicant submits that the validity of r 34 is "more important to resolve than the security of costs". He submitted that the point was one of public importance. Behind that submission is an implied contention that the applicant cannot provide security for costs and if he cannot do so, then the issue about the validity of r 34 will not be examined. However, I have held already that there is no evidence before the court to allow it to conclude that the applicant will not be able to provide security.
Reference was made in the applicant's submissions to Coyne v West Australian Newspapers Ltd (No 1) (1996) 15 WAR 51, where Steytler J (as he then was) said that bankruptcy was enough to enliven the discretion provided for by O 25 r 2(d), but this alone was not ordinarily sufficient, in a case where the plaintiff is not a nominal plaintiff and is unable to provide security requested of him, to exercise the discretion in favour of the defendant. This view was approved in Bride v The Australian Bank [1999] WASCA 88 by Wallwork and Miller JJ (Wheeler J as she then was, dissenting on this point). In both Coyne's case and Bride's case, the plaintiff had placed material before the court showing that he was unable to provide any security. That is not so in this case.
The prima facie merits of the applicant's claim are relevant to the exercise of the discretion: see O 25 r 3(a). In Coyne's case, Steytler J concluded that there was at least enough in the statement of claim to warrant the action going to trial. In this case I am unable to conclude that the applicant has a prima facie case. The only information I have about the applicant's case is the statement of claim. It asserts that r 34 was ultra vires and that if that contention is upheld, then there should be a declaration to that effect and that in consequence the applicant's arrest and detention was wrongful, giving him a right to damages for wrongful imprisonment. The allegation is that the officers of the Australian Crime Commission arrested and detained the applicant. However, it is clear that they did so pursuant to a warrant issued by the court. A person applying for a warrant is not liable for damages for false imprisonment because the court is not the agent of the prosecutor. This is so even if the court exceeds its authority: Brown v Chapman (1848) 6 CB 364; West v Smallwood (1838) 3 M & W 417.
If the applicant seeks to advance other causes of action based on malicious prosecution or conspiracy, it would be necessary to set out the material facts to support such claims. The general assertions in the statement of claim about conspiracy and the withholding information from McKechnie J are not sufficient. The applicant has conceded that the statement of claim is deficient and has not made any move to amend it despite stating that he would do so.
For those reasons the applicant has not satisfied me that he has a prima facie case.
The applicant refers also to Merribee Pastoral Industries Pty Ltd v Australia & New Zealand Banking Group (1998) 193 CLR 502. That case concerned the inherent jurisdiction of the court to order security, there being no applicable rules of court. At 513 ‑ 515 Kirby J offered a summary of the considerations relevant to the exercise of discretion, but none of them compel a conclusion that the order for security in this case was an erroneous exercise of discretion.
Finally, the applicant contended that there was delay in bringing the application. The chronology of events shows that the application was made promptly.
In my opinion the Master's decision is not attended with any doubt and it has not been shown that injustice would be done if the decision were not set aside. I would dismiss the application for leave to appeal.
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