Tindall v. Lee
[2007] QSC 132
•5 June 2007
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
[2007] QSC 132
FRYBERG J
No 10474 of 2002
| MERVIN PETER TINDALL | Plaintiff |
| and | |
| DAVID ERIC LEE and LESLIE MAREE LEE | Defendants |
BRISBANE
..DATE 05/06/2007
ORDER
HIS HONOUR: This is an application for security for costs brought by the defendants against the plaintiff in these proceedings. The proceedings were commenced by a claim in November 2002. Very little happened between then and earlier this year when the matter came to the attention of the Court as a result of the case flow management process of the Court. At that time the Court made orders designed to reactivate the proceedings.
The application is brought under Rule 671(c) of the Rules which provides that the Court may order security for costs only if the Court is satisfied.
(c) The address of the plaintiff is not stated or is
misstated in the original process unless there is reason
to believe that this was done without intention to
deceive.
In the present case the plaintiff asserts that, by reason of
the discretion in the Court, it ought to refuse security on the ground of delay but accepts that as far as paragraph (c) is concerned, the only issue is that which arises under the exception unless there is reason to believe et cetera and that in relation to that clause, the onus lies upon the plaintiff.
The structure of the rules in relation to security for costs is to confer a discretion upon the Court to order security for
costs but subject to the provisions particularly of Rule 671 and 672.
Not all of the discretionary factors listed in Rule 672 will necessarily apply to each of the items set out in Rule 671. It seems to me that the question of impecuniosity is an issue which in the present case is not relevant to the application brought under paragraph (c) of Rule 671.
Rule 671(a) and (b) are conditioned upon there being reason to believe that the plaintiff will not be able to pay the defendant's costs if ordered to pay them but paragraph (c) is not so conditioned.
As to the question of delay, it is material to note that the defendants do not seek security for any costs incurred up to the present time. The security is sought only for costs to be incurred in the future and, it is unnecessary to say, to be incurred consequent upon the action having been revived at the behest of the plaintiff. I would not have been prepared to make an order for security for costs incurred in the past. However, it seems to me reasonable to disregard delay in the past given the plaintiff's revival of the action recently and to, in the light of the order of Justice Atkinson, to consider the action as though it is starting afresh.
In my judgment, the issue of delay therefore does not provide a reason why the order should not be made. The question then becomes whether there is reason to believe that the misstatement of the address of the plaintiff was done without intention to deceive.
It is perhaps regrettable that the evidence of the plaintiff does not address some of the issues that bear upon this point. There is an affidavit from Mr Solomon, the plaintiff's solicitor, or more accurately a solicitor with the firm acting for the plaintiff, who presently has the conduct of the plaintiff's file. Mr Solomon was cross-examined and it emerged on evidence that he did not have the conduct of the file when the claim was commenced which appears to have been the time when the firm began to act for the plaintiff. At that time the firm was known as Baker Johnson, Lawyers and the conduct of the file was in the hands of Mr Michael Baker.
Mr Solomon was unable therefore, from his own knowledge, to give evidence of why the residential or business address of the plaintiff was not given in the claim and was unable to say what precisely Mr Baker may have obtained from Mr Tindall as such information, if anything. Although he is able to contact Mr Baker, Mr Solomon has made no attempt to do so and no evidence from Mr Baker has been put before me.
Mr Solomon did suggest that it seems to have been a practise in the firm not to give appropriate addresses in claims but that hardly justifies the conclusion that the omission was without intention to deceive.
Mr Solomon, also in cross-examination, was unable to think of any reason why, after he took over the file and letters were written by the defendants' solicitors pointing out the deficiency and asking for the residential or business address of the plaintiff, he would not have sought such information. I cannot think of any reason why he would not have done it either. I would infer, in fact, that he did ask for this information and that he has been aware of the address since, at least, March of this year. Despite this, the address was only provided to the defendants in an affidavit served late yesterday and there has been no time for them to verify its accuracy.
The need for verification is perhaps unusual but it does seem a reasonable step to take in the light of the fact that on a previous occasion, Mr Tindall made an affidavit in which he identified his address as being 2373 Ipswich Road, Oxley.
...
HIS HONOUR: Mr Smith referred to the plaintiff's affidavit sworn on the 16th of March this year where that address was given. He deposed that he had inspected the premises at that address and spoken to the proprietor of them. They are evidently business premises but the plaintiff is and was unknown at them and has been so for some time. He is unknown at them by a number of the aliases which he uses. The plaintiff did not address this issue in his evidence.
Another matter which, I think, is of considerable concern is the plaintiff's failure to bring these proceedings in his own name. The evidence put before the Court today discloses that the plaintiff changed his name by certificate under the Births, Deaths and Marriages Registration Act 1996 of South Australia a little under two months prior to commencing the present proceedings. The plaintiff's new name is Robert John Rzeszkowski.
On behalf of the plaintiff, Ms Anderson sought to explain the commencement of the proceedings in a false name by suggesting that Tindall was the name which was known to the defendants and that that would be why the name was used by the plaintiff. That does not seem to justify what was done. It certainly does not advance the plaintiff's attempt to demonstrate a reason to believe that the misstatement of the address was done without intention to deceive.
The solicitors failure to respond to letters requesting the plaintiff's address is a matter to which I have already referred.
When one seeks evidence which would be convincing as to the matters set out in paragraph (c) (that is the absence of any intention to deceive), one simply is left without any solid evidence which would found the conclusion sought to be drawn.
In short I am not satisfied that the exception set out in paragraph (c) is demonstrated.
I am satisfied that in the circumstances of the case and having regard to the nature of the proceedings, the dubious nature of the plaintiff's claim; the delays which have occurred in the prosecution of the claim to the point where it only exists by reason of the case flow management order made recently and the fact that an order for security for costs would, on the plaintiff's own evidence, be neither oppressive nor likely to stifle the proceedings, it is appropriate that the order should be made.
...
HIS HONOUR:
I order that the plaintiff give security for the
defendant's costs of these proceedings up to and including the fourth day of trial in the sum of $82,200 by way of payment into Court within 28 days of the making of this order or otherwise to the satisfaction of the Registrar.
I order that until such security be given, the
proceedings be stayed.
I grant liberty to the defendants to apply in respect of
security for costs in respect of proceedings beyond the
fourth day of trial.
...
HIS HONOUR: In my judgment the fourth order should be:
That the plaintiff pay the defendants' costs of the
application to be assessed.
The defendants seek indemnity costs. However, it seems to me that not enough is shown to warrant the ordering of indemnity costs. In particular my finding has been based on the failure of the plaintiff to satisfy the onus of proof upon him. I have not positively made findings of a weight sufficient to warrant indemnity costs and in the absence of any cross-examination of the plaintiff to establish such matters, it would not, in my judgment, be warranted to make an order for indemnity costs.
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