Topez v Adnyamathanha Traditional Lands Association (Aboriginal Corp) RNTBC (No 2) - [2018] SADC 46

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
TOPEZ v ADNYAMATHANHA TRADITIONAL LANDS ASSOCIATION (ABORIGINAL CORP) RNTBC & ORS (No 2)
[2018] SADC 46
Judgment of His Honour Judge Dart
7 May 2018
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SECURITY FOR COSTS
Appeal dismissed - action dismissed automatically by operation of Rule 194(6) - plaintiff applies to reinstate the action.
Held: Action reinstated.
Supreme Court Civil Rules 2006 r 117(3), r 194(6), r 194(8), referred to.
Psevdos v Commonwealth Bank of Australia [2018] SASC 9, considered.

TOPEZ v ADNYAMATHANHA TRADITIONAL LANDS ASSOCIATION (ABORIGINAL CORP) RNTBC & ORS (No 2)
[2018] SADC 46
JUDGE DART:

An issue has arisen in respect of an appeal from a decision of a Master. The Master, on 12 July 2017, made an order that the plaintiff (appellant) provide security for costs in the amount of $75,000. An order was made on that day staying the proceedings pending the provision of the security for costs. The plaintiff appealed the security for costs order. Before the appeal could be heard the Court dealt with the defendants’ application FDN46 which sought security for the costs of the appeal. That application was dismissed. The appeal came on for hearing on 19 September 2017 and judgment was reserved.
The Court’s power to award security for costs is contained in Rule 194. Relevant to the issue here is sub-rule (6), which provides that an action is dismissed for want of prosecution if it has been stayed for a period of six months. The dismissal is automatic. Six months from the making of the Master’s order was 12 January 2018. The reasons for judgment dismissing the plaintiff’s appeal were provided to the parties after 12 January 2018.
When the matter came on for the making of final orders in respect of the appeal the defendants noted that, pursuant to the operation of Rule 194(6), the proceedings had been dismissed. The defendants submitted that the Court was not in a position to make any orders at all in respect of the appeal, or any other matter, because the proceeding was no longer extant.
Rule 194(8) provides that the Court may reinstate a dismissed action for special reasons. The plaintiff has made application to reinstate the proceeding. The defendants also seek to reinstate the action. Their position is that the Court cannot make an order dismissing the proceeding and making costs order without first reinstating the action. I am not sure that is correct, but do not need to decide that for present purposes.
Each party therefore seeks reinstatement of the action. The difference between the parties is the end date. The plaintiff seeks further time to pay the security for costs and requests a further six months. The defendants say that the action should be reinstated to the date on which the reasons for judgment were delivered, so that orders can be made dismissing the appeal. That time, of course, has passed, and would not allow the plaintiff an opportunity to repair the position.
The defendants say there are no special reasons that would justify reinstating the proceedings. The current rule commenced operation in 2014. There is not a great deal of authority on what special circumstances means for the purposes of Rule 194(8). I note also that Rule 117(3) provides the Court with a power to extend a time limit even though it has expired.
In Psevdos v Commonwealth Bank of Australia[1] Justice Stanley had to consider an application to reinstate an action where security for costs had not been provided and the action had automatically been dismissed. The factual scenario was quite different from that before the Court in this matter, in that there had been no activity for more than two years after the order for security had been made. His Honour said:[2]
47    What constitutes “special reasons” for the purposes of SCR 296 and 194 has not been authoritatively decided, but the expression is used in other legislation where it has been held that it is constituted by reasons that are extraordinary, unusual or atypical or beyond the contemplation of Parliament.
48    The requirement for “special reasons” as a condition precedent to the exercise of a discretion to permit a party to reinstate an action lies in public policy considerations surrounding the need for finality in litigation. Given the importance of the principle of finality, the rules erect a significant obstacle to the exercise of the Court’s discretion to reinstate an action. Once an action or appeal stands dismissed, parties are entitled to arrange and conduct their affairs accordingly. Courts should not change this situation unless special reasons to do so are found to exist.
[1] [2018] SASC 9.
[2]    Psevdos v Commonwealth Bank of Australia [2018] SASC 9.
It is clear that the requirement for special reasons is intended to be a limitation on the circumstances in which the Court is able to reinstate an action. As Justice Stanley noted, there is a need for finality in litigation.
A concept such as “special reasons” is not capable of exhaustive definition. In the context of Rule 194, it is simply an indicator that, in the ordinary course, an action ought not be reinstated. Everything that a court does is intended to advance the interests of justice. In the present circumstance, therefore, special reasons will be facts and circumstances which, in the interests of justice, require the action to be reinstated. That will often be a balancing act between the respective positions of the opposing parties. The requirement for special reasons is not intended to create an unjust outcome.
The first point to note is that Rule 194(6) is not truly directed at the circumstances that apply here. It is directed at circumstances where, after an order is made, there is no activity in a proceeding, the period of six months passes and there is then a deemed want of prosecution leading to dismissal.
There has been no actual want of prosecution in this matter. Since the Master made the order the defendants prosecuted a contested application for security for costs of the appeal. The plaintiff prosecuted her appeal in respect of the Master’s order. There was considerable activity in the six month period. That takes the matter out of the ordinary and is part of factual circumstances which, in my opinion, gives rise to special reasons.
The other factors to take into account are it was no fault of the plaintiff that the Court did not deliver judgment on the appeal within the six month period. Further, none of the parties appear to have been alive to the position until after the reasons in respect of the appeal were delivered. It does not seem to be a just result that the plaintiff is disentitled to pursue her claim in those circumstances. I am satisfied that special reasons exist to reinstate the action.
I am further satisfied that Rule 117(3) permits the Court to extend or vary the time period provided for in Rule 194(6), after which the action is to be automatically dismissed. I propose to make an order reinstating the action and vary the date after which the action will be dismissed.
The question is, what is an appropriate date, having regard to the interests of both parties? A considerable time has passed since the Master made the order. The plaintiff seeks to start the six month period afresh. In my opinion, that is not appropriate. The plaintiff says that she has a third party able to provide the funds, but requires a lengthy extension. It is necessary to consider the lengthy and unfortunate history of litigation between these parties. Part of that history is the fact that the plaintiff is a bankrupt because she was unable or unwilling to pay an agreed settlement sum to the defendants in other litigation. The Court can have no confidence that the plaintiff will provide the security.
In my opinion, the justice of the situation requires that the plaintiff be provided a short further period to provide the security for costs. If she does not do so, the proceedings will be dismissed automatically for the final time.
The orders of the Court are:
1The action is reinstated.
2The time limit provided for in Rule 194(6) is extended until 1 June 2018.
3The plaintiff is to pay the defendants’ costs of and incidental to the appeal.
4The appeal is certified fit for counsel.
5The defendants are entitled to have the costs of the appeal adjudicated upon forthwith.
6The defendants are entitled to proceed to enforce any allocatur which they obtain after the adjudication of the costs of the appeal.
7The costs of FDN46 are reserved.