Trade Practices Commission v Tubemakers of Australia Ltd

[1983] FCA 93

Re: VALERIA CIAPPINA
And: ANGELO CIAPPINA (1983) 70 FLR 287
No. ACT G81 of 1982
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

A.C.T. DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Practice and procedure - Costs - Security for costs of appeal - Impecunious appellant - Matters to be considered in deciding whether to order such an appellant to provide security - Quantum of security - Federal Court of Australia Act 1976, s. 56 - Federal Court Rules, Order 52 Rule 20.

Harlock v. Ashberry (1881) 19 Ch. D. 84

Brundza v. Robbie & Co. (No. 2) (1952) 88 C.L.R. 171

Scerri v. Northam Holdings Pty. Ltd. (1967) V.R. 674

Smail v. Burton (1975) V.R. 776

Kardynal v. Dodek (1978) V.R. 414

Rajski v. Computer Manufacture & Design Pty. Ltd. (1982) 2 N.S.W.L.R. 442

Practice - Costs - Security for costs of appeal - Impecunious appellant - Legal aid - Whether special circumstances justifying order for security - Quantum of security - Federal Court of Australia Act 1976 (Cth), s. 56 - Federal Court Rules, O. 28, r. 3; O. 52, r. 20.

HEADNOTE

The respondent applied to the Federal Court of Australia seeking an order pursuant to s. 56 of the Federal Court of Australia Act 1976 (Cth) and O. 52, r. 20 of the Federal Court Rules against the appellant in a pending appeal to this Court to give security for the payment of costs that may be awarded against her in that appeal.

Held: (1) The impecuniosity of the appellant resulting in her inability to pay the costs of an unsuccessful appeal amounts to a special circumstance justifying an order for security.

Harlock v. Ashberry (1881) 19 Ch. D. 84; Kardynal v. Dodek (1978) V.R. 414, referred to.

(2) The circumstance that the appellant is a legally aided person does not preclude the making of such an order.

Scerri v. Northam Holdings Pty Ltd (1967) V.R. 674; Smail v. Burton (1975) V.R. 776; Rajski v. Computer Manufacture and Design Pty Ltd (1982) 2 N.S.W.L.R. 443, referred to.

(3) In the circumstances of the instant case the court ordered that security should be given in the sum of $2,000.

HEARING

Canberra, 1983, May 12, 24. #DATE 24:5:1983

APPLICATION.

Application by the respondent to an appeal pending in the Federal Court of Australia for an order that the appellant give security for the respondent's costs of the appeal.

K. Crispin, for the respondent.

B. Badgery, for the appellant.

Cur. adv. vult.

Solicitors for the respondent: Crossin & Co.

Solicitors for the appellant: Abbott Tout Creer & Wilkinson.

E.F.F.

ORDER

1. The appellant give security to the satisfaction of the Registrar within 28 days in the sum of $2,000.00 failing which the appeal herein is to stand dismissed.

2. The costs of this application are to be the respondent's costs in the appeal.

3. Liberty to apply to either party on 7 days notice.

Orders accordingly.

JUDGE1

This is an application by the respondent to an appeal pending in this Court from a decision of the Supreme Court of the Australian Capital Territory for an order that the appellant give security for the respondent's costs of the appeal in the sum of $8,000.00.

In the Supreme Court the appellant as plaintiff claimed to be entitled to a joint tenancy in a lease from the Commonwealth of Australia of Block 26, Section 20, Division of Duffy on which is erected a house known as 77 Dixon Drive, Duffy. In her amended statement of claim the plaintiff claimed to have acquired a beneficial interest in the property and alleged, that on or about 26 April 1978 the defendant wrongfully procured and induced her to execute a deed and memorandum of transfer transferring her interest in the property to the defendant. It was alleged that this was achieved by undue influence and coercion and under the defendant's direction and because of the trust and confidence she reposed in him.

The matter was contested before the Supreme Court largely as a factual issue. The evidence concerned the domestic relationship between the appellant and the respondent who, although not married, lived together as man and wife from 1970 or possibly earlier. The appellant became pregnant to the respondent towards the end of 1971 and early in 1972 a contract for the purchase of the subject property was entered into. The contract was in the joint names of the appellant and the respondent, the appellant being described as the wife of the respondent. The learned trial judge found that the respondent, who provided the balance of the purchase price apart from the moneys borrowed for the purpose, only agreed to the property being purchased in the joint names so as to mislead the Commissioner for Housing into believing that the parties were married.

Relations between the appellant and the respondent deteriorated and the appellant and her three children by the respondent left the premises sometime in the latter half of 1976. The appellant returned to the premises but subsequently again left. At Easter 1978, after a meeting between the appellant and the respondent, the appellant again returned to the premises and shortly thereafter signed the deed and memorandum of transfer to which I have referred.

The learned trial judge accepted in part the evidence given by the appellant and rejected it in part. His Honour did likewise with the evidence of the respondent. The conclusions to which his Honour came are summarised in the following paragraph from the reasons for judgment:-
"I am satisfied that it was never the intention of the parties that the lease should be acquired beneficially in both names. I am satisfied, in the end, that the only reason that the contract and eventual transfer showed the plaintiff and defendant as joint tenants was to ensure the granting of the loan from the Commissioner for Housing. I do not accept that there was any statement made by the defendant which could have been construed as an agreement that the plaintiff should have a half interest in any house which was purchased. Such an agreement by him would have been, in my opinion, totally out of character. In the circumstances, therefore, were it not for the consideration of illegality to which I will return shortly, I would have been ready to find an implied or resulting trust arising in favour of the defendant in respect of the plaintiff's legal interest in the property. The defendant provided the whole of the purchase price and no presumption of advancement operates in favour of the plaintiff, she not being the defendant's wife. See Allen v. Snyder, (1977) 2 N.S.W.L.R. 685. On those findings, the plaintiff would fail at the threshold as having no beneficial interest in the property. However, the question of illegality has to be considered." His Honour then considered the question of illegality and concluded that, because of her part in the deception of the Commissioner for Housing, the appellant could not succeed "on the basis that as a result of the illegality her interest as joint tenant was vested in her both legally and equitably".

Judgment in the action was given for the defendant, costs following the event. Those costs, which have not been paid, have not been taxed or agreed but have been assessed by the respondent's solicitors in the sum of $10,863.64. There is no material before me on which I can express a view whether this is a realistic figure of what might properly be allowed on taxation as between party and party.

It appears that the appellant had the benefit of legal aid in the proceedings in the Supreme Court. The grant of legal aid, however, does not extend to an indemnity of the appellant in respect of the costs awarded against her. There is evidence before me that the appellant has no significant assets or significant income and that she is not in a position to pay the respondent's costs in the Supreme Court. Since the events giving rise to these proceedings the appellant has married.

The appellant has appealed to this Court on five grounds alleging that the learned trial judge was in error:-
"(a) In holding that there was no agreement between the plaintiff and the defendant that they would hold both the legal and beneficial interests in the house property at 77 Dixon Drive, Duffy in the Australian Capital Territory as joint tenants in equal shares.

(b) Alternatively to (a), in failing to consider whether there was any common intention or arrangement between the plaintiff and the defendant that they would hold both the legal and beneficial interests in the house property at 77 Dixon Drive, Duffy in the said Territory as joint tenants in equal shares.

(c) In holding that the defendant did not promise to the plaintiff in early 1978 that, if the plaintiff signed the Deed of Memorandum of Transfer then in her possession, the plaintiff and the defendant would resume cohabitation and that the defendant would provide shelter and care for the plaintiff and their children for the rest of her life.

(d) In failing to consider whether the plaintiff executed the Deed and Memorandum of Transfer as a result of undue influence or, alternatively, undue pressure or alternatively, duress exercised by the defendant over her.

(e) In holding that the plaintiff was prevented from succeeding in her claim by reason of illegality in the procuration of loan funds from the Commissioner for Housing in the said Territory."

The present application is made pursuant to section 56 of the Federal Court of Australia Act 1976 and Order 52, rule 20 of the Federal Court Rules. Section 56 provides, inter alia, that the Court or a Judge may order an appellant in an appeal to the Court to give security for the payment of costs that may be awarded against him, the security to be of such amount, and given at such time and in such manner and form, as the Court or Judge directs. Order 52, rule 20 provides:
"Unless the Court otherwise directs no security for costs of an appeal to the Court shall be required."
Counsel for the appellant referred to Order 28, rule 3 which sets out a number of circumstances in which the Court may order security for costs but did not contend that the Court's power to order security in respect of costs of an appeal was limited to cases falling within that rule.

There is no doubt that the appellant is impecunious and will be unable to pay the respondent's costs if the appeal fails. She has applied for legal aid to conduct the appeal and a decision on that application awaits consideration of an opinion by junior counsel upon the appellant's prospects of success in the appeal. I was informed that the opinion had become available only on 11 May 1983. It may well be that, unless legal aid is granted, the appeal will not proceed. I should mention that the present application came before Ellicott J. on 14 February 1983 and was adjourned to enable the appellant to obtain counsel's opinion on the prospects of success in the appeal and to put that opinion before the legal aid authorities as one of the matters to be considered in reaching a decision whether legal assistance is to be granted in respect of the appeal. No explanation has been offered to the Court for the delay in obtaining counsel's opinion. I have considered whether I should further adjourn this application but have decided that there are no sufficient grounds for doing so.

Counsel for the applicant (respondent) contended that grounds (a), (b), (c) and (d) in the notice of appeal were untenable as an appellate court would not interfere with the findings of fact of the learned trial judge, dependent as they were on the witnesses' credibility and, at least to some extent, upon the general demeanour and character of the appellant and the respondent as exposed in the witness box. As to the fifth ground of appeal, counsel for the applicant argued that, even if this ground were to succeed, the result would not be that the judgment below be overturned as the findings of fact which the learned trial judge had made would still result in the appellant's claim being unsuccessful.

On behalf of the appellant it was said that an application would be made on the hearing of the appeal for leave to adduce additional evidence though it was recognised that there would be difficulty in convincing the Court that it should accede to any such application.

The provisions of section 56 of the Federal Court of Australia Act 1976 and of Order 52, rule 20 of the Federal Court Rules have already been set out. The language differs from that of comparable provisions in the Rules of the Supreme Court of New South Wales (Pt. 51 r.11 and Pt. 51A r. 9) and the Supreme Court of Victoria (Order 58, rule 20) in that those rules provide for the giving of security in or under special circumstances (see also R.S.C. Order 59 sub-rule 10(5)). Nothing, however, turns on that difference in language in the present case.

It is now well established that the impecuniosity of an appellant resulting in an inability to pay the costs of an appeal should that appeal not be successful amounts to a special circumstance justifying an order for security: Harlock v. Ashberry (1881) 19 Ch. D. 84; Kardynal v. Dodek (1978) V.R. 414. The circumstance that the appellant is a legally aided person will not preclude the making of such an order: Scerri v. Northam Holdings Pty. Ltd. (1967) V.R. 674; Smail v. Burton (1975) V.R. 776; see also Rajski v. Computer Manufacture and Design Pty. Ltd. (1982) 2 N.S.W.L.R. 442.

The Court is bound, however, to examine the whole of the circumstances for the purpose of discovering whether there are factors present in this particular case which may be of importance in determining whether security should be ordered. Counsel for the appellant did not refer to any particular matters except the desire of the appellant to proceed based on her conviction that the learned trial judge had fallen into error. I have taken into account the nature of the points to be raised on the appeal and, in relation thereto, the submissions by counsel for the respondent to which I have already referred.

Taking these matters into consideration I have concluded that the Court should order the appellant to give security for the costs of the appeal.

It remains to consider the question of the amount in which security should be ordered. Little guidance is to be obtained from the authorities on the question. At one time it seems to have been thought that in such a case as this the amount should be very moderate: see Harlock v. Ashberry, (1881) 19 Ch. D. 84 at p. 85: Scerri v. Northam Holdings Pty. Ltd. (1967) V.R. 674 at p. 676. In more recent times, however, courts have had regard to the amount of the costs likely to be incurred by the respondent in contesting the appeal though, as Fullagar J. said in Brundza v. Robbie & Co. No. 2 (1952) 88 C.L.R. 171 at p. 175:-
". . . . . . . . . . in ordering security for costs, the Court does not set out to give a complete and certain indemnity to a respondent: see Aberdare & Plymouth Co. v. Hankey (1888) 32 S.J. 644. It is not, of course, to be assumed that the appellant will fail."

No material was placed before me by way of estimating the costs likely to be incurred by the respondent in contesting the appeal. No skeleton bill of costs was, for example, provided and the Court is left to form a view of what such costs are likely to be based on such knowledge as it has of the issues as disclosed by the reasons for judgment and the notice of appeal.

In the final analysis one cannot be more precise than to say that the Court should fix such sum as it thinks just having regard to all the circumstances of the case. On that basis I think that security should be given in the sum of $2,000.00.

The order of the Court is that the appellant give security to the satisfaction of the Registrar within 28 days in the sum of $2,000.00 failing which the appeal herein is to stand dismissed. The costs of this application are to be the respondent's costs in the appeal. I reserve liberty to apply to either party on seven day's notice.