Webster and Another v Lampard

[1993] HCA 20

HIGH COURT OF AUSTRALIA

Toohey J.

ANTHONY REGINALD WEBSTER AND ANOR v. DAVID LAMPARD

(1993) 112 ALR 174

26 March 1993

Decision

TOOHEY J. On 16 October 1992 the Court granted the appellants special leave to appeal from the judgment of the Full Court of the Supreme Court of Western Australia on 3 June 1992. The appeal is listed for hearing in Canberra on 29 April 1993.

2. On Thursday, 23 March I heard an application by the respondent that the appellants provide security for the respondent's costs of the appeal. That application was opposed. Some brief reference to the history of the application is called for. The chamber summons was filed in the Perth office of the High Court Registry on 5 January this year. It was accompanied by an affidavit in support which was not filed, apparently because it did not comply with the High Court Rules. An affidavit in proper form was filed on 15 January. There followed a period of some confusion as to the location of the summons and it was not until the beginning of this month that a hearing date was fixed. The summons and affidavit were served on the appellants' solicitors on 3 March. In so far as the question of delay was relied upon by the appellants in answer to the application, it would be fair to say that the respondent had put himself in a position to seek a hearing date for the application by the middle of January, that is, about three months after the grant of special leave. On the other hand, the appellants have justifiably been preparing for the hearing of the appeal. Appeal books have been filed and counsel has been engaged to argue the appeal.

3. The appellants would be unable to comply with an order for security for costs. They have obtained a stay of costs orders made below and they are legally aided for the pending appeal.

4. Order 70 r.7(1) of the High Court Rules empowers a Justice to order an appellant to give security "for the prosecution of the appeal without delay and for the payment of such costs as may be awarded ... to the respondent". The sub-rule is cast in the most general terms; no criteria are prescribed according to which security may be ordered or refused.

5. Speaking of O.70 r.7(1), Gaudron J. said in Dillon v. Baltic Shipping Co. ((1) (1991) 65 ALJR 647, at p 649; 102 ALR 482, at p 486.):

"Perhaps the matter most likely to result in an order for security is that the appellant, if unsuccessful, will be unable to pay the costs of the appeal."

At the same time her Honour recognised that "(t)he decision is one involving a discretionary judgment and the matters to be taken into account are not confined" ((2) ibid).

6. With these observations there can be no quarrel ((3) See also King v. Commercial Bank of Australia Ltd. (1920) 28 CLR 289, at p 292; Lucas v. Yorke (1983) 58 ALJR 20, at p 21; 50 ALR 228, at p 228.). Nevertheless, the sub-rule presents something of a dilemma. In effect the respondent argued that impecuniosity of an appellant provides a prima facie justification for ordering security for costs, to be displaced only by some disqualifying conduct on the part of the respondent such as delay or because the respondent's actions brought about the impecuniosity. Such an approach would fetter unduly the discretion which the sub-rule undoubtedly reposes in a Justice and would place too great an obstacle in the path of worthy appellants. The existence of any such prima facie rule was rejected by Brennan J. in Lucas v. Yorke ((4) (1983) 58 ALJR, at p 21; 50 ALR, at pp 228-229.) and is contrary to the general approach taken by courts when asked to order security for the costs of an appeal ((5) See the discussion by Hill J. in Fletcher v. Federal Commissioner of Taxation (1992) 110 ALR 233.). On the other hand, if impecuniosity does not provide justification for ordering security, in what circumstances is the making of such an order warranted?

7. Power in the Court to order security for the costs of an appeal originated with s.35 of the High Court Procedure Act 1903 (Cth). The provision, which is now O.70 r.7(1), takes on a particular character when viewed with the special leave requirements to be found in s.35A of the Judiciary Act 1903 (Cth). Where there is an appeal as of right (albeit some monetary requirement), it is more appropriate to consider the merits of the appeal where security for costs is sought. An appeal may appear to have little merit, in which case a court will be more disposed to order security. But, as things now stand, it is hard to say that an appeal to this Court that has passed the scrutiny of s.35A has no merit. By definition, it has met the requirements of that section. In Devenish v. Jewel Food Stores Pty. Ltd. ((6) (1990) 64 ALJR 533, at p 534; 94 ALR 664, at p 666.) Mason C.J. took into account in refusing an order for security for costs that "the case is one of public importance". Many matters in respect of which special leave to appeal to this Court has been granted are of public importance. In particular, this appeal raises questions of importance touching the civil liability of police officers and others in government employ for their actions and truly travels beyond the particular circumstances affecting the parties.

8. As has been said earlier, the existence and operation of s.35A of the Judiciary Act tend to remove one of the elements that might otherwise support an order for security for costs. This approach might be thought to act against the interests of respondents, especially when, as here, the appellant is legally aided. There is force in this observation but, equally, appellants who have persuaded the Court that their applications for special leave to appeal warrant a grant ought not lightly to be shut out because of their financial position. It has been the general approach of the courts that poverty should not bar litigants. However, a discretion to order security for costs in cases where special leave has been granted does exist. Such an order is more likely to be made against a foreign corporation, especially if the corporation does not possess assets within the jurisdiction ((7) See PS. Chellaram and Co. v. China Ocean Shipping Co. (1991) 65 ALJR 642; 102 ALR 321; Dillon v. Baltic Shipping Co., where in each case the appellant was a foreign company which, in the first case, was insolvent and where, in the second case, its financial position was unclear. In each case there was an order for security for costs.). But there may be other circumstances as well.

9. In the end I am persuaded that there should not be an order for security for costs in the present case. I reach this conclusion in the light of the general considerations discussed in this judgment, reinforced by the fact that the hearing of the appeal is only some five weeks away. I should make it clear that I am not refusing an order merely because the respondent did not move quickly enough. But, at this stage, it is not possible to ignore the proximity of the appeal and the work already done by the appellants.

10. I therefore refuse the application. There will be an order that the costs of the application be the appellants' costs in the appeal.

Orders

Application dismissed.

Order that the costs of the application be the appellants' costs in the appeal.