Willey v Synan

The appeal concerned Samuel Charles Willey, who alleged he found English silver coins totalling £351 5s on board a ship travelling from New Zealand to Australia. Upon arrival in Melbourne, Customs officials seized the coins. The Collector of Customs subsequently issued a notice to Mr. Willey under section 207 of the *Customs Act 1901-1934*, requiring him to commence an action for the recovery of the coins within four months, failing which they would be condemned. Mr. Willey, who was not ordinarily resident in the Commonwealth, commenced an action against Maurice Bernard Synan, the Collector of Customs, for the return of the coins. The Collector applied for security for costs, arguing Mr. Willey's non-residence. Starke J. ordered that Mr. Willey provide security for costs unless he returned to Australia and brought the action to trial within four months. Mr. Willey appealed this decision to the Full Court of the High Court.

The central legal issue before the Full Court was whether Mr. Willey, as the nominal plaintiff, should be required to provide security for the defendant's costs, given his ordinary residence outside the Commonwealth. The court had to determine if, despite being the nominal plaintiff, Mr. Willey was in substance in the position of a defendant, thereby exempting him from the usual requirement of providing security for costs. This involved considering the nature of the proceedings initiated by the Collector of Customs and the plaintiff's response thereto, and whether the substance of the litigation placed Mr. Willey in a defensive posture.

The Full Court allowed the appeal, reversing the decision of Starke J. The court reasoned that the Collector of Customs, by issuing the notice under section 207 of the *Customs Act*, had effectively compelled Mr. Willey to commence legal proceedings to avoid the forfeiture of his property. This action by the Collector placed Mr. Willey in the position of a party being attacked, rather than a party initiating an attack. Applying the principle that security for costs should not be ordered against a party who is essentially defending themselves, even if nominally a plaintiff, the court found that Mr. Willey was substantially in the position of a defendant. Therefore, the usual rule requiring security for costs from a non-resident plaintiff did not apply in these circumstances.