Yumbulul, T. v Reserve Bank of Austraia

[1991] FCA 338

Re: TERRY YUMBULUL
And: RESERVE BANK OF AUSTRALIA; ABORIGINAL ARTISTS AGENCY LIMITED and ANTHONY
WALLIS
No. D G26 of 1989
FED No. 338
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Practice and Procedure - security for costs - impecunious applicant - whether suing "not for his own benefit" - whether suing "for the benefit of some other person" - venue.

Federal Court Rules O.28 r.3(1)(b)

Associations Incorporation Act 1984 (NSW)

Upton and Another v TVW Enterprises Ltd (1984) 57 ALR 361

Andrews v Caltex Oil Australia Pty Ltd (1982) 40 ALR 305

HEARING

SYDNEY

#DATE 4:6:1991

Counsel for the Applicant: Mr J. Peters

Solicitors for the Applicant: Coltmans

Counsel for the Respondent: Mr P.C. Banki

Solicitors for the Respondent: Phillips Fox

ORDER

The motion is dismissed.

The second and third respondents pay the applicant's costs of the motion.

NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

By a notice of motion filed on 21 May 1991 the second and third respondents moved for an order that the applicant provide security for the respondents' costs in the sum of $14,000 or otherwise as the Court may direct. That motion is brought on the basis of O.28 r.3(1)(b) which provides:

"Where, in any proceeding, it appears to the Court on the application

of a respondent -

. . .

(b) that an applicant is suing, not for his own benefit, but for the benefit of some other person and there is reason to believe that the applicant will be unable to pay the costs of the respondent if ordered to do so;

the Court may order that applicant to give such security as the Court thinks fit for the costs of the respondent of and incidental to the proceeding."

1. Evidence has been put before me by way of affidavits sworn by the respondents' solicitor, Mr Banki; a law clerk, Mr Hall; and Mr Wallis, the third named respondent. The material is relied upon to support two contentions, one that the applicant is impecunious and would be unable to meet a costs order if unsuccessful in the proceedings, and secondly that the applicant is suing not for his own benefit but for that of the Aboriginal Arts Management Association, which is an association incorporated under the Associations Incorporation Act 1984 of New South Wales. I was referred to a letter of 4 September 1989 to Mr Wallis, as director of Aboriginal Artists Agency Pty Ltd, from Mr Colin Golvan who is a director of a company called Golvan Arts Management Pty Ltd. Mr Golvan, who has been briefed as counsel for the applicant, wrote in the following terms:
   "I confirm our discussions concerning the proposal to hand over the
   running of the Agency (that being a reference to Aboriginal Artists
   Agency Pty Ltd) to me through my agency company, Golvan Arts
   Management Pty Ltd. I note that it is proposed that your company be
   wound up and that the name Aboriginal Artists' Agency be registered
   by my company as a business name, and my company shall receive an
   assignment of the exclusive licences held by your company. Your
   company shall assign the name and the exclusive licences before being
   wound up.
   I await your response to this proposal.
   I should point out that during the course of the recent copyright
   litigation a number of artists instructed NAALAS to cancel their
   licence agreements with your company. Any further action in this
   regard would be subject to developments as noted above."
   

2. The terms of that letter were contrasted with a prior conversation deposed to by Mr Wallis and said to have taken place between himself and Mr Golvan. In the course of that conversation it was said that Mr Golvan had told Mr Wallis:
   

"Well we intend to challenge the validity of your licences in court. Of course many artists you represent will cancel their licences as a result of my work on the Bulen Bulen case. I am travelling to Arnhemland regularly and can offer them a far superior service on a case by case basis; they can communicate everything they need to by fax direct to my office in Melbourne. If you give up now and hand over all the licences to me there will be no further problems."

The point was also made that the principal activities of the Association are described, in documents filed in the Corporate Affairs Office, in the following terms:

"Provide advice on aboriginal copyright matters Administer funds for litigation on copyright Administer aboriginal arts projects Provide advice on aboriginal art matters"

And in para.6 of the form of application for incorporation, it was said that the income of the association is likely to be $300,000 per annum which is likely to be derived from the following sources:

"Government grants, legal settlements won through court actions,

membership fees, fees for services"

1. It was noted that a copy of the letter from Mr Golvan to Mr Wallis was sent to Mr Lin Onus, who is President of the Association. Counsel for the respondents also relied upon the affidavit of Andrea Elizabeth Gardiner, a solicitor employed by Coltmans, the solicitors acting for the applicant. At para.3 of her affidavit she said that she has taken and continues to take instructions in relation to this matter directly from the Applicant and from no other person. She said that prior to 17 December 1990 funding was provided by Aboriginal Arts Management Association but at all times throughout the conduct of the case, instructions have come directly from Terry Yumbulul.

2. The general thrust of Mr Banki's submissions was that I should be able to infer from this material that there was a probability that the applicant has some arrangement with the Aboriginal Arts Management Association which involves either charging or somehow conferring upon them the benefits or a benefit arising out of this litigation if he were to be successful in it. I accept that it is possible that the Aboriginal Arts Management Association, which it does appear has been involved in the funding of these proceedings, may stand to gain a benefit if the applicant is successful. The extent and nature of that benefit, I am not in a position to infer. Nor can I infer from the material before me that the applicant has assigned, in effect, all interests in the outcome of the action to that Association or any other party.

3. When looking at the terms of O.28 r.3(1)(b), which govern the motion, it is evident that there is a two-fold test, first that the applicant sues "not for his own benefit" and secondly that he sues "for the benefit of some other person". In Upton and Another v TVW Enterprises Ltd (1984) 57 ALR 361 at 362, Toohey J. said:
   

"Sub-paragraph (1)(b) of O 28, r 3, is directed to the situation where an applicant sues, not for his own benefit, but for the benefit of some other person. In my view the use of the expression "for" is not accidental. It is a word which, in many contexts, carries the notion of purpose. In my view it carries that notion in para (b) in the sense that the rule is concerned with proceedings brought in order to benefit someone other than the applicant. No doubt in any case in which an applicant has creditors (and the impecunious applicant may have many), the creditors stand to benefit from a money award in favour of the applicant. But it is a far cry from that proposition to say that the proceedings are brought for the benefit of the creditors and not for the benefit of the applicant."

And that passage reflects a general principle enunciated in Andrews v Caltex Oil Australia Pty Ltd (1982) 40 ALR 305 in a passage from the judgment of Lockhart J., cited by Toohey J. at 362, when he said:

"What his Honour did emphasize was that: "...there are two aspects of 'benefit' namely, first that the proceeding is not brought for the benefit of the applicant and second, that it is brought for the benefit of some other person. Proof of the former does not necessarily establish the latter". Equally, proof that a proceeding was brought for the benefit of another does not necessarily establish that it was not brought for the benefit of the applicant."

1. Even if I accept, on the evidence, and it may well be the case, that the Aboriginal Arts Management Association stands to benefit in some way from the outcome of these proceedings, that does not establish that they are not brought for the benefit of the applicant. On that basis alone the application for security for costs must fail. If I am wrong in that regard, I would in any event have given particular weight to the time that has elapsed since the matters relied upon by the respondents to support this motion must have come to their knowledge and the time at which this motion has been brought to the Court. Even allowing for the logistical difficulties associated with the Darwin Registry, the delay would have been a significant factor against a decision to award an order for security of costs.

2. The second limb of the motion related to a change of venue for the trial to the Sydney Registry. The respondents prepared submissions related to the desirability of an early trial date. That is a concern which I accept as valid, this case having already been once vacated from trial dates set down in May of this year in Darwin. As I have indicated to the parties trial dates are available now in Darwin for the week commencing 22 July 1991. And to that extent a substantial element of the submissions put by the respondent may be disposed of. However, questions relating to availability of counsel are yet to be resolved. I suspect the convenience of the Court will be an overriding factor given that a judge of the Court is available at that time and to otherwise list the matter would require it to be dealt with much later in the year, or moved entirely to the Sydney Registry. So far as the other aspects are concerned in relation to that limb of the motion, that is to say the presence of a number of the respondents' witnesses in Sydney, it may be that arrangements can be made to take a certain part of the evidence in Sydney. It is obviously more convenient and preferable to deal with the matter in its entirety in the one location so that there is no discontinuity in the hearing, but I will give the solicitors for the parties an opportunity to get instructions and perhaps come back this afternoon on that issue. I would not, at the moment, accede to the proposal in the motion particularly having regard to the availability of trial dates in Darwin. I think the appropriate order is simply that the motion be dismissed with costs and the question of venue held over to a directions hearing, which I am happy to put on at 4.30 this afternoon if that is convenient to the parties.