Brundza v Robbie & Co

On 27th August the appellant left Melbourne by ship with the intention of proceeding to Ethiopia and taking up residence there. The ship called at Fremantle on 31st August, leaving some four or five hours after arrival. On 29th August, i.e., after the appellant had sailed from Melbourne, the summons for further security for costs of the appeal was issued. The only prior application for further security was made by telephone to the respondent's solicitors late in the afternoon of 29th August - before it was served but most probably after it had been issued.

The fact that the appellant is out of the jurisdiction (there being no suggestion that he has assets within the jurisdiction) affords, of course, a clear prima facie ground for ordering that further security for the costs of the appeal be given. I have, nevertheless, come to the conclusion, on the whole - having regard to all the circumstances, including those set out in an affidavit which has been filed since the matter was before me on Friday - that I ought not to order further security in this case.

I know nothing of the nature of the case except that I am informed that it turns on a question of agency and that the hearing before Sholl J. occupied five days. It may be assumed that the statutory sum of £50 is inadequate to indemnify the respondent in respect of costs of the appeal, but it is material that security to this extent is already provided. It is also material that, 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 [1] . It is not, of course, to be assumed that the appellant will fail.

There has been substantial delay in applying for further security. The application could have been made at any time after 21st July. It is a well settled rule that applications for security for costs must be made promptly: McLaughlin v. Daily Telegraph Newspaper Co. Ltd. [2] . I would agree that delay, as such, may often be of less importance where the ground of the application is that the appellant is out of the jurisdiction than where the application is based on some other ground: cf. In re Indian, Kingston, & Sandhurst Mining Co. [3] . It may also be said that the recognised ground for such an application is that the appellant is outside the jurisdiction, and that here the application was made immediately it became known that the appellant had left the jurisdiction, and I would gather from the further affidavit filed that the view taken by the respondent's advisers was that an application should not be made until the appellant had actually left the jurisdiction. I was not, however, referred to, and I have not been able to find any authority which supports any such view, and I would think such a view erroneous. It was known that the appellant intended to leave the jurisdiction, and intended not a temporary absence but a residence outside Australia. An application for leave to execute the judgment was made on the ground that he so intended, but no application was made for further security for costs of the appeal. If an application of the latter kind had been made promptly, or at any rate before the appellant left Melbourne, instructions could have been readily obtained from him by his solicitors, and it would have been possible either to arrive at an arrangement satisfactory to both parties or to obtain an order which would have protected the one party without prejudicing the other. As it is, the making of an order would certainly mean that the appeal could not be heard at the October sittings of this Court, and the appellant would be delayed in obtaining a decision for at least three months and possibly for six months.

1. (1904) 1 C.L.R. 143. 2. (1882) 22 Ch. D. 83.

The position, then, is this. The respondent is fully indemnified in respect of the costs of the action if the appeal fails. He has security for the costs of the appeal to the extent of £50. To order further security now might - and, so far as I can see, would - prejudicially affect the appellant. Such prejudice would be directly occasioned by the delay of the respondent in making his application for further security. In all these circumstances I do not consider that the order sought ought to be made.

I dismiss the application without prejudice to any further application which may be made if the appeal is not prosecuted with due diligence. As to the costs of the application, I think the proper order is that they be the appellant's costs in the appeal. I certify for counsel.

[Editor's Note. - The decision of the High Court on the appeal is reported in (1952) 86 C.L.R. 345.]