Carriage v Stockland

In Town Watch Incorporated v Grafton City Council and Westlawn Investment Company Ltd (1997) 93 LGERA 401 at 405 the Chief Judge of this Court appears to have accepted that, where proceedings are not shown to have been brought in the public interest, the mere fact the proceedings seek to remedy an alleged breach of a statute pursuant to an open standing provision is not of itself sufficient to refuse to grant security for costs although, nevertheless, the orders of the Court should be moulded to ensure the opportunity to remedy or restrain a breach is not unjustifiably impeded.

There is no issue that the motion seeking an order that the applicant give security for costs was made promptly. It was filed immediately following the joinder of the present applicant. An earlier, then extant, notice of motion seeking security from a previous applicant was withdrawn.

Having regard to the identified inherent weakness in the applicant's case, there is a strong argument to support the making of an order requiring the applicant to give security for at least part of the costs of the future conduct of the proceedings. The impecuniosity of the applicant is not a decisive matter but is a matter the Court must take into account in the exercise of its discretion whether to make the order. Notwithstanding the concession made by Mr Wilcher in the witness box to the contrary and submissions made by Mr Oshlack, it has not been proved to a sufficient level to satisfy the Court, at this stage, that the applicant will not be able to proceed with further litigation if security is required. Mr Carriage is not the only person who has the same level of interest in the outcome of the proceedings. His evidence is that he represents an assemblage of interests. The first respondent has already incurred costs in the conduct of two contested hearings and has been successful on both occasions. It does not seek security for payment of the accrued costs. No order as to costs has been made to date.

The notice of motion seeks an order for security for costs in an amount of $85,000. The evidence of Mr Wilcher seeks to justify an estimate for total fees and disbursements at the figure of $71,600, excluding some minor disbursements and the prospect of senior council's fees.

In the Court's view, therefore, having regard to the whole of the circumstances, the present applicant should, at this stage of the proceedings, provide some security for costs to be incurred by the first respondent. The order will be for an amount which the Court accepts as presently reasonable and will ensure payment of at least a significant proportion of the party and party costs. This amount is the sum of $25,000.

The final orders of the Court are as follows:- (1) That, within 14 days of the order, the applicant provide security for costs to the first respondent in respect of the costs from the date of this order up to and including the conclusion of the hearing of the matter in the amount of $25,000.

(2) That the proceedings be stayed until security for costs has been provided.

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