BETWEEN : DALLAS DEVELOPMENT CORPORATION PTY LTD

Practice and procedure Western Australia - Springing order - Security for costs - Appeal from decision of Master making a springing order for failure to provide security for costs

Applicant (Plaintiff) : Mr S Owen-Conway QC & Mr P A Monaco

Hughes v Gales (1995) 14 WAR 434

Inghams Enterprises Pty Ltd v Bark Creek Pty Ltd, unreported; FCA; 30 May 1997

Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd (1986) 4 NSWLR 491

Speed Up Holdings Ltd v Gough & Co (Handly) Ltd [1986] FSR 330

1 TEMPLEMAN J : This is an application for leave to appeal from an order made by a Master on 15 November 1999. The order was a springing order. It arose out of the failure of the applicant to comply with an order for security for costs which had been made by the Master on 11 May 1999, Some 6 months earlier.

2 The order which the Master made on 15 November was that the security, which had been ordered in May, was to be provided within 28 days and if the applicant failed to comply with that order that the action be dismissed and the applicant pay the respondent's costs to be taxed.

3 It is sought to have that order set aside and to have the question of provision of security dealt with in a subsequent hearing.

4 It is not necessary to go into the history of the matter in any great detail. It is of course relevant to note that the action which was brought by the applicant against the respondent arose out of alleged oral misrepresentation said to have been made in 1988, nearly 12 years ago. The action was commenced in 1994 and the two causes of action, we are told by Mr Owen-Conway QC who appears for the applicant, would have been statute barred in May and October 1995 respectively.

5 The action went through a number of interlocutory stages, none of which is now relevant, and was entered for trial by the applicant on 11 March 1999. A trial date was to have been allocated but instead the matter went off to the hearing of the application by the respondent for security for costs which led to the order made by the Master on 11 May. There was no appeal against that order. Indeed, having read the papers relating to the application, one can see that it was quite properly made.

6 The matter can be taken up in affidavits sworn by Mr Pino Anthony Monaco who at all material times has been the applicant's solicitor. Mr Monaco has sworn two affidavits the contents of which I accept, bearing in mind that in the second affidavit Mr Monaco corrected a factual error in the first one.

7 The order for security for costs made on 11 May required the applicant to provide the stipulated security within 21 days. As I have said, that was not done. On 5 November the respondent brought an application seeking leave to take out a summons for directions pursuant to O 29 r 5(1) of the Rules of the Supreme Court.

8 The summons for directions is in the papers. It is quite clear that the respondent was seeking an order that if the applicant failed to comply with the order for provision of security for costs the action would be dismissed and that the applicant pay the respondent's costs.

9 The matter was considered by Mr Monaco. He was of the view that this was a case flow management issue although, as he says, quite properly, he was aware that the Court had an inherent jurisdiction to make a springing order. That is clearly so. Order 29 r 2 sets out a catalogue of what may be described as general case management orders which the Court has power to make.

10 However, the order is prefaced by the words "without limiting the generality of that power." In other words, although there are what might be called fairly standard orders contained in O 29 r 2, there is no limit to the power that the Court may exercise under that rule. As Mr Monaco rightly appreciated, the Court could make a springing order in the terms sought by the respondent here.

11 The application for leave to issue a summons for directions was supported by an affidavit of Mr Hilton John Somerville sworn on behalf of the respondent. That affidavit was dated 21 October 1999. The affidavit referred only to the fact that the order for provision for security for costs had not been complied with. As Mr Monaco rightly says in his affidavit, Mr Somerville's affidavit made no reference to any prejudice that would be suffered by the respondent. Further, it made no reference to the applicant pursuing its action with diligence. It made no reference to intentional disobedience or inordinate delay.

12 In relation to the question of prejudice it is not in my view necessary for anything to be said expressly. The prejudice is clear. When one has an action arising out of oral representations said to have been made nearly 12 years ago the prospects of witnesses recalling with any degree of precision conversations or the contents of meetings which happened in 1988 must be receding very rapidly. The question of diligence or inordinate delay I will return to in a moment.

13 Returning to the narrative: the chamber summons was returnable on 15 November. Mr Monaco therefore had some 10 days notice of the application. Mr Monaco says that a day or so before the return date he telephoned Mr Monaghan who was the solicitor who would be appearing on behalf of the respondent before the Master. Mr Monaco told Mr Monaghan that he would be seeking an adjournment of the chamber summons on the basis that the applicant wanted to file an affidavit in opposition and that the matter should be referred to a special appointment so that Mr Ian Viner QC could be instructed to represent the applicant. It is not suggested by Mr Monaco that there was any consent to his request for an adjournment.

14 On 15 November Mr Monaco did not himself appear before the Master. He instructed a solicitor in the employ of his firm, Mr Clements, who appeared in his place. We have an affidavit from Mr Clements, the contents of which I accept. He says that when the summons was called on he informed the Master that he wanted an adjournment to enable the applicant to produce affidavit evidence in opposition to the application, to address the issues of default and delay: and that the matter should be referred to a special appointment so that Mr Viner could be briefed to argue the matter.

15 Mr Clement says that the Master refused the adjournment. I should say that there are no reasons given by the Master: that is to say there were no written reasons, nor would any be expected given that the matter was dealt with in ordinary Masters chambers.

16 We are told by Mr Owen-Conway that Mr Monaco expected that there would be an adjournment. That was his state of mind. But I have to say, with all respect to Mr Monaco, that I cannot see why that should have been so. The application had been made on some 10 days notice. Mr Monaco knew that there would be no consent to an adjournment. Although Mr Owen-Conway referred to the hearing on 15 November as being the first return day, it was in fact the hearing of the respondent's application.

17 Given that there was no affidavit material of even the scantiest kind before the Master which might have persuaded him to grant a further extension or to adjourn the matter for further argument, it does not seem to me to be surprising that he made the order that he did. I emphasise that it was not an order striking out the applicant's action. It was a springing order. It gave the applicant another month in which to comply with an order which it had failed to comply with for the previous six months.

18 I have some sympathy for Mr Monaco because it appears now, from an affidavit sworn yesterday by Mr Barry Daniel O'Rourke, who is a director of the applicant, that there is really nothing that Mr Monaco, or indeed Mr Clements could have said on 15 November which might have made any difference. I should preface these remarks by saying that, having read the papers relating to the application for security for costs, it is clear that the applicant itself had no assets other than the cause of action which is pursued in the proceedings.

19 Mr O'Rourke in his affidavit, in brief outline, refers to the action and the nature of the claims that are made. He goes on to say that he has personally met financial commitments of the applicant in relation to the action and that the order to make a payment of $30,000 by way of security for costs placed a significant burden on the applicant and himself. He goes on to say:

"17. Every effort has been made to meet the security order at the same time as providing resources for the substantive action. I have approached numerous private individuals for assistance in seeking funds to cover the security. These approaches have been unsuccessful.

18. At the same time arrangements were put in place via a third party to secure sufficient funds to meet the security. This involves the subdivision and sale of land at 47 Duncraig Road, Applecross. The subdivision took some time as it involved a residential lot but it has now been approved and the land is now on the market for sale. I anticipate the sale process will take approximately 60 days. "

20 It seems to me that that affidavit is very scanty indeed. We are not told what return is expected from the sale process. We are not told whether there are any secured creditors who will need to be paid out of the proceeds of sale and therefore what the net proceeds are likely to be. There is no valuation to give the court any idea of the likely price to be achieved. Furthermore, we are told only that Mr O'Rourke anticipates that the sale process will take approximately 60 days, but we have no way of telling whether Mr O'Rourke's view is realistic, pessimistic or optimistic.

21 It is not clear, further, what is meant by "the sale process": whether that is a reference to the execution of a contract for sale or whether it refers to settlement. So the position is that even now, some nine months after the security for costs order was made, the court is being asked to grant a further indulgence of perhaps in total a year after the matter was first entered for trial. That seems to me to be an entirely unsatisfactory state of affairs and leads me to the view that the Master was correct in making the order which he did.

22 I note that in Seaman in relation to springing orders in par 43.0.17 a statement is made:

"In exercising the discretion to make a springing order to further principles of positive case flow management, the Court has wide-ranging powers which are not confined to considerations of intentional default or contumelious conduct or inordinate or inexcusable delay."

23 Mr Owen-Conway has referred the Court to the commentary in Seaman at par 25.6.1 in relation to the consequences of failure to furnish security. The statement is there made:

"The Court has inherent power to dismiss the action if it is not being pursued with due diligence, the time limit has expired, and there is no prospect of the security being lodged, applying similar considerations to those involved in an application to dismiss an action for want of prosecution."

24 Given the passage to which I have referred in relation to springing orders, I am not persuaded that it was necessary for the Master to consider questions of intentional default or contumelious delay. That is why, it seems to me that, it was not necessary for those matters to have been referred to by Mr Somerville in his affidavit in support of the application for the springing order.

25 The springing order was not sought because the action was not being pursued with due diligence. It was sought because the applicant had failed to comply with a court order made some six months earlier and had not, in the interim, sought any indulgence from the court or sought to explain the reasons for its inability to comply with the order when it was well in breach.

26 As I have indicated, had the matter been agitated before the Master in November, it would have appeared, I think, that there was very little prospect of security being lodged which, as I have said, causes me some sympathy for Mr Monaco's position; that is, his inability to say anything at all which might have altered the situation.

27 In all those circumstances I am not persuaded that the Master erred and I consider that the application should be dismissed.

28 WHEELER J : I agree that the application should be dismissed for the reasons given by his Honour Templeman J, and particularly in view of the limited evidence before us as to what, if anything, was or might have been said to the Master about the applicant's efforts to obtain security and the likely prospects of any success following those efforts. Indeed I note that it seems to me, as his Honour has remarked, there is limited evidence before us as to what efforts have been made and as to the current likelihood of obtaining adequate security.