Subsequently Mason P requested that the parties provide submissions in relation to the decision of In Re Pinochet (House of Lords, 17 December 1998) by 20 February 1999. A copy of this decision became available on the internet on about 15 January 1999. The plaintiff's counsel submitted that the making of written submissions will delay the decision of the Court of Appeal. That may be so, but when I determined the appropriate quantum of security and the time by which it was to be lodged, I took into account that the proceedings (both before the Rolfe J and the appeal) were complex and that it may take some time for the judgment to be handed down (p 6).
8 On the last occasion this matter was before the court, I was unaware that the plaintiff had lodge $90,000 as security for costs in the Court of Appeal proceedings. However, referral was made to the length of time, namely, 9 years had elapsed since the events occurred that gave rise to this cause of action and to the fact that one of the defendant's witnesses has cancer. This delay and any continuing delay in this matter being heard causes the defendants to suffer presumptive prejudice - see comments of McHugh J at p 8 in Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1.
9 Even if proceedings are dismissed as against the first plaintiff, they remain on foot so far as the 2 to 6 plaintiffs are concerned. When I performed the balance exercise (referred to earlier in this judgment) I decided that the plaintiffs should lodge security for costs in the sum of $62,000 for each group of defendants. This reflected the amount of costs that each group of defendants would incur in preparing their case for trial. On the last occasion the plaintiff submitted that an appropriate time to lodge the security was 5 February 1999 whereas the defendants requested it within 14 days ie., by 25 November 1998. They submitted that at the original hearing they sought not to lodge security until after the Court of Appeal judgment was handed down. My judgment does not record that submission nor is it the recollection of the other defendants. I decided that security was required to be lodged by 18 January 1999 to allow the plaintiffs to focus on the running of their appeal.
10 On 18 January 1999, when the plaintiff failed to lodge the security in accordance with my orders it did not immediately move the court to extend the time for lodging the security but rather waited until 24 February 1999 to file their motion. By that time it had been put on notice that the defendants would move to have the claim brought by Dovade Pty Limited struck out. The evidence relating to the plaintiffs' and in particular that of Dovade Pty Limited's inability to pay security is unsatisfactory. There is a statement by the plaintiffs' solicitor that he has been instructed that the plaintiffs have been unable to fund and pay the security for costs as ordered by the 13 November 1998 and that subject to the outcome of the matter of the appeal, the plaintiffs will then be in a position to fund and comply with the security order. None of the plaintiffs nor an officer having direct knowledge of the financial position has given evidence on oath. I had previously criticised the plaintiffs for firstly not furnishing evidence as to the amount of security they thought was appropriate and secondly their failure to furnish evidence as to the plaintiffs true financial position.
11 There has not been a material change in the circumstances since the original application was heard nor has there been discovery of new material which could not have reasonably been put before the court on the original application - see Brimaud v Honeysett Instant Print Pty Limited (NSWSC McLelland, unreported 19 September 1988). While balancing the interest of the first plaintiff against those of the defendants, I have to bear in mind that injustice to impecunious defendants by unnecessarily shutting them out or prejudicing them in the conduct of litigation should be avoided. However, I am faced with the difficulty that once again evidence of the first plaintiff's true financial position has not been put before the court even though the plaintiffs have conceded that it is appropriate that security for costs be given. Nor has the first plaintiff deposed as to the attempts, if any, he has made to comply with the court's order. It is my view that justice lies on the side of the defendants. The plaintiffs should provide security for costs prior to the Court of Appeal's decision being handed down.
12 The defendants have sought that the proceedings be dismissed on the basis of Part 53 r 4 of the Supreme Court Rules but conceded that the plaintiffs should be allowed a further 7 days to lodge security and if this order is not complied with they submitted the proceedings should be dismissed.
13 Part 53 r 4 of the Supreme Court Rules provides:
"Where a plaintiff fails to comply with an order under this Division, the court may, on terms, order that the proceedings on any claims by the plaintiff for relief in the proceedings be dismissed.
14 The defendants referred me to Billinudgel Pastoral Co Pty Limited & Ors v Westpac Banking Corporation & Ors (Federal Court, Cooper J, unreported 27 March 1998) Cooper J stated that:
"The court's discretion to vary an order for security made under O 28 or to dismiss proceedings pursuant to s 56(4) for failure to provide security or further security is an unfettered discretion to be exercised in the circumstances of the case. Whilst the court will be careful to see that orders for security for costs to not work injustice to parties against whom the orders are made, if those parties do not comply with the orders and offer no explanation for non-compliance, they cannot be hear to complain if, after a considerable length of time, their proceedings are dismissed: Microboi Resources Inc v Betatene Ltd (unreported, Federal Court of Australia (FC) Black CJ, Sheppard and Einfeld JJ, 8 October 1993) at 9-10…"
15 As previously stated the first plaintiff by its officers has failed to put any evidence as to the steps it has taken to comply with the courts orders. However, the first plaintiff should have a further opportunity to comply with the orders for security for costs. The time for lodging security is extended for the period of 28 days from the date of this judgment. If the orders for security are not complied with, the proceedings should be dismissed.
16 As the first plaintiff did not comply with the court's earlier order and was unsuccessful in its motion it is my view that the first plaintiff should pay the defendants' costs of the motions. The defendants submitted that these costs should be payable forthwith. Costs should be payable in the normal manner, that is they should be payable at the conclusion of the proceedings.
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