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[2020] ACTCA 50
Court of Appeal (ACT)
2020-11-03
Mossop J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Dunstan v Higham (No 3)
Citation: [2020] ACTCA 50
Hearing Date: 15 October 2020
Decision Date: 3 November 2020
Before: Mossop J
Decision: See [61]
Catchwords: PRACTICE AND PROCEDURE – COSTS – Security for costs – appellant ordered to pay $30,000 as security for costs for an appeal to the Court of Appeal – appeal was dismissed and costs order made against the appellant – money paid into court but never paid out – competing applications – application by the appellant that the security for costs order be set aside – no special circumstances – application dismissed PRACTICE AND PROCEDURE – COSTS – Security for costs – application by the respondents to fix the amount payable pursuant to the costs order made by the Court of Appeal at $30,000 – application for the security to be applied to satisfy that order – respondents’ recoverable costs are much greater than $30,000 – appropriate to fix the costs of the appeal and related proceedings at $30,000 and allow the security held in court to be paid out to the respondents
Legislation Cited: Court Procedures Rules 2006 (ACT), rr 1720(3), 1905, 1906, 6719, Div 2.17.8 Safety, Rehabilitation and Compensation Act 1988 (Cth), s 112(3)
Cases Cited: Dunstan v Comcare [2014] AATA 208; 139 ALD 691 Dunstan v Higham [2016] ACTCA 20; 310 FLR 58 Dunstan v Higham [2016] HCASL 308 Dunstan v Higham (No 2) [2016] ACTCA 28 Dunstan v Higham & Ors [2014] ACTSC 206 Waters v Commonwealth (Australian Taxation Office) [2017] FCA 312
Texts Cited: Bernard Murphy, ‘The Problem of Legal Costs: Lump Sum Costs Orders in the Federal Court’ (Conference Paper, The National Costs Law Conference, 17 February 2017)
Parties: Colin Dunstan (Appellant) John Higham (First Respondent) John Growder (Second Respondent) Robyn Orr (Third Respondent) Richard Highfield (Fourth Respondent) Geoff Seymour (Fifth Respondent) Commonwealth of Australia (Sixth Respondent)
Representation: Counsel Self-represented (Appellant) M Hassall (Respondents)
Solicitors Self-represented (Appellant) Clayton Utz (Respondents)
File Number: ACTCA 48 of 2014
MOSSOP J:
Introduction
There are two competing applications before me dealing with $30,000 which had been paid into court by the appellant, Mr Colin Dunstan, as security for costs for an appeal to the Court of Appeal. The order for security for costs was made by Penfold J on 4 March 2015. The appellant’s appeal to the Court of Appeal was dismissed with costs: Dunstan v Higham [2016] ACTCA 20; 310 FLR 58.
Following the dismissal of the appellant’s appeal and the dismissal of an application for special leave to appeal to the High Court from that decision, the respondents did nothing to have their costs assessed and took no other steps that would permit the $30,000 to be paid out to them. The money simply remained with the court. In early 2020 the Registrar wrote to the parties asking what should be done with the $30,000. Although the parties had done nothing for many years, once prompted by the correspondence from the Registrar they eventually engaged in some communication but were unable to reach any agreement as to what should be done with the $30,000. Competing applications were filed in relation to that money.
The appellant sought that the order for security for costs be set aside and that the $30,000 paid into court be refunded to him. He also sought that the costs order in relation to the proceedings for security for costs be set aside and that the respondents pay the appellant’s costs of that application.
On the other hand, the respondents sought that the amount payable pursuant to the costs order made by the Court of Appeal be fixed in the sum of $30,000 and that the amount paid into court be applied in satisfaction of that liability.
For the reasons that follow, the appellant’s application should be dismissed, the costs of the appeal should be fixed at $30,000 and the money should be paid out to the solicitors for the respondents.
Evidence
In support of his application the appellant read an affidavit that he had sworn on 30 July 2020 and an affidavit in reply sworn on 11 September 2020.
In support of their application the respondents read the following affidavits: (a) Caroline Frances Bush, sworn on 18 August 2020 and 14 October 2020;
(b) Kim Chapman, affirmed on 24 August 2020.
Written submissions
The appellant filed written submissions dated 19 August 2020 and submissions in reply in relation to both applications dated 28 September 2020. He provided further written speaking notes at the hearing of the application. Following the hearing he was permitted to file further submissions on a number of issues and did so in submissions dated 29 October 2020.
The respondents filed written submissions dated 21 September 2020, which related to both applications.
Appellant’s application
The appellant relies upon r 1905 of the Court Procedures Rules 2006 (ACT) (CPR) which provides: “The court may, in special circumstances, amend or set aside an order made under this division.”
In support of the making of an order under r 1905, the appellant made the following points:
(c) The application for security was filed on 27 January 2015.
(d) The application was made quite late, as the appeal was filed on 22 September 2014 and appeal books were filed and served on 23 January 2015.
(e) On 28 January 2015 the respondents acknowledged that the appeal was ready to be heard.
(f) On 10 February 2015 the appeal was listed for hearing on 7 May 2015.
(g) In the ensuing five years the respondents took no action to recover the legal costs of the appeal or to seek the release of the $30,000.
(h) No reasons for requiring the security for costs have been published by Penfold J.
(i) The security for costs order sought to have the appellant pay into court an amount from workers compensation payments made to him under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) when counsel for the respondents had, at the security for costs hearing, said that garnishee orders would not be issued in relation to workers compensation payments.
(j) The purpose of the security for costs order was an improper purpose of preventing the hearing of the appeal. It diverted the appellant and his legal representatives from preparing for the appeal and pointlessly locked away the money for five years.
(k) The affidavit in support of the respondents’ application for security for costs had identified that the appellant received a lump sum payment in arrears of periodic workers compensation payments but failed to disclose that $94,090 had been deducted from those payments and paid to the Commonwealth. Further, a claim for a tax refund of over $30,000 that was lodged in November 2014 was “inappropriately delayed” and only paid 14 months later in February 2016.
(l) The Commonwealth failed to respond in a timely way to the letter from the Registrar concerning the security dated 17 January 2020 or to a proposal in relation to the security sent by the appellant on 4 March 2020.
Respondents’ application
The respondents sought to rely upon the affidavit of Mr Chapman, a costs expert. As pointed out above, the appellant objected to the use of this affidavit. Mr Chapman estimated that the costs likely to be recovered on a party-party assessment of costs would be between $150,000 and $165,500. That was out of total costs incurred of $265,780.05. He also identified that the cost of the preparation of a formal bill of costs would be in the vicinity of $15,000, the filing fee and taxation fee would be in the vicinity of $13,000 and the cost to appear in a contested assessment would be in the vicinity of $4000. He therefore estimated that the total costs of having the respondents’ costs assessed by the court would be $32,000.
The position of the respondents was that they wished to be paid the $30,000 that had been paid into court pursuant to the security for costs order, but that was to be in full satisfaction of the appellant’s liability in relation to the whole of the appeal proceedings. In that sense, the outcome would be one which was very favourable to the appellant.
In relation to the respondents’ application, the appellant’s submissions in reply identified what he described as two “major obstacles” and a series of procedural defects which he submitted should lead to the application being dismissed.
The first “major obstacle” was that Mr Chapman’s evidence of the likely outcome of the assessment related to the whole of the costs of the appeal proceedings. Those costs were the subject of three separate costs orders (dated 1 April 2015, 24 June 2016 and 27 July 2016) but the respondents’ Application in Proceeding only related one of them (the costs order made by the Court of Appeal on 24 June 2016) and there were no details of how that component related to the aggregate figure of $150,000. The appellant also submitted in relation to the report of Mr Chapman that, although he had exhibited the invoices upon which he based his opinion, they were so heavily redacted that the report was unfit for the purpose of fixing a gross sum costs order. The appellant referred to some extra-curial remarks by Murphy J of the Federal Court in which his Honour said that “to ensure that a weaker party is not disadvantaged by a lump sum costs order the Court may adopt a careful and conservative approach to fixing the costs” and “the evidence relating to costs must be sufficiently detailed and must clearly identify the components of the costs incurred and how they have been calculated”: Bernard Murphy, ‘The Problem of Legal Costs: Lump Sum Costs Orders in the Federal Court’ (Conference Paper, The National Costs Law Conference, 17 February 2017) 7-8.
In response to the appellant’s submissions in relation to the redaction of the invoices in Mr Chapman’s affidavit, the respondents tendered the unredacted invoices. That only left the issue of whether it was possible in the circumstances to identify what portion of the costs related to the order referred to in the respondents’ Application in Proceeding.
a. paragraph 2 of the judgment of the Court made on 24 June 2016 and entered on 21 July 2016;
b. paragraph 1 of the judgment of the Court made and entered on 1 April 2015; and
c. paragraph 2 of the judgment of the Court made on 27 July 2016 and entered on 29 August 2016.
Pursuant to r 1906(2), the security for costs in the sum of $30,000.00, given by the Appellant pursuant to the order of the Court made on 4 March 2015, is to be applied in satisfaction of paragraph 1.
The parties are to pay their own costs in respect of the appellant’s application filed on 30 July 2020 and the respondents’ application filed on 18 August 2020.
The appellant also identified a series of procedural defects in relation to the respondents’ application and affidavits. These matters led the respondents to not read or seek to have admitted some of the parts of the affidavits objected to. So far as there was an objection to the late service of the respondents’ application, that was cured by the adjournment of the application to the date when it was heard before me. So far as the affidavit of Mr Chapman not being in the approved form, the defect was minor and did not affect the substance of his evidence. In order to avoid any doubt about the issue, I give leave under CPR r 6719 to the respondents to use the affidavit. The matters raised by the appellant were not matters which would be fatal to the respondents’ application and would not influence the exercise of any discretion.
In light of the amendment of the application so that it encompasses each of the three costs orders made in the Court of Appeal proceedings and the tender of the unredacted invoices which form the basis for Mr Chapman’s opinion, I admit the whole of that affidavit and exhibit KC-1 (except pages 10-235 which were not pressed).
Procedural history
These applications come at the end of a litigious saga between the appellant and various officers and agencies of the Commonwealth.
For present purposes, the chronology may commence with the judgment of Burns J on 27 August 2014. His Honour was addressing claims made by the appellant in proceedings commenced on 17 May 2010 claiming damages for misfeasance in public office, breach of contract, conspiracy, defamation and interference with contractual relations against the respondents. In his 2014 judgment Burns J gave judgment for the respondents: Dunstan v Higham & Ors [2014] ACTSC 206.
The appellant appealed from that decision.
Prior to the appeal being heard, on 27 January 2015 the respondents filed an Application in Proceeding seeking security for costs in the sum of $85,000.
On 4 March 2015 Penfold J, sitting as the Court of Appeal, ordered that the appellant provide $30,000 as security for costs by 30 March 2015.
On 1 April 2015 Penfold J ordered that the appellant pay 75% of the respondents’ costs of the application for security for costs.
On 7 May 2015 the appeal was heard before the Court of Appeal. The appellant was represented by Mr Julian Burnside QC and Mr Timothy Crispin.
On 24 June 2016, more than 13 months after the hearing of the appeal, the Court of Appeal dismissed the appeal and ordered that the appellant pay the respondents’ costs of the appeal: Dunstan v Higham [2016] ACTCA 20; 310 FLR 58.
On 27 July 2016 Elkaim J, sitting as the Court of Appeal, dismissed an application by the appellant to set aside the orders of the Court of Appeal. His Honour ordered that the appellant pay the respondents’ costs of the application: Dunstan v Higham (No 2) [2016] ACTCA 28.
On 16 November 2016 the High Court dismissed an application for special leave to appeal from the decision of the Court of Appeal: Dunstan v Higham [2016] HCASL 308.
Ruling on appellant’s affidavit evidence
At the hearing I deferred my ruling on the admissibility of [23]-[45] of the appellant’s affidavit of 11 September 2020. Those paragraphs were objected to on the grounds of relevance. The paragraphs which are objected to include text under the headings “A pattern of hidden, remade, and lost decisions” ([23]-[30]), “Administrative procedures attempted from 1993 to 1997” ([31]-[38]) and “Legal proceedings in 1996 and 1997 after exhausting the above avenues” ([39]-[45]). Within the paragraphs are references to documents included as part of exhibit CGD-2, namely the items at tabs 6 to 20. As the headings within the affidavit suggests, these paragraphs recount certain aspects of the long history of disputation between the appellant and the Commonwealth and various of its officers. Having read this material I do not consider that it could rationally affect, directly or indirectly, the assessment of the probability of a fact in issue in the present applications. I therefore do not admit [23]-[45] of the affidavit of 11 September 2020 or the documents at tabs 6 to 20 of exhibit CGD-2.
In the event that I am wrong, and that there is some marginal relevance of this material as part of the background to the present proceedings, then the position is that, having read the material including the annexed documents, it is clear that nothing in that material would affect the conclusions that I have reached below.
Consideration of appellant’s application
It is convenient to first address the appellant’s application to set aside the order that he provide security for costs.
CPR r 1905 permits the court, “in special circumstances”, to amend or set aside an order made under div 2.17.8, the division relating to security for costs.
This rule makes express, but also qualifies, the power of the court to amend or set aside orders relating to the provision of security for costs. It is not necessary to seek to describe the scope of “special circumstances”. However, consistent with the nature of the rule in question, special circumstances will usually involve at least a material change in circumstances. That has been the approach taken to variation or discharge of security for costs orders in the Federal Court: see Waters v Commonwealth (Australian Taxation Office) [2017] FCA 312 at [49]-[53].
The rule does not provide for an appeal from one single judge to another. Any assertion that the discretionary decision to make the order for security for costs that her Honour did was affected by a House v The King error was a matter which could only be resolved by an appeal. There was no such appeal in the present case.
It must be observed at this point that the most obvious change in circumstances since the making of the order for security is that the appellant has been unsuccessful in his appeal and a costs order has been made against him in favour of the respondents.
For the reasons which follow, I do not consider that there is any sufficient reason to amend or set aside the security for costs order.
One of the reasons why the respondents contended before Penfold J that an order for security should be made was that recovery of costs from the appellant would be unlikely to be able to be achieved by a garnishee (or equivalent) order because the discretion to make a garnishee order would not be exercised in respect of workers compensation payments, welfare payments or debts owed by the Crown. As a result, although the appellant was receiving payments under the SRC Act, the respondents submitted that recovery of costs would be difficult. The appellant has now also pointed to s 112(3) of the SRC Act which provides that, except under certain presently irrelevant Acts, “any compensation payable under this Act is not subject to attachment”.
The appellant submitted that to make an order for security for costs was inconsistent with this latter provision because, in substance, it would require him to pay amounts that he had received by way of payments under the SRC Act. He went so far as to submit that because of s 112(3), the bringing of the application for security for costs was an abuse of process because it had no prospects of success.
I do not accept these submissions. Section 112(3) only prevents attachment, that is, the interception of a payment from a third party. It says nothing about what happens to money once it is in the possession of the debtor. That the ultimate source of the money might have been payments under the SRC Act does not mean that it cannot be recovered from a debtor once it is in the debtor’s possession. As a consequence, not only does s 112(3) not prevent an order requiring the provision of security for costs, its existence supports the appropriateness of making such an order so as to facilitate recovery of costs in circumstances where that might otherwise be difficult.
Consideration of respondents’ application
So far as the respondents’ application is concerned, the matters identified by the appellant as “major obstacles” are not properly characterised as such. Both have been fixed by straightforward amendments to the terms of the respondents’ application. The application is now based upon the correct rule. It now relates to each of the costs orders made in the appeal proceedings. For the reasons that I have given earlier, the costs order in relation to the security for costs application made by Penfold J on 1 April 2015 will not be varied. It is therefore not necessary on the present application to attempt to dissect out from the total recoverable costs the costs recoverable under any of the individual costs orders.
Mr Chapman was not required for cross-examination. In his supplementary written submissions, the appellant contended that Mr Chapman’s report did not “identify and justify three separate fixed sum amounts, one for each of the three separate costs orders in this proceeding.” Having regard to the amendment of the respondents’ Application in Proceeding this is not a relevant inadequacy in the evidence.
The submissions also pointed to some particular items involving travel between Sydney and Canberra by the respondents’ representatives. The items identified in the submissions total $2700 and the appellant submitted that it is not clear how Mr Chapman dealt with these items.
Next the appellant submitted that the delay in the filing of the application, the incorrect calculation of his tax refund, the concealing of the awareness of that incorrect calculation from his tax agent and the delay in final processing of those tax refunds in early 2016 were evidence of an abuse of process through the use of the application for security for costs to disrupt his capacity to prepare for and conduct the appeal. The evidence does not establish any link between any inappropriate delay in the processing of his tax refund and any decisions made relating to the bringing of the application for security for costs.
Other items which the appellant pointed to are items relating to:
(a) research as to whether a certificate of taxation is a final order for the purposes of commencing bankruptcy proceedings;
(b) the preparation of a subpoena to Westpac bank in circumstances where the appellant states that he has never had any accounts with Westpac and the work was done after the filing of the application for security for costs; and
(c) several items which the appellant says “raise questions of the integrity of the judicial process”, the relevant items relating to possible further submissions and email communications described as “Peruse email from Judge” and “Peruse email from Associate”.
None of these submissions undermine the reliability of the conclusions reached by Mr Chapman. So far as any particular cost items are concerned, they are relatively minor having regard to the difference between the total costs incurred by the respondents and the amount assessed as being recoverable on taxation. Insofar as the appellant’s submissions suggested some impropriety on the part of the solicitors for the respondents or “questions of the integrity of the judicial process” I do not consider that the evidence establishes either impropriety or questions which would require further evidence.
Having regard to the evidence of Mr Chapman, I find that the total recoverable costs would be in the range of $150,000-$165,500 and that the costs of having those costs assessed would, in addition, be approximately $32,000. Given the magnitude of the otherwise recoverable costs and the significant cost that would be imposed upon the respondents if they were required to proceed to assessment in the ordinary way, I am satisfied that it is appropriate to fix the costs of the appeal at $30,000 and allow the security held in court to be paid out to the respondents. Firstly, that is an outcome which is very favourable to the appellant because it limits his costs exposure to an amount very significantly less than the amount that would otherwise be recoverable. Secondly, it brings to finality a process which would otherwise be likely to consume substantial more resources of the respondents and the court. Thirdly, it permits the respondents to recover some amount for their costs in circumstances where the court has previously considered that it was appropriate that they be given security and they otherwise may be deterred from recovering any amount by reason of the costs of doing so.
Orders
The orders that I will make in relation to the respondents’ application do not precisely reflect the terms of the Application in Proceeding but give effect to the substance of the orders that were sought.
The orders of the Court are:
Paragraphs 23 to 45 of the affidavit of Colin Dunstan dated 11 September 2020 and tabs 6 to 20 of exhibit CGD-2 are not admitted into evidence.
The respondents are granted leave under r 6719 of the Court Procedures Rules 2006 (ACT) to use the affidavit of Kim Chapman dated 24 August 2020 in the proceedings.
The affidavit of Kim Chapman dated 24 August 2020 and exhibit KC-1 (excluding pages 10-235) is admitted into evidence.
The respondents are granted leave to amend their Application in Proceeding so that it seeks orders as set out in paragraph 24 of the reasons given on 3 November 2020. The application is taken to be so amended and any requirement to file an amended document is dispensed with.
Pursuant to r 1720(3)(c) of the Court Procedures Rules 2006 (ACT) the costs payable pursuant to the orders of the court made on 1 April 2015, 24 June 2016 and 27 July 2016 are fixed in the aggregate sum of $30,000.
Pursuant to r 1906(2) the security for costs in the sum of $30,000 paid into court by the appellant pursuant to the order of the court made on 4 March 2015 is to be applied in satisfaction of the costs orders referred to in order 5 and is to be paid out to the solicitors for the respondents.
The Application in Proceeding filed by the appellant dated 30 July 2020 is dismissed.
There is no order as to the costs of the appellant’s Application in Proceeding dated 30 July 2020 and the respondents’ Application in Proceeding dated 18 August 2020.
I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.
Associate:
Date: 3 November 2020
Dunstan
Higham
The second “major obstacle” was that the respondents’ Application in Proceeding referred to an order under CPR r 1720(3)(b) (which refers to “assessed costs to or from a stated stage of the proceedings”), whereas the actual contention of the respondents was that they should have an order under r 1720(3)(c) (which refers to “an amount for costs decided by the court”).
In response to the points made by the appellant, the respondents made an application to amend their Application in Proceeding so that each of the three relevant costs orders in the proceedings were referred to and the appropriate paragraph of r 1720(3) was referred to. The amended application also identified that the respondents’ position in relation to costs of the present applications was not that they sought costs but that they were content that each party bear their own costs of each of the respective applications.
The appellant opposed the grant of leave to amend. The basis for that opposition articulated in the appellant’s further written submissions dated 29 October 2020 was to the effect that the discrepancies in the respondents’ application, evidence and submissions did not arise from “procedural errors” but were instead “a considered attempt at deception: to create an appearance of seeking the sum of $30,000 in relation to three costs orders while the application for orders by the Court set out the true intention – to obtain $30,000 for exactly one of the three costs orders, leaving the remaining two costs orders the subject of applications that were to follow”. Further, he submitted that the amendment to the application “was always considered as a “fall-back” position in the event that viable objections to the first version were encountered” but that the details were not delivered until the hearing because, in summary, the respondents wished to exploit the appellant’s mental health difficulties and deny him the opportunity to make proper submissions in response. His submissions suggested that the application should be refused in the exercise of the court’s discretion.
I do not accept the appellant’s submissions that what occurred involved “a considered attempt at deception” or an attempt by the respondents to exploit the difficulties faced by the appellant in responding to the oral application to amend the Application in Proceeding. Rather, the defects in the application were defects arising from a failure to take sufficient care in the drafting of the application in light of the evidence that was available. Adopting the dichotomy proposed in the appellant’s submissions, the defects arose from “incompetence” rather than “cunning”. The defects were drawn to the attention of the respondents by the appellant’s written submissions and, not unreasonably, the respondents took steps to remedy the difficulties that they faced.
In my view, it is appropriate to grant leave to the respondents to amend their application. While it would have been desirable for the application to have been drafted in a manner which referred to the correct rule and corresponded to the expert evidence that was to be relied upon, the respondents are not to be punished for these procedural errors. Rather, it is appropriate that the court permit the amendment of the application in order to ensure that the issues of substance in dispute between the parties are resolved. It would not be appropriate to permit an application like this to founder because of inadequacies in the drafting of the Application in Proceeding when the making of the amendment gives rise to no relevant prejudice on the part of the appellant and allows the issues of substance in dispute between the parties to be identified and resolved.
As a result of giving leave for this amendment the orders sought by the respondents are: 1. Pursuant to r 1720(3)(c), that the Appellant is to pay the Respondents the fixed sum of $30,000.00 in full satisfaction of:
I do not accept the submission that the order was sought for the improper purpose of preventing the hearing of the appeal. It is true that a failure by a party to provide the security for costs that has been ordered will often have the consequence that the proceedings do not continue. In that sense, an application for security for costs carries with it a conditional intention that the proceedings do not continue. In other words, the intention of the applicant will be that, unless security is provided, the proceedings will not continue. That is not, of itself, sufficient to establish an improper purpose. In the present case I am not satisfied that the fact that the application for security was made relatively late in the appeal proceedings indicates that it was made for the purpose of diverting the appellant’s and his representatives’ time and resources from preparing for the appeal. In any event, the timing of the application is a matter which, if raised, would be a significant matter relevant to the exercise of the discretion whether to order security and, if so, how much. It was in fact raised before Penfold J and her Honour gave specific consideration to that issue. It was one of the reasons why her Honour did not order the full amount of security for costs that was sought. Insofar as the appellant also relies upon the respondents’ post-appeal conduct in failing to pursue the payment of the amount of security that had been provided, the evidence is not sufficient to permit any inference in relation to the original purpose of the application. There are a variety of possible reasons why the sum was not pursued earlier than it was.
The appellant relies upon what is said to be a failure by the respondents to disclose that $94,090 was deducted from the lump sum payment of seven years of arrears of periodic workers compensation payments that were paid to him as a result of the decision in Dunstan v Comcare [2014] AATA 208; 139 ALD 691. The evidence before Penfold J was that the total payment to the appellant was $415,718.65 less certain identified amounts. Those identified amounts did not include any deduction of tax. I do not consider that any failure to refer to the fact that tax was deducted from this amount supports the appellant’s contention that the respondents had an improper purpose. The availability of a substantial payment such as this was clearly relevant to the application for security. Any perceived deficiencies in the evidence put on by the respondents in support of their application were matters that could have been addressed at the hearing before Penfold J.
So far as the appellant relies upon what he says is an inappropriate delay in the payment of a tax refund of $30,000, the evidence does disclose that the Australian Taxation Office has recognised that some aspects of its processing of the appellant’s 2012/2013 tax return involved defective administration. However, the evidence is insufficient to establish that there was any intentional wrongful conduct on the part of the respondents in relation to this payment. Necessarily, that means that the evidence is insufficient to establish that there was any conduct in relation to the tax return intended to impede the appellant’s appeal. Further, there is no evidence that this delay had any causal consequence so far as the provision of security is concerned or for the appellant’s conduct of his appeal.
The appellant’s submission that Penfold J failed to give reasons for her decision is incorrect. The transcript discloses that her Honour gave reasons at pages 112 and 113 of the transcript (pages 115-116 of exhibit CFB-3). The submissions of the appellant appear to be based on the propositions that the reasons were required to be published. There was no obligation on her Honour to subsequently publish the reasons that she gave orally.
For these reasons, I am not satisfied that there are “special circumstances” for the purpose of CPR r 1905 and I do not consider that the order for security should be set aside. The appellant’s application to set aside the order for security for costs dated 30 July 2020 will be dismissed. As a result of this dismissal, it is clear that no orders should be made interfering with the costs order made by Penfold J on 1 April 2015 in relation to that application.