H & R Management Consulting Pty Ltd v Bickford [2010] QSC 144

Rodgers, Barnes and Green Lawyers for the first, fourth and fifth defendants

HIS HONOUR: In May of 2006, this Court made an order by

consent by which the plaintiff was ordered to put up $65,000

by way of security for the second defendant's costs in this

proceeding. That security was provided by the requisite moneys

In December 2009, the second defendant made application for

further security to be provided. After a contested hearing

before Margaret Wilson J, her Honour ordered on 14 December

2009 that the plaintiff provide further security for the

second defendant's costs of the proceedings in the amount of

$100,000 with that security to be provided by 21 December

2009. There was no appeal from her Honour's order.

The security which was ordered to be provided by 21 December

Subsequent upon that application by the second defendant, the first defendant on 26 February 2010 made application for the plaintiff to provide further security for costs in respect of the first defendant's costs of the proceeding. At that time, the plaintiff was represented by the firm of solicitors which had represented throughout the proceedings and was also represented by Counsel. The first defendant's application was resolved by agreement, and on 9 March 2010, Philippides J ordered by consent of the parties that the plaintiff provide further security for the first defendant's costs in an amount of $75,000. That further security was to be paid by 15 March 2010.

The plaintiff has not paid that security and shortly after

Philippides J made her order on 9 March 2010, the plaintiff's

solicitors withdrew as the solicitors on the record for the

There are then a number of applications before me today. One

is an application by the plaintiff under rule 675 seeking that

each of the orders of Margaret Wilson J and Philippides J be

set aside or varied. The other applications are applications

by each of the first defendant and second defendant for the

proceeding against those two defendants to be struck out by

reason of the plaintiff's failure to meet the respective

orders for provision of further security for costs.

The plaintiff was represented at the hearing today by its

director, Ms Briley. The plaintiff is now not legally

represented, and I gave Ms Briley leave, limited solely to

today's appearance, to appear on behalf of the corporate

Ms Briley frankly conceded on behalf of the plaintiff that the

plaintiff simply did not have the funds to meet either of

these further orders for security for costs. It would seem

that there was a prospect, or perhaps a wish, that a creditor who stands to gain from the outcome of this litigation if the plaintiff is successful would support the plaintiff financially by coming to aid of the plaintiff in enabling these orders for further security for costs to be met. Regrettably for the plaintiff, that assistance has not been forthcoming.

In the course of argument, I sought to elicit from Ms Briley

the statement of the special circumstances upon which the

plaintiff would rely for the purposes of obtaining an order

under rule 675 that each of these orders for security for

costs be set aside or varied. Ms Briley was, with respect,

unable to point me to any change of circumstance between the

time of the making of each of those orders and now such as

would constitute the necessary special circumstances to

enliven an exercise of the jurisdiction under rule 675.

As I discussed with her in the course of argument, that task

was made even more difficult in respect of the order made by

Justice Philippides because that order, made only some six

weeks or so ago, was made with the consent of the plaintiff. In effect, nothing has changed so far as the circumstance of the plaintiff is concerned since the time it consented to that

order six weeks ago. Indeed, as Ms Briley told me, it didn't have the money then to meet the order, and it doesn't have the money now to meet the order.

What Ms Briley did do was focus, both in her written

submission and in her oral submissions to me, on her claims

made on behalf of the plaintiff of injustice. She contends

that the claim has merit. She contends that the matters

alleged in these proceedings raise very serious issues, and

pointed out on several occasions that these are matters which

should be heard and determined for the benefit of the public

I do not doubt for one minute that Ms Briley genuinely adheres

to those views; but that is not the test which I am required

to apply for the purposes of determining whether or not the

orders for security for costs made by Justice Wilson and

There are, of course, two sides to the coin with which we are

presently concerned. The fundamental reason why security for costs orders are made is because of an apprehension that a plaintiff, if unsuccessful in an action, will not have the wherewithal resources to meet the successful defendant's costs in the proceedings; indeed, so much is clear from the terms of section 1335 of the Corporations Act.

Just is there is a public interest in aggrieved plaintiffs

having their cases heard and determined by the Courts, so too

there is a public interest in ensuring that the Court process

is not misused in anyway by impecunious plaintiffs bringing

proceedings against defendants without there being any concern

on the part of impecunious plaintiffs as to the financial

It is unnecessary for me to delve further into the philosophy

underlying orders for security for costs because, as I have

said, the orders with which I am presently concerned

were, in the case of Justice Philippides order, made by

consent by the parties and in the case of Justice Wilson's

order, made after her Honour heard a contested hearing in

It is clearly not appropriate for me on today's application to

embark on some sort of quasi-appeal against the circumstances

under which either of those orders were made or to revisit or

permit re-argument of matters which were, or should have

As I have said, at the end of the day, the plaintiff has

failed to discharge the requirement under rule 675 of

demonstrating that there are special circumstances in this

case to warrant a setting aside or variation or those orders,

and the plaintiff's application for relief under rule 675 will

There remains then the applications by each of the first

defendant and the second defendant for the proceeding against

each of those defendants to be dismissed. I have already noted

that the plaintiff has failed to meet either of the orders for

the provision of further security for costs. It is also, with

respect, clear from the admissions frankly made today by

Ms Briley that the plaintiff simply does not have the capacity

The best that Ms Briley was able to do was to offer to try and

come up with a time payment plan, with her to attempt over the

next couple of years to save enough money from her own work to

be able to meet these existing orders for the provision of

security for costs. For obvious reasons, it is quite

inappropriate for the Court even to contemplate what would in

effect be a stay of these proceedings for a period of two

years (that being the period of time suggested by Ms Briley)

to enable her to save enough money to put up the money to

cover these orders for security for costs. That sort of regime would completely cut across the philosophy

underlying the pursuit of litigation in this Court as

manifested in rule 5 of the Uniform Civil Procedure Rules.

There is no suggestion that were I, for example, to give a short extension of time within which the plaintiff could meet the orders for security, that that would serve any useful purpose.

In all the circumstances then, and having regard to what

appears to be the uncontested inability of the plaintiff to

meet these orders for security for costs either now or at any

time within the reasonably short-term future, it seems to me that this is an appropriate case in which an order should be made under rule 674, sub rule (c) for the dismissal of the claims against each of first defendant and the second defendant.

HIS HONOUR: For the reasons I have just given, there will be

an order in terms of the amended draft that I now initial and