Lamb v Hog's Breath Company Pty Ltd

REASONS FOR JUDGMENT ON MOTION FOR SECURITY FOR COSTS AND TRANSFER OF PROCEEDINGS Security for costs 1 The general principles governing the provision of security for costs are well known and I need not recite them here. There is, as I have said on previous occasions, no precise formula in determining what is an appropriate level of security, nor the identification of the stages of the litigation in respect of which security should be provided, if it is to be provided on a staged basis at all. 2 In this case there is a need to have regard to the legitimate interests of both the applicant in seeking to pursue what he asserts are his rights, in this case a claimed copyright and remedies for infringement, and those of the respondents who are faced with a litigant residing out of the jurisdiction apparently with no assets in the jurisdiction. The respondents, if successful, could find themselves with a costs order in their favour which they are unable to enforce. 3 The provision of security is rarely, if ever, a complete indemnity against the risk faced by respondents and needs to be pitched at some level which involves a reasonable recognition of the competing interests. In this case the respondents have provided evidence, which is not contested, of costs estimates on a party-party basis with two different figures dependent upon whether the proceedings are to go ahead in Perth or in the Brisbane registry of the Court. In each case there is a division between pre-trial costs and trial costs. The pre-trial costs, if the proceedings were to go ahead in Perth, are estimated at $131,089.50. If they were to go ahead in Brisbane, they are estimated at $124,096.50. 4 The applicant has not been particularly forthcoming about the impact of a security order on his ability to conduct these proceedings. I have an affidavit sworn by his solicitor, Mr Mallon, in which he says that in relation to the suggested figure of $100,000 sought by the respondents, the applicant would need either to sell some of his available assets or borrow or obtain a bank guarantee against the security of those assets. It is not suggested that an order for security for costs would, even at the level of $100,000, have the effect of stifling the litigation in the sense that the applicant would be unable to proceed. The highest it seems to be put in his solicitor's affidavit is that the provision of the security would impose significant additional costs upon the applicant and place significant restrictions upon his personal financial freedom and planning. One can accept, of course, that exposure to an order for the provision of a not insignificant sum of money does have some impact upon a person's financial flexibility, but the quantum of that impact is difficult to judge without a more fulsome account of that person's financial position than has been offered in this case. 5 This is a case in which it is possible that when interlocutory processes have been completed, or in the course of interlocutory processes, there may be a negotiated resolution. I don't think it is appropriate yet to make an order for security to cover the whole of the litigation. I propose to do it on a staged basis covering security for costs up to the point of trial. I will allow liberty to apply if circumstances change to such an extent that a justification can be shown for varying the order that I propose to make. 6 I do not propose to order the full sum of $100,000 which was sought, albeit in respect of the proceedings by the respondents. I will make no distinction between Perth and Brisbane for this purpose as that suggests a false level of precision. It seems to me, having regard to the uncontested estimates of costs, that an appropriate figure is $60,000 up to the point of, but not including, the first day of trial. I propose that the security should be provided, by 26 February 2007, either by way of payment into Court or by way of bank guarantee in a form acceptable to the Registrar. I don't see much point in staying proceedings until then, but would stay proceedings from that date if the security has not been provided, and willgive liberty to apply. I will hear the parties on the question of costs of the motion so far as it relates to security. The transfer application 7 The proceedings were commenced in the Perth Registry of the Court. The respondents seek its transfer to the Brisbane Registry. The question of the Registry from which the proceedings should be conducted does not raise matters of high principle. It is essentially a matter of case management and proper recognition of the legitimate interests of each of the parties reflected, in part, in the balance of convenience as between them and, of course, the convenience of the Court and any economies and efficiencies that may attach to one choice or another. These matters used to be more critically dependent upon choice of Registry than they are today and some of the earlier cases about the discretion to transfer from one Registry to another may have to be read in that context, without affecting the underlying criteria that inform this discretion. 8 In this case the applicant resides in the United States and from his point of view it probably makes little difference whether the proceedings have been commenced in Perth or Brisbane save for the fact that he has engaged legal representatives based in Perth. This is not a case in which the respondents are living in the Brisbane CBD. They are in Queensland but as Ms Cochrane points out, there is a degree of geographical dispersion that makes convenience of access to the Registry in Brisbane somewhat academic. The interests at this stage of the proceedings are fairly evenly balanced. 9 Mr Lamb has chosen to engage solicitors, in whom he no doubt has confidence, based in Perth. The respondents have engaged representation in Brisbane. So far as the interlocutory processes are concerned, unless some unusual circumstance occurs, it matters little whether the proceeding is in the Perth or Brisbane Registry because in either event the party not in the home Registry will be able to participate by way of video-link or even teleconference. The Court also has the facility for the electronic filing of submissions and the like and the conduct of litigation, in part, through that. The question of travel between Perth and Brisbane, Los Angeles, Perth and Brisbane, raised by the parties is, in my opinion, of little relevance at this stage of the proceeding. The question of transfer does not impact on the question of the place of the trial nor, ultimately, the judge who conducts the trial. 10 The docket system to which Ms Cochrane has referred offers the advantage of continuity in case management, at least up to the point of trial. While ordinarily the docket judge will hear the trial of the action which he or she has been managing, it is not unusual for there to be cases in which the trial is allocated to another judge for reasons of convenience. So it might be that if this case were not to be transferred but it were thought that it would be most conveniently heard and determined in Brisbane, a judge from the Queensland Registry could hear the case without having been involved in the pre-trial case management. Much will depend upon the geographical distribution of the witnesses and it may be that part of the trial will be conducted in one centre and part in another. It is too early to make a determination about that. 11 So far as the return of subpoenas to produce documents is concerned, production can readily be directed at the Registry, most conveniently located from the point of view of those who have to respond to those subpoenas. Those are all case management matters which can be dealt with in due course. 12 Although this proceeding, in terms of the location of the respondents, might broadly be called a Queensland case from the respondents' point of view, it is not inherently a Brisbane case. The interests of the parties at this stage are fairly evenly balanced. I think it is premature to transfer the matter. I will entertain, as foreshadowed, applications as to the conduct and location of the trial and as to the place of compliance with things such as subpoenas, and if it becomes necessary at some point to have a case management conference where the physical presence of representatives and their parties is desirable, it may be that there can be a particular direction given in respect of that, but I don't propose to accede to the motion. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.