Moore v Macks

REFUSAL TO ADJOURN THE MOTIONS 10 At the commencement of the hearing of the two motions on 14 March 2007, Mr Moore sought an adjournment of them for some time. That was opposed. 11 The first ground for the adjournment was said to be that Mr Moore had been unable to attend to the motions, served on or just after 14 February 2007 because of his state of health. In support of that he produced a letter from a disability liaison officer of Flinders University dated 28 February 2007. I have read it. It does not indicate that he is or has been unable to address the issues to which the motions referred. I indicated I would not grant the adjournment sought on that ground. 12 The second ground for the adjournment was Mr Moore's claim that he had not had sufficient time to be ready for the hearing of the motions. He complained that Mr Macks had been required to file all his affidavits by 20 February 2007, and that he had been asked to file any responsive material by 2 March 2007, a period he said was insufficient. When it was pointed out to him that he had had, to the hearing date, something in the order of 20 or 21 days after 20 February 2007 to have filed any responsive material, he persisted that he was, because of his other commitments, too busy to have responded. He sought another 12 days within which to respond. 13 In the circumstances, I determined that I would give him a further opportunity to respond by filing written submissions and any affidavit evidence by 27 March 2007, and that I would then determine the motions and deliver judgment on 10 April 2007. That is how I proceeded in an endeavour to accommodate Mr Moore's concern about having an adequate opportunity to respond. I bore in mind the potential significance of orders for security for costs to the conduct of the appeals from the primary judgment. 14 Mr Moore on 27 March 2007 filed a lengthy written submission in opposition to the applications for security for costs. He did not file any fresh affidavit evidence, but at the end of the submission he listed various affidavits and applications in other proceedings in the High Court, in this Court and in the Federal Magistrates Court. The material in the High Court was not produced. The other material he referred to was considered, although generally its form made it difficult to discern its relevance to the issues to be addressed on these two motions. The submission did not identify which parts of any of those documents related to any particular assertion made by Mr Moore.

THE PRINCIPLES 15 The Court's power to order security for costs in the present circumstances derives from s 56 of the Federal Court of Australia Act 1975 (Cth). Order 52 r 20 of the Federal Court Rules also provides that: Unless the Court or a Judge otherwise directs no security for costs of an appeal to the Court shall be required. Mr Macks therefore accepts that there is an onus upon him to persuade the Court that its discretion to order security for costs of the appeal should be exercised. 16 The circumstances in which security for costs may be ordered are not confined to particular factors: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1, at 3-4. Although the current appeals have been instituted and are to be heard on 15 May 2007 by the Full Court, a single judge has power to order the provision of security for costs of an appeal: see per Hely J in Croker v Deputy Registrar of the High Court of Australia [2003] FCA 681 at [2]; and per Marshall J in Upton v Tasmanian Perpetual Trustees Pty Ltd [2006] FCA 1336. 17 The discretion to order security must be exercised judicially, but it is a broad and unfettered discretion. A number of factors have been held to be relevant when exercising the discretion, but in the present circumstances it is necessary to refer only to those which the parties by their respective submissions and evidence have identified or those which otherwise appear to the Court to be of significance.

CONSIDERATION 18 It is common ground that the impecuniosity of Mr Moore, and so the risk that he would be unable to meet any costs orders should the appeal be unsuccessful, should be addressed. 19 In my judgment, there is a demonstrable risk that, if the current appeals are unsuccessful, Mr Moore will be unable to meet the costs of Mr Macks of the current appeals. Mr Moore is bankrupt. There is little evidence as to his assets, other than that disclosed in his statement of affairs of 11 February 2005. He has a modest income. He has no significant assets, except (he claims) shares in Manna Hill Mining Co Pty Ltd, Manna Hill Resources Pty Ltd and Hodgemore Pty Ltd. There is no independent valuation of those shares, although he estimates in his statement of affairs that those shares are worth in total a little under $700,000. That includes debts owing to him by Manna Hill Mining Co Pty Ltd and the other two entities. He estimates his liabilities at a figure in excess of $515,000. There is no reason to think that that is not a realistic, if not a conservative, assessment. The evidence also suggests that there is no significant change in Mr Moore's assets or liabilities since the Statement of Affairs. Mr Macks' fees and costs to date, bearing in mind his extensive involvement in litigation involving Mr Moore, are presently in the order of some $93,000. In my view, it is plain that there is a very real risk that, if the current appeals are unsuccessful, Mr Moore will be unable to meet the costs of Mr Macks incurred with respect to them. Indeed, in his written submissions, Mr Moore acknowledged that he did not have the funds to pay any security for costs or to pay any costs of the appeals if awarded against him. 20 The cases suggest that, in the case of an appeal, where an impecunious litigant has had the benefit of a full hearing at first instance, the significance of the fact that a security for costs order may frustrate the exercise of the right of appeal should carry less weight than in the circumstances where a litigant at first instance may be put out of litigating a matter at all. As long ago as Cowell v Taylor (1885) 31 Ch D 34 at 38, Bowen LJ said: The general rule is that poverty is no bar to a litigant, that, from time immemorial, has been the rule at common law, and also, I believe, in equity. There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of Her Majesty's courts, and so an insolvent party is not excluded from the courts, but only prevented, if he cannot find security, from dragging his opponent from one court to another. Spender J in Skyring v Sweeney [1999] FCA 61 at [6] said: Impecuniosity is a factor which can be taken into account as justifying the grant of security. Impecuniosity ought not to be a bar to a person prosecuting at first instance a claim, but the position on appeal seems to me to be fundamentally different. In effect, in the absence of an order for security for costs in the circumstances of this case, Mr Skyring, in effect, is given a free hit, and that seems to me to be intrinsically unfair. 21 I proceed on the basis that any order for security for costs in respect of the current appeals is likely to frustrate their conduct, that is that Mr Moore will be unable to meet any order for security for costs and so will be unable to prosecute the current appeals. I take that factor into account. For the reasons which appear from the passages just quoted, I do not place as much weight upon that factor as I would if the application for security for costs were made against Mr Moore in relation to the conduct of the proceedings at first instance before Lindsay FM or Besanko J respectively. 22 There is no suggestion on the evidence that the cause of Mr Moore's impecuniosity is the consequence of any conduct or fault on the part of Mr Macks. Mr Moore asserts to the contrary in his written submissions, but then does not explain why that is so. His financial position flows from his circumstances prior to the primary judgment and the costs orders made in that proceeding. 23 I have read carefully the judgments appealed from and the notices of appeal. 24 I do not discern that the current appeals raise issues of public interest, or matters of general significance. They relate to the relationship between Mr Moore and Mr Macks. 25 It is necessary to consider the prospects of success on the current appeals. I will deal with them separately. 26 In respect of the appeal from the decision of Lindsay FM (SAD 84/2006), it is difficult to discern any ground in the notice of appeal which has any real prospect of success. The notice of appeal contains assertions as to procedural steps taken by Mr Moore, and very general conclusions (which simply repeat in general terms assertions made at the hearing) about his personal circumstances. The substantive grounds assert that: … [Mr Moore was] not given a fair hearing, due process not followed, bias displayed. Magistrate did not properly regard my evidence, allow cross-examination, he had regard to irregular matters, irrelevant including matters of political, legal reputations. Magistrate aware of illegal actions of Macks, I let, Wilson, Lawton. Not given procedural fairness. Unlawful activities. Trustee has a conflict of interest, negligent. It is self-evident that those grounds of appeal are discursive and unhelpful. They do not focus clearly upon errors allegedly made by the learned magistrate in any coherent way, or in a way which can be tied to his Honour's reasons for decision. 27 The decision of the learned magistrate made on the application for summary judgment was based upon the "threshold requirement" as identified by Riley J in Re Alafaci; Registrar in Bankruptcy v Hardwick (1976) 9 ALR 262 at 268. It is that the Court should first be satisfied that on the grounds and facts before it a case had been made out for inquiry into the trustee's conduct under s 179 of the Bankruptcy Act 1966 (Cth). As his Honour said at [18], he needed to be satisfied before embarking upon an inquiry under s 179 that sufficient grounds had been demonstrated for the inquiry to be conducted. No ground of appeal attacks that analysis of the legal approach as incorrect. 28 His Honour then addressed the evidence adduced by Mr Moore, together with that adduced by Mr Macks, and referred to the decisions of Lander J in the primary judgment. He noted the role of Mr Macks as a director and shareholder of Manna Hill Mining Co Pty Ltd, and also as its administrator and as its administrator under a Deed of Company Arrangement entered into apparently in May 2000 and which Mr Moore maintained until he resigned as deed administrator in September 2001. One of the other creditors of Manna Hill Mining Co Pty Ltd (as well as Mr Moore) was apparently Ms Dubois. Ms Dubois was also a bankrupt, and Mr Macks was also the trustee of her estate. His Honour considered Mr Moore's contentions as to the role of Mr Macks in the administration of that company in 2000 and 2001 and his role as trustee of the bankrupt estate of Ms Dubois. He concluded that there was nothing in that conduct which provided any sufficient basis to embark upon an inquiry under s 179 of the Bankruptcy Act 1966 (Cth). His Honour also concluded that there were no communications between Mr Macks and Mr Moore which provided any basis for the Court to infer that Mr Macks had some significant animosity towards Mr Moore. Beyond that, as his Honour noted, the conflict of interest assertion had not been particularised. He described Mr Moore's contentions as being no more than inviting his Honour to speculate about Mr Macks' general attitude towards Mr Moore or about the reasons why Mr Macks should presently, as Mr Moore's trustee, have a conflict of interest. His Honour was not prepared simply to speculate about those matters in the absence of any material to support them. 29 The next category of matters which were said to provide the basis for an inquiry concerned certain alleged conduct of Mr Macks through communications with Mr Moore. Although there were significant allegations of improper conduct on the part of Mr Macks, they were extremely general. His Honour concluded that there was no foundation for any of those allegations. His Honour rejected those allegations. He indicated that there was no material of any substance to establish any impropriety in the professional relationship between Mr Macks and his legal advisers, nor any foundation for the serious allegation Mr Moore had made against those legal advisers. They were rejected "unambiguously" as providing any basis for the Court to embark upon an inquiry under s 179 of the Bankruptcy Act 1966 (Cth). 30 Dealing generally with the significant factual conclusions asserted by Mr Moore, his Honour said at [36]: I accept the submission of the respondent that it is inappropriate to order an inquiry on the strength of allegations which have no factual basis and agree that to do otherwise would encourage disaffected bankrupts to make baseless allegations which would have the effect of requiring trustees to needlessly expend time and costs in defending their position. 31 Nor was Mr Macks' decision to defer his decisions in relation to the conduct of the appeals from the primary judgment until his status as the trustee of Mr Moore was finally determined (by the judgment of 10 February 2006) indicative of any conduct which would warrant such an inquiry. That part of the application was then referred to this Court and determined by Besanko J as referred to above. 32 His Honour at [40] then referred to "the miscellany of other complaints raised by Mr Moore against Macks" and said that they all fall into the same category of "unsubstantiated assertion." 33 In my view, there is nothing which has been identified by Mr Moore which shows that any of his assertions contained within the grounds of his appeal have any prospect of success. They are discursive, general and remain unsubstantiated by any cogent reference to evidence or reasoning. The same may be said of his submissions of 27 March 2007. 34 The application for summary dismissal of the proceeding before Lindsay FM was filed on 14 June 2005 and ultimately argued on 2 December 2005. Mr Moore had ample opportunity to prepare for it. His proposed evidence, even in its assertive form, was received and considered. Subsequent to that hearing, the learned magistrate received further evidence from Mr Moore on his application and had regard to it. There is nothing to indicate that Mr Moore was not given an opportunity to present to the Court such material as he was properly entitled to present, or was not given the opportunity to make submissions on the matters which he sought to make submissions upon. His allegations of not being accorded procedural fairness, or of the Magistrate having demonstrated a closed mind towards his application, are simply unfounded on the material before me. 35 I take into account that the appeal in this matter has no apparent prospects of success. 36 There has been a delay in bringing the application for security for costs in respect of this appeal. The notice of appeal was filed on 17 May 2006. The notice of motion seeking security for costs was filed only on 14 February 2007, following correspondence shortly before that time. However, I do not regard that delay as sufficiently significant in the present circumstances to affect the view which, on balance, I have otherwise reached in relation to the application. That is because (as noted above) the conduct of that appeal had been delayed whilst Besanko J heard that part of the proceeding which had been referred to this Court. The appeal is inter-related with the matter before Besanko J which is now the subject of appeal SAD 7/2007. As is apparent from the orders which have been made, it is appropriate that both appeals be heard together. There is nothing to suggest that Mr Moore's position has been adversely affected by the limited action in respect of his appeal up to the present time, and indeed he has not pressed for this appeal to have been listed for hearing earlier. 37 In respect of the appeal from the judgment of Besanko J (SAD 7 of 2007), the notice of appeal states the grounds assertively as follows: 1. The legal principles governing the evidence and procedures were not properly applied. 2. Admissible evidence was excluded. The Judge acted unfairly and was biased. 3. See attached document of further grounds of appeal number 3 to 39. 38 I have read the subsequent paragraphs numbered 3 to 39. Apart from assertions without any identified basis (e.g. the judge did not consider properly), Mr Moore complains of having insufficient time to present his evidence. The complaint seems to be that he could not adduce the "evidence concerning mining joint venture, my credibility, Lawton not being credible and Wilson not being credible witnesses." 39 He also complains of Lawton and Wilson being represented and being allowed to appear at the hearing through counsel. He asserts that the appeals from the primary judgment were not part of his bankrupt estate. He asserts that the learned judge overlooked the existence of the appeals from the primary judgment. That is patently wrong. Nothing more need be said about it. He asserts that the learned judge should have found that Mr Macks had a relevant, but unspecified, conflict of interest which should have precluded him from taking any decision about the fate of the appeals from the primary judgment. 40 I do not need to refer to a number of matters which could go only to the validity of the sequestration order, or to Mr Moore's solvency. That order had already been unsuccessfully challenged in other proceedings: see [6] above. I also do not need to refer to a number of matters which generally allege improper conduct on the part of Mr Macks or the solicitors and counsel for Mr Macks other than Mr Macks' conduct in relation to the appeals from the primary judgment. They were raised in that part of the proceedings heard and determined by Lindsay FM as noted above. I also do not need to refer to a number of matters which could go only to the prospects of success of the appeals from the primary judgment. They do not in any coherent way indicate that those appeals have any prospects of success. Moreover, subject to whether the appeals from the primary judgment were part of his bankrupt estate, the issue before Besanko J was whether Mr Macks, as trustee in bankruptcy of Mr Moore's estate, should be restrained or precluded from deciding whether or not to prosecute those appeals. It was for Mr Macks, if he were to be permitted as trustee to make that decision, to assess those prospects. Mr Moore himself, being bankrupt, had no direct role or responsibility in deciding whether they should be prosecuted. 41 Before referring to the reasons for judgment of Besanko J, I note that Wilson and Lawton were the applicants in the primary action. The costs order against Mr Moore made in that action was made in their favour. That costs order was the foundation for the debt upon which Mr Moore ultimately was declared bankrupt. 42 Justice Besanko found that the appeals from the primary judgment, upon the making of the sequestration order on 21 January 2005, became part of the bankrupt estate of Mr Moore and were then in the hands of Mr Macks as his trustee. Clearly that is correct. Sections 60(2) and (3) of the Bankruptcy Act 1966 (Cth) apply, and not s 60(4) as the appeals are not in respect of personal injury or wrong done to Mr Moore. The judgment in the primary action concerned the persons who were directors of Manna Hill Mining Company Pty Ltd and associated issues. 43 Justice Besanko concluded that there were no grounds under either s 179 or s 178 of the Bankruptcy Act 1966 (Cth) to impugn Mr Macks' decision not to seek an extension of time to elect to prosecute the appeals from the primary judgment. By reason of s 60(3), those appeals would be deemed to have been abandoned. Ultimately that is what occurred. 44 Mr Moore has not pointed to any feature of his Honour's judgment which could demonstrate any arguable error of law or arguable error in the application of the law to the facts. 45 Nor has Mr Moore demonstrated any finding of fact which has an arguable prospect of being disturbed on the appeal. His Honour identified the reasons for Mr Macks' intention not to prosecute the appeals from the primary judgment, and the confirmatory advice, and Mr Moore's criticism of those reasons. He identified the contention that Mr Macks had sufficient funds in the bankrupt estate to pay to prosecute those appeals, and rejected that contention on the evidence. He addressed the contention that Mr Macks intended not to prosecute those appeals to do harm to Mr Moore, and rejected that claim on the evidence; his Honour was satisfied that Mr Macks as trustee was independent and had considered in an objective and appropriate fashion the question of whether he should prosecute those appeals. Nothing has emerged from the notice of appeal, or from the material presented by Mr Moore on this application, to suggest he has any arguable prospect of demonstrating error by Besanko J in any of those steps. 46 There is also nothing to indicate, even on an arguable basis, that Mr Moore did not have a fair hearing. 47 His application was instituted on 28 April 2005. It was partly referred to this Court on 13 June 2006. That part of it was heard by Besanko J on 18 and 21 December 2006 and 8 January 2007. Mr Moore had ample time to prepare the material he wished to rely upon at the hearing. His affidavits were all received into evidence, even though his Honour regarded much of them as irrelevant. He was permitted to cross-examine Mr Macks, and to make submissions. 48 Consequently, I have come to the view that Mr Moore has no real prospect of succeeding on this appeal. 49 There are no other factors raised by either Mr Moore or Mr Macks said to be relevant to the making of the orders sought. On balance, in my view, having regard to the considerations I have mentioned, this is a clear case where security for costs of the current appeals should be ordered. 50 There is uncontradicted evidence as to the work which has been done in respect of the current appeals to date, and is anticipated to be done in the future. Mr Moore, in his written submission, complained that the evidence as to the work which had been done, and as to the costs which might be allowed on taxation, was hearsay. I reject that contention. The work done includes work with respect to the present applications for security for costs. Counsel for Mr Macks did not press the claim that the order for security for costs should encompass the work involved in this motion for security for costs itself. 51 Omitting that work, the solicitor's fees to date in the appeal SAD 84/2006 are estimated at $801, and for the future, including a one day hearing of the current appeals of $2975 with counsel fees of $6750. The total of $9725 for further costs should, as suggested by counsel for Mr Macks, be shared between the two current appeals and result in an allowance of $4862 each, making a total for this appeal of $5663. I think I should adopt a conservative approach to the appropriate figure for security for costs. In my judgment an order for security for costs should be made in the sum of $4000. 52 Mr Moore also submitted that the claimed costs should be properly taxed. The orders I propose to make do not prejudge any taxation of costs, if the appeals proceed and are dismissed. They simply order some security for costs to protect Mr Macks if the appeals do proceed and are dismissed. 53 Accordingly, I make the following orders on the notice of motion in appeal SAD 84/2006. 5. Mr Moore is to provide security of $4000 for the costs incurred and to be incurred by Mr Macks in the appeal, such security to be provided by paying the sum of $4000 into Court on or before 24 April 2007. 6. The hearing of the appeal is stayed until such security is provided or until further order. 7. As Mr Moore opposed the motion unsuccessfully, the costs of the notice of motion should be Mr Macks' cost on the appeal in any event. 54 In the case of appeal SAD 7/2007, the solicitor's work to date has been estimated at $999, and adopting one half of the future work for costs and disbursements in respect of the current appeals jointly, that produces a figure for costs estimated at $5861. In my view, an appropriate order for security for costs in that matter is $4200. That represents a deduction of a little over 25 per cent from the anticipated costs. I have taken into account that the costs appear to me to be broadly consistent with the applicable scales and guidelines. 55 In SAD 7/2007, there will be an order that: 5. Mr Moore is to provide security of $4200 for the costs to be incurred by Mr Macks in the appeal, such security to be provided by paying the sum of $4200 into Court on or before 24 April 2007. 6. The hearing of the appeal is stayed until such security is provided or until further order. 7. As Mr Moore opposed the motion unsuccessfully, the costs of the notice of motion should be Mr Macks' costs on the appeal in any event. 56 I will stand over the motions to a date to be fixed with liberty to apply, in the event that Mr Moore wishes to provide some different form of security for costs, or in the event of further steps rendering it appropriate or desirable on the part of Mr Macks to seek some further security for costs of the current appeal or, if the security for costs is not provided, for the current appeals to be dismissed. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Counsel for the Appellant: The applicant appeared in person