Ollerenshaw v The Uniting Church in Australia Property Trust

Supreme Court of NSW|2017-07-13|Before: Walton J

Background

By way of background, the plaintiff is a 26 year old male who was born in Sydney. The plaintiff has two younger siblings: a sister and brother. He attended school in Sydney before the family moved to the Gold Coast in 2005. Following the move, the plaintiff attended Logan Hospital for treatment. The plaintiff received various medical treatments between 2005 and 2009. Further treatment was received after his attendance at the Royal Commission into Institutional Responses into Child Sexual Abuse ("the Royal Commission") in February 2015.
The fifth defendant was represented by counsel, Mr S Gray and his instructing solicitor, Dr Ashley Tsacalos from Clayton Utz. Dr Tsacalos, is the solicitor for the first defendant, whom also acts for the fifth defendant. The plaintiff was represented by senior counsel, Mr E G Romaniuk and Mr S J Maybury of counsel. His instructing solicitor was Ms Lisa Powell from Edwards Michael Powell Lawyers.

Fifth Defendant's Submissions

The fifth defendant accepted that the plaintiff is currently physically located in Australia. However, it was submitted a security of costs order was appropriate for the following reasons: 1. The plaintiff had a transient lifestyle and should be classified as ordinarily residing outside Australia at the time of the hearing of this motion. The written submissions attachment indicated the plaintiff's transient lifestyle occurred predominantly outside of Australia, namely, various locations in Canada, New Zealand and Japan. 2. The intention of the plaintiff was to remain in Australia for the purpose of attending the Royal Commission and because of his financial limitation. 3. Further, the state of mind of the plaintiff was such that he had considered himself as living in Canada. In that respect, the fifth defendant relied upon the affidavits of Dr Tsacalos and medical documents for this proposition. The plaintiff pointed to descriptions within the medical notes such as "usually lives in Canada... came back to appear in Royal Commission", "lives [in] Canada, works as a snow groomer" and "living, usually in Canada" which were recorded by a medical practitioner. 4. The culmination of a state of mind pertaining to residency in Canada coupled with an expressed intention to remain in Australia for the Royal Commission alone, demonstrated that he was not settled in Australia for a purpose.

Plaintiff's Submissions

The plaintiff submitted that a security for costs order should not be granted for the following reasons: 1. The definition of "ordinarily resident" provides scope that a person can also reside in other places from time to time, whilst satisfying the test of being ordinarily resident in Australia. 2. The plaintiff had over the period of time (November 2008 and August 2016), continuously returned to Australia despite working at times overseas. It was suggested that the time spent in Australia and the other countries was roughly equal. 3. There is not one other place outside of Australia that the fifth defendant could nominate as where the plaintiff presently resides or ordinarily resides. 4. The period with which the plaintiff worked overseas was merely a historical place of work. The plaintiff presently resided in Australia for two years continuously since February 2015. 5. Although the plaintiff may have expressed a desire to live somewhere else that does not permit a finding that he is ordinarily resident outside Australia. Unlike the circumstances of the cases relied upon by the fifth defendant, there is no evidence the plaintiff in this matter has well-established connections or property outside of Australia. Further, there has been no capacity in the plaintiff to transfer to another country in conformity with any such intention (if one should be found). 6. The positive intention of the fifth defendant in seeking a security for costs order application by the fifth defendant was to stultify proceedings.

Conclusion: Threshold Question

Upon the evidence before this Court, and having regard to the aforementioned principles, I have come to the conclusion that the fifth defendant has failed to demonstrate that the plaintiff is ordinarily resident outside of Australia pursuant to r 42.21(1)(a) for the following reasons: 1. A person will be ordinarily resident in a place if he habitually and normally resides lawfully in such a place and does so for a settled purpose apart from temporary and occasional absences. It is not necessary to show settled purpose for an indefinite period but there must be a sufficient degree of continuity to be properly described as settled. 2. The plaintiff clearly has significant ties with Australia. He was born, educated and raised in Australia. His parents and siblings also reside in Australia. There is an available inference that the plaintiff was and remains an Australian citizen (the status of the plaintiff as an Australia citizen can be further deduced from the subpoena material relied upon by the fifth defendant, in which the plaintiff's passenger cards contained the written response "Australia" for the box that requested the completion of "national[ity] as shown on passport"). These are indications of a settled purpose to reside in Australia. 3. The relevant time period to make an assessment as to the plaintiff's ordinary residence is that at the time of the application: see Logue at [30] (per Weinberg J) and Corby v Channel Seven at [25] (per McCallum J). At the time of the filing of the motion, the plaintiff had been residing continuously in Australia as the parties submitted since early 2015, with a possible short trip to Canada in early 2016. 4. True it is that the plaintiff had appeared to lead a transient lifestyle between the period of 2010 and February 2015, residing in various countries from time to time, as submitted by the fifth defendant (it is to be noted there were discrepancies for the movement of the plaintiff in and out of Australia, particularly between 2012 and 2013, between the documents which were obtained from the Department of Immigration and Border Protection provided as an exhibit to the affidavit of Dr Tsacalos sworn 5 July 2017 and the written submissions attachment, both of which was relied upon by the fifth defendant), however, it is during that period, namely, between 2010 and February 2015, in which the plaintiff had consistently returned to Australia. The plaintiff appears to have spent on average, 9 months per year in Australia between 2010 and 2013. The exception was 2014 but travel in that year was unusual and represented effectively the end of the period of yearly travel and periods of residence in overseas countries by the plaintiff (with the possible exception of a short period of travel in 2016). 5. The majority of the time in which the plaintiff did travel, coincided with winter seasons in Canada, US and New Zealand indicating his travel coincided with work commitments. This is furthered by evidence disclosing his work as a snow groomer and the like. This evidence substantially aligned with the submission of the plaintiff that substantial portions of the travel concerned his "historical place of work". 6. There is very little evidence of a settled purpose to live outside Australia and certainly none since 2015. Counsel for the fifth defendant submitted that the plaintiff had disclosed an intention to return to Canada and to remain in Australia only for the duration of the Royal Commission. Substantial reliance was placed upon various comments recorded as being made by the Plaintiff within the medical documents (the intention of the plaintiff was similarly recorded in both Dr Tsacalos' affidavits). Although the medical documents record the plaintiff as saying "usually lives in Canada... came back to appear in Royal Commission" and "living, usually in Canada" there are considerable difficulties in that evidence establishing the plaintiff had a settled purpose to reside outside of Australia or even an intention to live in Australia only for the duration of the Royal Commission. 7. Even if the statements may be taken as an expression of an intention to live in Canada, the statements are at best a representation of a provisional decision to be ordinarily out of the jurisdiction (see the example provided in Logue at [12]). The plaintiff used the word "usually" which is equivocal with respect to future intentions for residence. The medical notes do not state, as such, that the plaintiff had no intention to reside in Australia only for the period of the Royal Commission. The words recorded are also equivocal, in that respect, as they may refer to past intentions or preferences or future ones or both. 8. Further, it would be a strained reading of the evidence to suggest that a report (in the form of short hand notes of a treating doctor for a psychological condition in a hospital) taken on a particular date, namely, 28 February 2015 over two years before the application encompassed a settled intention at the requisite time, two years after the date of the report. 9. The evidence indicated the plaintiff has a settled purpose in Australia. The evidence points to the plaintiff's lack of a financial capacity to travel overseas presently, even at the level he had in the past. There is no evidence before this Court as to a valid visa or approval to reside in any country than Australia. In any event, the absence of a valid visa or approval, and a failure to renew an available visa might be indicative of the plaintiff had no settled purpose to reside in any country other than in Australia. Further, in a lease document, the plaintiff has been noted as a tenant at a property leased by his father in East Jindabyne, NSW. This lease document, together with the plaintiff's reliance upon his father, again represents a connection to residence in Australia.
Accordingly, the power to order security for costs is not enlivened.

Discretionary Factors

For completeness, and in the likelihood the fifth defendant was found to have satisfied the threshold question, the following balance of discretionary factors, in any event, would result in the refusal of a security for costs order.

Jurisdiction/Enforcement

Pursuant to r 42.21(1A)(n), the ease and convenience or otherwise of enforcing a New South Wales court judgment or order in the country of a non-resident plaintiff is a discretionary factor relied upon by the fifth defendant. Putting aside my findings as to the ordinary residence of the plaintiff being in Australia (given the manner in which these discretionary considerations are to be addressed), the plaintiff has demonstrated he is a resident plaintiff in Australia. He is an Australian citizen; he has previously consistently returned to Australia and has remained in Australia for an extended period of time, up to and including the bringing of this application and its defence. The transient nature of the plaintiff prior to 2015 had at its epicentre, Australia. This conclusion is furthered by the plaintiff's current financial circumstance limiting any travel overseas, if that is, in fact, currently intended by the plaintiff.
The fact that the fifth defendant cannot identify a jurisdiction for this purpose is most likely a product of the fact that the plaintiff spent a preponderance of his time in Australia. In fact, the absence of the identification of another jurisdiction by the fifth defendant adds greater weight to the classification of the plaintiff as ordinarily resident in Australia.

Prospects of Success

The Court is required to consider the extent to which the plaintiff's claim is made in good faith and appears to be reasonably arguable: r 42.21(1A)(a) and (b): KP Cable Investments at 197. If the plaintiff's claim appears reasonably arguable it is not appropriate to attempt a more detailed assessment of the prospects of success: Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; [2004] NSWSC 664 at [37] (per Austin J).
In this matter, it was conceded by the fifth defendant that the claim had reasonable prospects of success. Further there was no issue as to the plaintiff's claim being made in good faith. It follows that the prospects of success weights as a discretionary factor in favour of the plaintiff.

Impecuniosity of the Plaintiff

It was submitted by the plaintiff that, pursuant to r 42.21(1A)(c), the plaintiff was impecunious. The term impecunious also appears in r 42.21(1B). Rule 42.21(1B) states as follows: If the plaintiff is a natural person, an order for security for costs cannot be made merely on account of his or her impecuniosity. That rule is derived from the principle that "a natural person who sues will not be ordered to give security for costs, however poor, is ancient and well established": Pearson v Naydler [1977] 1 WLR 899 at 902 and that poverty "is no bar to a litigant": Cowell v Taylor (1885) 31 Ch D 34 at 38; Oshlack v Richmond River Council (1998) 193 CLR 72. An impecunious plaintiff is thus someone who is impoverished: see Melville v Craig Nowlan & Associates Pty Ltd (2002) 54 NSWLR 82; NSWCA 32 at [21] (in that matter there was no contention that the plaintiff was impecunious).
The evidence regarding this factor was limited and not entirely conclusive.
The plaintiff in its written submissions referred to an unsigned Evidentiary Statement which was an annexure to the affidavit of Dr Tsacalos sworn 17 May 2017 and the Statement of Particulars, in which the plaintiff's case is that his injuries and disabilities have rendered him severely functionally affected, the consequence of which is that the plaintiff does not have employment and is not expected to be employed in the immediate future. He had to borrow money on multiple occasions from his father. In an annexure to the affidavit of Ms Powell dated 10 July 2017, the plaintiff was described to be in a very limited financial position. The plaintiff had in his bank account an inconsistent amount of savings. He has a personal loan of approximately $21,000 that is unpaid, a credit card with a carry-over balance each month, and has no net assets.
However, reliant upon the Ms Powell affidavits the plaintiff is also in receipt of a disability support pension of approximately $900 per fortnight. In a statement from his father, the plaintiff's accommodation and living costs was covered by his father, who upon that statement also appeared to be in a limited financial position.
The submissions by the fifth defendant provide no further aid in this matter. It was eventually submitted that they were unaware of whether or not the plaintiff was impecunious or not.
Clearly, the plaintiff is in straitened financial circumstances and, in the absence of his father's assistance, he would be impoverished. I am inclined to the view the plaintiff should not be found in the circumstances to be impecunious, although I accept the conclusion is borderline. In any event, r 42.21(1B) provides that an order for security for costs cannot be made merely on account of a plaintiff's impecuniosity, where the plaintiff is a natural person and I note further the opinion expressed by Heydon J in Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 ("Jeffrey v SST Consulting") (at [91]) that mere impecuniosity is not an absolute barrier to the ordering of security for costs against a natural person. The overriding principle of access to justice must be considered.

Stultification of Proceedings

Another relevant consideration is whether the making of the order would unduly stultify the plaintiff's ability to pursue the proceedings. The onus of establishing that the making of a security for costs order would unduly stultify the plaintiff's ability to pursue proceedings rests on the party asserting it: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 at [4] and Li v State of New South Wales [2013] NSWCA 165 at [45]. The onus falls, therefore, upon the plaintiff.
To the extent that a party asserts that an order for security be provided would stultify the proceedings, he must satisfy the Court that those who stand behind him or stand to benefit from any success in the proceedings are unable to provide security for costs: Idoport v NAB at [66]; Bell Wholesale Co Pty Ltd v Gates Export Corporation (No 2) (1984) 52 ALR 176 at 179. In other words, a proceeding cannot be regarded as stultified unless those who stand behind the impecunious plaintiff are unable (not unwilling) to provide the requisite security for costs: Hastings v Hastings [2009] NSWCA 294 at [14] (per Macfarlan JA).
Courts have appeared to be reticent to order security for costs where its effect would be to shut out a plaintiff from proceeding with a claim that is bona fide and not obviously frivolous or vexatious: Porzelack KG v Porzelak (UK) Ltd [1987] 1 WLR 420 at 426. In Powell v Aymkone Pty Ltd [2005] NSWSC 1261 at [11]-[12] (as per Young CJ in Eq) at [12], it was found that one of the matters which guide the Court in the exercise of its discretion is that it should not stultify litigation by shutting out valid claims merely on the ground of the poverty of the plaintiff. The Court must have a concern to achieving a balance between ensuring that adequate and fair protection is provided to the defendant, as well as avoiding injustice to an impecunious plaintiff by unnecessarily shutting it out or prejudicing it in the conduct of the proceedings: Idoport v NAB at [47].
Having regard to the discussion of the plaintiff's financial position under the heading of impecuniosity two conclusions may be readily reached: 1. The plaintiff's financial limitations are such that he would not have the capacity to meet his own costs, let alone the defendants' costs if the latter were successful at trial. A security for costs order would effectively stay the proceedings indefinitely as against the fifth defendant. 2. If the plaintiff's father is to be treated as a person "standing behind the plaintiff" as contemplated in Idoport, in my view, the conclusion should be reached that he is unable to provide the requisite security for costs, thereby nullifying this consideration as one in favour of the application.
As to the second consideration it must be noted that despite the financial aid of the plaintiff's father, the father is himself also in a limited financial position and would be unable to aid the plaintiff in this matter. The amount of security of costs of a "greater than $120,000" sought, or even a much smaller amount would be an amount that far exceeds the current financial ability of the plaintiff and his father.
In my view, the granting of an order for security for costs would stultify the proceeding and thus is a strong discretionary factor against the awarding of the same.
It is unnecessary for me, in these circumstances, to reach a conclusion as to how the contribution of the first defendant to the fifth defendant's legal costs may contribute to this conclusion, although this factor is one which might, in appropriate circumstances, go to the broader balancing of discretionary factors in the interests of justice.

Delay

A delay in the bringing of an application for security is a factor in the exercise of the discretion: Idoport v NAB at [68]. Delay will weigh less significantly if the hearing is not imminent or there has been some forewarning or foreshadowing of an application. It has been found that the longer the delay, and the greater the costs the plaintiff has been allowed to incur, the less likely an order will be made: Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1985) 1 NSWLR 114.
It was submitted by the plaintiff that the bringing of this application has been delayed and that the preparation for this application, namely, the necessary provision of an evidentiary statement from the plaintiff, has caused great distress to the plaintiff. However, I agree with the submissions of the fifth defendant that there was no evidence as to any prejudice suffered by the plaintiff as a result of delay. That distress was referred to in limited detail in the evidence of Ms Powell. Further, there was no evidence as to how that distress had any effect upon this application.

Public Importance

Public importance pursuant to r 42.21(1A)(g) is a relevant discretionary factor where there is a curial determination on an area of law which may affect matters of public importance: see Jazabas v Haddad [2008] NSWSC 593 at [49] (per Harrison AsJ). Further, public importance may arise where a determination would benefit a wider group, other than that of the plaintiff, or a claim was brought to pursue, uphold or maintain an interest common to other members of the community: Smail v Burton [1975] VR 776 at 780 (per Gillard J); Merribee Pastoral Industries v Australia and New Zealand Banking Group Ltd (1998) 193 CLR 502 at [31]; Soh v Commonwealth of Australia (2006) 231 ALR 425 at [26].
The plaintiff submitted that security for costs should not be ordered because the claim was a matter of significant public importance. That submission was predicated upon the basis that the claim was demonstrative of systemic abuse by the Uniting Church of Australia. It appears to me that there is insufficient basis, on a limited argument and the evidence before the Court, to establish this contention for the purposes of r 42.21(1A)(g).
The case does not otherwise fall within the aforementioned principles as there is no evidence that a determination would benefit a wider group or pertain to a curial determination on a particular area of law. On the limited evidence before the Court, I do not consider this to be a discretionary factor in favour of the plaintiff. In coming to this conclusion I should not be taken, however, as accepting that the circumstances relied upon by the plaintiff could not, in an appropriate case, represent a relevant discretionary factor in favour of a plaintiff.

Conclusion

For those reasons, the plaintiff does not fall within the scope of r 42.21(1)(a) and the application for security for costs by the fifth defendant must therefore be refused. In the event the circumstances were such that the threshold question was enlivened, I would, for the reasons given above, refuse to exercise of my discretion to order the plaintiff to provide security for the fifth defendant's costs in these proceedings. Directions will be made for the disposition of any issues as to costs of the application.

ORDER AND DIRECTIONS

I make the following order and directions: 1. The amended notice of motion is dismissed. 2. In the event that the parties agree as to orders for costs of the application, short minutes of order should be filed reflecting that agreement within 7 days of publication of this judgment. In the absence of agreement, the plaintiff shall file and serve a short submission in support of any application for costs within 14 days of publication of this judgment. The fifth defendant shall file any submissions in reply within a further 14 days of service of those submissions by the plaintiff. If a party wishes to have an oral hearing in relation to the question of costs of the application that contention should be incorporated in their submissions. Otherwise, the Court will determine any disputed question of costs on the papers.

Amendments 01 May 2018 - Publication restriction lifted. 23 May 2018 - [12] and [16] - typographical error amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 May 2018

e & All Risks Insurance Co Ltd (1985) 1 NSWLR 114 Wollongong City Council v Legal Business Centre Pty Ltd [2012] NSWCA 245 Zakka v George Elias t/as Cadmus Lawyers [2012] NSWCA 277 Texts Cited: F Stroud, Stroud's Judicial Dictionary of Words and Phrases (5th ed, 1986) Category: Costs Parties: Angus Ollerenshaw (Plaintiff) The Uniting Church in Australia Property Trust (First Defendant) Ian Paterson (Second Defendant) Adrian Nisbett (Third Defendant) Craig Treloar (Fourth Defendant) Timothy May (Fifth Defendant) Representation: Counsel: E G Romaniuk SC with S J Maybury (Plaintiff) K Eastman SC (First Defendant) S Selbakumaran (Second Defendant) S Gray (Fifth Defendant)

Relevant Principles

Rule 42.21(1)(a) of the UCPR is in the following terms: (1) If, in any proceedings, it appears to the court on the application of a defendant: (a) that a plaintiff is ordinarily resident outside Australia… the court may order the plaintiff to give such security as the court thinks fit, in such manner as the court directs, for the defendant's costs of the proceedings and that the proceedings be stayed until the security is given.
The principles applicable to the determination of the threshold question deriving from the sub-rule may be briefly stated.
The onus falls upon the applicant for security for costs to satisfy the threshold condition: Logue v Hansen Technologies Ltd (2003) 125 FCR 590; [2003] FCA 81 ("Logue") at [19] and [30] (per Weinberg J); see also Cornelius v Global Medical Solutions Australia Pty Ltd; Farag v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65 at [17] (per Macfarlan JA) and [56]-[59] (Ward JA), Green Camel Pty Ltd v Urban Ecological Systems Ltd [2017] NSWSC 362 ("Green Camel") at [20] (per Ward CJ at Eq); Wollongong City Council v Legal Business Centre Pty Ltd [2012] NSWCA 245 at [29] (per Beazley JA, with whom Meagher and Barrett JJA agreed). The determination of that question relates to the status of the plaintiff at the time of the motion: Logue at [30]. That question is one of fact and degree: Logue at [18].
The purpose of ordering an security for costs "against an applicant ordinarily resident outside Australia is to create a fund within this country, against which a successful respondent may enforce a judgment for costs thereby avoiding the risks, uncertainties and delays associated with attempts to enforce such a judgment in the applicant's claimed country of residence" which is overseas: Logue at [18].
In Logue, Weinberg J reviewed the authorities as to the meaning of the expressions "resident" and "ordinarily resident". His Honour observed (at [20]-[22]): [20] The meaning of the expression "ordinarily resident out of the jurisdiction", which is the English formulation, is discussed in some detail in Vol 1 of the White Book Service 2001 at par 25.13.2. In Levene v Inland Revenue Commissioners [1928] AC 217 Lord Warrington of Clyffe observed at 232 that "ordinarily resident" had no technical or special meaning. In particular, it was impossible to restrict its connotation to its duration. For the purpose of determining whether under the Income Tax Act a person is "ordinarily resident" in the United Kingdom in any given year, "the usual ordering of his life must be judged by what he does in that and preceding years …". [21] In Inland Revenue Commissioners v Lysaght [1928] AC 234 Viscount Sumner, said at 243, that the word "ordinarily" could be contrasted with expressions such as "usually", or "most of the time", or "exclusively". Ordinarily could also be contrasted, on the other hand, with expressions such as "occasionally", or "exceptionally", or "now and then". His Lordship suggested that the converse to "ordinarily" is "extraordinarily" and that part of the regular order of a man's life, adopted voluntarily, and for settled purposes, is not "extraordinary". [22] In R v Barnet London Borough Council, Ex parte Nilish Shah [1983] 2 AC 309 it was held by the House of Lords that, in the context of the Education Act 1962 (UK) and the Education Act 1980 (UK), the term "ordinarily resident" should be construed according to its ordinary and natural meaning. Lord Scarman, with whom the other members of the House of Lords agreed, referred to Levene and Lysaght with approval and observed at 343 that the question whether a person is "ordinarily resident" in a place is to be resolved in favour of that conclusion if he habitually and normally resides lawfully in such place from choice and for a settled purpose, apart from temporary or occasional absences, even if his permanent residence or "real home" is elsewhere. His Lordship emphasised at 344 that there must be a degree of settled purpose. That does not mean that the "propositus" intends to stay where he is indefinitely. Indeed his purpose, while "settled", may be for a limited period. However, the purpose of living where one does must have a sufficient degree of continuity to be properly described as "settled".
Further, Weinberg J noted that English authorities had suggested that it may be possible for a person to have two ordinary residences, one within for the purposes of the present case, the (Australian) jurisdiction and one outside. His Honour stated that, in such a case, the Court had power to order security for costs, but that that person's connection with the jurisdiction, in which the proceedings were commenced, would be relevant to the exercise of the discretion. His Honour stated: "the closer the connection, the greater the relevance. If the claimant has an established home, and is resident, though not 'ordinarily resident' in that country, security will rarely be ordered" (at [24]). Weinberg J provided some examples as to the meaning of ordinarily resident from F. Stroud, Stroud's Judicial Dictionary of Words and Phrases (5th ed, 1986) as follows (at [25]): • a resident who expressed an intention in certain circumstances to leave the country at the conclusion of a case could not on such a provisional decision be said to be "ordinarily resident" out of the jurisdiction: Appah v Monseu [1967] 1 WLR 893; • where two persons, both aged 17, came to England, the first to settle and further his education, the second to further his education and then leave, the former was held by the Queen's Bench Division to be "ordinarily resident" but not the latter: R v Barnet London Borough Council, ex parte Nilish Shah [1981] 2 WLR 86. This case subsequently found its way to the House of Lords, along with several other similar cases, in R v Barnet London Borough Council, Ex parte Nilish Shah [1983] 2 AC 309;…
At [26], his Honour observed: What these cases, and others like them seem to establish is that the test for ordinary residence depends to a significant degree upon the state of mind of the person whose residence is in question. The language used in a number of the cases focuses upon whether the person habitually and normally resides in the jurisdiction, and does so for a settled purpose.
Some of the factors which have been taken into account when considering whether an applicant is "ordinarily resident" have included citizenship, country of birth, education, family connections, children, school of children, established home, place of work, and assets within the jurisdiction: see Logue at [31]; Leyvand v Barasch (High Court of Justice, 15th February 2000 unreported; 2000 WL191256) at [5] (per Lightman J); Corbett v Nguyen [2008] NSWSC 1265 at [16]-[21] (per White J); Corby v Channel Seven Sydney Pty Limited [2008] NSWSC 245 ("Corby v Channel Seven") at [24]-[28] (per McCallum J); Gujarat NRE Australia Pty Limited v Gary Alexander Williams [2006] NSWSC 992 at [30] (per Einstein J).
Where the threshold question was satisfied, an order for security for costs involved the exercise of discretion by the Court: Green Camel at [22]; Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 744 ("Idoport v NAB") at [59].
It is well settled that that discretion is unfettered and should be exercised having regard to all the circumstances of the case without any predisposition in favour of the award of security: KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 ("KP Cable Investments") at 196 (per Beazley J). Notwithstanding the "broad unfettered discretion", Beazley J set out the "established guidelines" with respect to a security for costs application: KP Cable Investments at 196-198. These discretionary considerations are now reflected, by and large, in the current provisions of r 42.21(1A) of the UCPR (see Green Camel at [23]). However, Weinberg J in Logue (at [38]) considered that a party who is not ordinarily resident in this country and had no assets within the jurisdiction is normally ordered to provide security for costs. In any event those factors are matters of great weight in the exercise of discretion of the Court in that respect.

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