Ground 3 (failure to address unjust enrichment and estoppel by conduct)

1. If Mr Seymour is relying on the issues of unjust enrichment or estoppel by conduct as part of any proposed reply to Mrs Jaeger's counterclaim he would need to file a reply. In Mr Seymour's submissions as to the issues of unjust enrichment and estoppel by conduct that may arise he refers to factual matters which would need to be the subject of evidence at the trial. It would have been premature for the magistrate to consider the issues of unjust enrichment and estoppel by conduct in relation to the behaviour of Mrs Jaeger when these issues were not pleaded.
2. I am satisfied there was no requirement for the magistrate to consider unjust enrichment or estoppel by conduct in considering Mrs Jaeger's application for leave to file a counterclaim, therefore there can be no error by the magistrate in failing to address those issues.
3. This ground of appeal is dismissed.

Ground 4 (error of law in considering fairness and prejudice to the defendant)

1. In considering Mrs Jaeger's application for leave to file the counterclaim, the magistrate took into account the prejudice to either party if he were to allow the application. Given that the function of a statement of claim, defence and counterclaim are similar to that of pleadings as I have referred to in pars 37 - 38, this was a relevant and important consideration.
2. The magistrate considered at what stage in the proceedings the application was made, the previous proceedings in New South Wales, whether Mr Seymour would be taken by surprise by the counterclaim, why the counterclaim was filed out of time and the duties of the court in s 13 of the MCCPA. Once he had considered those matters he came to the view that the prejudice to Mr Seymour was minor or as he described it 'no direct form of prejudice would be experienced by Mr Seymour'.
3. Whether it was described as fairness or prejudice to a party if the application was granted, this was the most relevant matter for the magistrate to consider in relation to the application. There was no error by the magistrate in taking into account the matter of prejudice or fairness to the parties.
4. This ground of appeal is dismissed.

Ground 5 (error in considering the defendant may not pursue her counterclaim)

1. On 18 May 2018 the magistrate made comment of his views as to whether Mrs Jaeger would pursue her counterclaim.[40] When these comments are read in context with what all the magistrate said on 18 May 2018, they do not relate to the considerations he took into account when deciding whether to grant leave for Mrs Jaeger to file the counterclaim. When the magistrate made these comments, he had already dealt with the application for leave to file the counterclaim. Most of these comments were made in the context of discussing further programming orders for the matter to proceed to trial.
2. The comments were made in relation to the magistrate's views as to whether the proceedings would proceed to trial and whether Mrs Jaeger's counterclaim would be pursued if Mr Seymour did not proceed with his claim. They were comments made after the magistrate had given his reasons and decision on the application for leave to file a counterclaim.
3. The magistrate's reasons for allowing the application to file the counterclaim were confined.[41] His comments about whether the defendant would pursue the counterclaim did not form part of those confined reasons.
4. This ground of appeal is dismissed.

The defendant's application for security for costs

1. Mrs Jaeger had previously made an application for security for costs which was dismissed by the magistrate on 7 December 2017. The application made by Mrs Jaeger on 14 March 2018 was based on events that occurred since the dismissal on 7 December 2017 of Mrs Jaeger's previous application for security for costs.
2. The power of the Magistrates Court to order security for costs arises pursuant to Division 3 of the MCCPR. These rules were operational from 1 October 2016. The relevant rules that applied to this application were:

Claimant includes a defendant counterclaiming in respect of a claim not arising out of the claim made against the defendant.

Factors that are not grounds for ordering security for costs

94B The Court may order security for costs to be given by a claimant, but an order must not be made merely on account of the poverty of the claimant or the likely inability of the claimant to pay any costs which may be awarded against the claimant.

94C Without limiting rule 94B, the Court may order security for costs to be given by the claimant in the following circumstances -

(a) the claimant is ordinarily resident out of the jurisdiction, notwithstanding that the claimant may be temporarily within the jurisdiction;

(b) the claimant is about to depart from the jurisdiction;

(c) the claimant enjoys within the jurisdiction some privilege which renders the claimant immune, wholly or partially, from the normal processes of execution;

(d) the claimant is an undischarged bankrupt or a person who has suspended, or given notice of suspension of, debts;

(e) the claimant is a company in liquidation or under official management, or a company in respect of which a receiver of its property has been appointed;

(f) the claimant is a relator suing for the enforcement or declaration of some public right or to have some public trust carried out or some charitable scheme settled;

(g) the claimant is in default in respect of any costs ordered to be paid by the claimant in any proceedings previously brought by the claimant against the same defendant or another defendant for substantially the same cause of action or in relation to substantially the same subject matter;

(h) the claimant is a person who has in the past vexatiously brought litigation against the same defendant or against any other defendant;

(i) the claimant is suing the Sheriff in respect of anything done or omitted to be done by the Sheriff or the Sheriff's officers in the execution of any judgment of the Court.

94D (1) The granting of security may be in the discretion of the

(2) In determining whether an order should be made, the Court may take the following into consideration -

(b) what property within the jurisdiction may be available to satisfy any order for costs against the claimant;

(c) whether the normal processes of the Court would be available within the jurisdiction for enforcement of any order for costs made against the claimant.

94E In fixing security the Court may direct the form and manner in which the security is to be given and may from time to time vary the amount and form of the security.

1. It is clear from his reasons that in considering the application by Mrs Jaeger for a security for costs order against Mr Seymour the magistrate also considered the principles in s 13 and s 16 of the MCCPA.
2. The rules relating to security for costs in Magistrates Court referred to in par 111 mirror those of O 25 of the Rules of the Supreme Court 1971 (RSC). In those circumstances, cases involving the interpretation of O 25 RSC are relevant when the Magistrates Court considers an application for security for costs.
3. The magistrate considered the general principles for making an order for security for costs as set out by Edelman J in Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd,[42] Alfaro v Brokesova[43] and Westpac Banking Corporation v Ninan [No 3].[44] He acknowledged that Mr Seymour was not a corporate entity and therefore the provisions of s 1335(1) of the Corporations Act 2001 (Cth) did not directly apply.[45]
4. The magistrate relied upon an affidavit of Mr Morrison sworn on 14 March 2018, estimating costs from the date of the application until the completion of the trial at approximately $36,000.
5. The magistrate considered the following matters in exercising his discretion:

(a) The strength and bona fides of Mr Seymour's case. The magistrate was of the view that as the case involved a verbal contract and it was not an overwhelming case.[46]

(b) The likelihood of Mr Seymour being unable to pay Mrs Jaeger's costs if unsuccessful.[47]

(c) Whether granting the application would be oppressive to Mr Seymour.[48]

(d) In relation to the New South Wales proceedings between the parties, Mr Seymour had not paid to Mrs Jaeger the $7,500 costs ordered in those proceedings for a period of approximately 15 months.[49]

(e) Mr Seymour has no assets within Western Australia or significant or any assets available outside Western Australia.[50]

(f) There was a degree of impecuniosity on the part of Mr Seymour and this had not been caused by Mrs Jaeger.[51]

(g) The application had been brought promptly by Mrs Jaeger.[52]

(h) Mr Seymour is a pensioner who resided in New South Wales and had no connection to Western Australia.[53]

1. In the material filed by Mr Seymour in relation to the applications there was no dispute as to items (d), (e) and (h) in [117]. These matters were relevant grounds for the magistrate to consider pursuant to r 94C(a) and r 94C(g) of the MCCPR. The matters listed in r 94D(2) of the MCCPR for the court to consider when exercising its discretion are not exclusive or mandatory.
2. After considering the amount claimed by Mr Seymour in the proceedings, the previous interlocutory applications, the claim was now a general procedure claim, the costs estimate in the affidavit of Mr Morrison, the likely length of the trial, the complexity of the proceedings and what amount would not be oppressive to Mr Seymour proceeding with the claim the magistrate fixed an amount of $18,000 for security for costs.
3. Mr Seymour's grounds of appeal in relation to the security for costs order made against him can be summarised as follows:
   1. The magistrate erred in ordering security for costs in the sum of $18,000 as it was oppressive (Document 1, par 21 and par 33) (Ground 1).
   2. The magistrate erred in allowing a second application for security for costs by the defendant when the first application for security for costs was dismissed (Document 1, pars 23 - 25) (Ground 2).
   3. The magistrate erred in failure to give adequate consideration to the delay in the making of the application (Document 1, pars 26 - 28) (Ground 3).
   4. The magistrate erred in failing to have proper regard to r 94B and r 94D of the MCCPR (Document 1, pars 29 - 31) (Ground 4).
   5. The magistrate erred in considering the plaintiff was either unable or unwilling to pay the New South Wales costs order made against him (Document 1, pars 34 - 35) (Ground 5).
   6. The magistrate failed to give due regard to the authorities cited by the defendant (Document 1, par 37) (Ground 6).

Ground 1 (error in ordering security for costs in the sum of $18,000 as it was oppressive)

1. In this ground Mr Seymour submits the magistrate erred by ordering security for costs in the sum of $18,000 as it was oppressive as he was aware Mr Seymour was receiving an aged pension, resided in rented premises and had no real estate assets.
2. Oppression when raised in reply to an application for security for costs usually is an allegation that the application is brought for the purpose of shutting out the plaintiff from its claims.[54]
3. When considering the history of this matter including the New South Wales proceedings, the defence and counterclaim filed, there is no basis for an inference that Mrs Jaeger's application was made for the purpose of shutting out Mr Seymour's claim.
4. Mr Seymour's financial position and the amount of the dispute were not the only matters the magistrate took into consideration in granting the application as I have referred to [117].
5. The magistrate in fixing the amount of security for costs to be ordered referred to the principles set in Crawley Investments Pty Ltd v Noble Group Ltd [No 2][55] and the court's duties pursuant to s 13 of the MCCPA.
6. The determination of the appropriate amount to be provided by way of security involves the exercise of the discretion by reference to matters of impression rather than mathematics.[56]
7. Mr Morrison in his affidavit in support of Mrs Jaeger's application for security for costs suggested an amount of $36,000.
8. In consideration of all the factors referred to in [117] and [126] - [127], it cannot be said that the amount of $18,000 was so oppressive or unreasonable in all the circumstances that the magistrate fell into error in setting an amount of $18,000.
9. This ground of appeal is dismissed.

Ground 2 (error in allowing a second application for security for costs)

1. Because the magistrate dismissed Mrs Jaeger's first application for security for costs on 2 December 2017, Mr Seymour submits the magistrate erred in allowing Mrs Jaeger's second application for security for costs.
2. The MCCPA and MCCPR do not limit the number of applications that a party can make for security for costs. An application for security for costs can be made at any time.
3. When the second application for security for costs was made by Mrs Jaeger, the circumstances were different to when the first application was made. The proceedings were no longer minor case proceedings. A statement of claim and defence had been filed by the parties. The $7,500 costs order made against Mr Seymour in the New South Wales proceedings had not been paid for a further four months.
4. Had the circumstances not changed when the second application for security for costs was made by Mrs Jaeger, the first decision on the first application in absence of an appeal would create an estoppel against a further application.
5. As the circumstances had changed, the magistrate did not fall into error in hearing the application. It was not 'a second bite of the cherry' as described by Mr Seymour.
6. This ground of appeal is dismissed.

1. An application for security for costs must be made promptly. The further a plaintiff has proceeded in an action and the greater the costs it has been allowed to incur without steps being taken to apply for an order for security for costs, the more difficult it will be to persuade the court that such an order is not, in the circumstances, unfair or oppressive.[57]
2. For the reasons I have referred to in [83] - [85] and [91] - [94], it could not be suggested that there was any significant delay in Mrs Jaeger filing her second application for security for costs. As I have referred to in [117](g) the magistrate considered the application had been made promptly.
3. This ground of appeal is dismissed.

Ground 4 (failure to have proper regard to r 94B and 4 94D of the MCCPR

1. In this ground, Mr Seymour submits the magistrate erred in failing to have proper regard to r 94B and r 94D of the MCCPR. It is not submitted the magistrate had no regard to these rules.
2. In the magistrate's reasons for allowing the application for security for costs, he did not specifically mention the rules referred to in par 111. Those rules were referred to by Mr Seymour in his submissions dated 19 March 2018. Those rules mirror O 25 SCR. The magistrate in his reasons referred to authorities which set out the principles under O 25 SCR for making an order for security for costs.
3. Rule 94B of the MCCPR precludes an order for security for costs being made 'merely' on account of the poverty of the claimant or the likely inability of the claimant to pay any costs which may be awarded against the claimant. As I have identified in [117], the magistrate made the order for security for costs based on a combination of reasons. He did not breach r 94B of the MCCPR in making the security for costs order.
4. The reasons of the magistrate in making the order for security for costs clearly indicate that in exercising his discretion he did take into consideration the matters in r 94D(2)(a) and r 94D(2)(b) of the MCCPR.
5. This ground of appeal is dismissed.

Ground 5 (error in considering the plaintiff was either unable or unwilling to pay the New South Wales costs order made against him)

1. The magistrate in considering Mrs Jaeger's application for security for costs, gave some weight to the fact that Mr Seymour had not paid the $7,500 costs awarded to Mrs Jaeger in the New South Wales proceedings.
2. The costs order in New South Wales related to the same issue between the same parties, the subject of the proceedings before the magistrate in Bunbury Magistrates Court. Why the costs had not been paid by Mr Seymour may not have been a relevant consideration for the magistrate but the fact that the costs related to the same dispute were outstanding for 15 months was a highly relevant consideration for the magistrate to consider in determining whether to exercise his discretion to grant the application. Whether Mrs Jaeger had ever sought to enforce the costs order was an irrelevant consideration.
3. This ground of appeal is dismissed.

Ground 6 (failure to give due regard to the authorities cited by the defendant

1. There is no merit in this ground of appeal for the same reasons I have referred to in [67] - [69].
2. This ground of appeal is dismissed.

1. It has not been demonstrated by Mr Seymour that the magistrate erred in making the orders on the three applications the subject of the appeal. Accordingly, the appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] Seymour v Jaegar [2019] WASCA 19 (Jaegar spelt incorrectly, correct spelling is Jaeger)

[2] Hearing on 20 April 2018 before Magistrate Mahon, ts 8.

[3] Seymour v Jaeger [2017] NSWSC 25.

[4] A number of interlocutory applications were made by the parties in relation to this matter which were dealt with by various magistrates before the applications the subject of this appeal were heard. These applications include a default judgment application made by Mr Seymour and security for costs application made by Mrs Jaeger which were both dismissed. At the relevant time those applications were made the proceedings were a minor case claim.

[5] Googe v Spoljaric [2017] WADC 99 [13] - [15].

[6] Xu v Griffiths [2019] WADC 126 [17] (Glancy DCJ).

[7] The proceedings originally were a minor claim but on 7 December 2017 the magistrate ordered they should proceed as a general procedure claim pursuant to s 28(3)(b) MCPPA. The magistrate gave further reasons for this decision on 18 May 2018.

[8] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, 203.

[9] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].

[10] Avsar v Binning [2009] WASCA 219 [37].

[11] House v The King [1936] HCA 40; (1936) 55 CLR 499.

[12] See also Dodds v Kennedy [2011] WASCA 32 [4].

[13] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 518 - 519.

[14] Jones v Darkan Hotel [2014] WASCA 133 [31].

[15] Dodds v Kennedy [2011] WASCA 32 [5] and Morton Seed and Grain Pty Ltd v Corser and Corser [2006] WADC 90; (2006) 43 SR (WA) 182 [15].

[16] MCPPA s 3.

[18] Kimberley Downs Pty Ltd v The State of Western Australia (Unreported, WASC, Library No 6414, 25 August 1986) (Staples M).

[19] Mickelberg v 6PR Southern Cross Radio Pty Ltd [2002] WASCA 270 [29].

[20] Coxon v Wilson [2016] WASCA 48 [13].

[21] Fazio v The City of Melville [No 2] [2013] WADC 147 [16].

[22] Hitchcock v Goldspan Investments Pty Ltd [No 3] [2015] WASC 277 [10] - [16].

[23] Pettit v Evolution Mining Ltd [No 2] [2017] WADC 68 [6] - [12], ts 70, 18 May 2018.

[25] ts 70 and ts 71, hearing on 18 May 2018.

[26] Titelius v Crowe [2017] WADC 116 [68] (Staude DCJ).

[27] Dare v Pulham [1982] HCA 70; 148 CLR 658, 664.

[29] Rule 16(1)(n) MCCPR.

[30] Velez Pty Ltd v Tudor [2011] WASCA 218.

[31] Manonai v Burns [2011] WASCA 165 [56].

[33] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589.

[34] Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363.

[35] Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 531.

[36] Seymour v Jaege****r [2017] NSWSC 25.

[37] Wu v Zhao [2018] NSWSC 1182 [47] - [50].

[38] Waite v Hennah [2019] WASC 468 [79] - [80] (Smith J).

[39] Orders 2 and 4 made by Magistrate Mahon on 7 December 2018.

[40] ts 82, ts 87 and ts 88, 18 May 2018.

[42] Westonia Earthmoving Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2013] WASC 57.

[43] Alfaro v Brokesova [2013] WASCA 38.

[44] Westpac Banking Corporation v Ninan [No 3] [2016] WASC 250.

[54] Jaddcal Pty Ltd v Minson [No 2] [2011] WASC 138 [15] (Le Miere J).

[55] Crawley Investments Pty Ltd v Noble Group Ltd [No 2] [2015] WASC 16 [28].

[56] Four Vanguard Services E Navagacao Lda v ENI Australia Ltd [2014] WASC 473 [4] and Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [2011] WASCA 118 [27].

[57] Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd [1987] FCA 102; (1987) 16 FCR 497, 514.