Smyers v State of New South Wales

Catchwords: CIVIL PROCEDURE – security for costs – where plaintiff claims he suffered damages as a result of criminal proceedings instituted against him without reasonable and probable cause – plaintiff resident outside Australia – no assets in Australia – where the State claims its defence is strong – security for costs ordered

Legislation Cited: Civil Procedure Act 2005 (NSW)
Crimes Act 1900 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10
Buckley v Bennell Design & Construction Pty Ltd (1974) 1 ACLR 301
Carrano Investment Holding Pty Ltd v Siennamia Investments Pty Ltd [2022] NSWCA 262
Connop v Varena Pty Ltd [1984] 1 NSWLR 71
Jazabas Pty Ltd v Haddad [2007] NSWCA 291
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43
Li v State of New South Wales [2013] NSWCA 165
Live Board Holdings Ltd v Cody Live Pty Ltd [2017] NSWCA 302
Morris v Hanley & Ors [2001] NSWCA 374
Mothership Music Pty Ltd v Flo Rida (aka Tramar Dillard) [2012] NSWCA 344
P S Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321; [1991] HCA 36
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Sagacious Procurement Pty Limited) V Symbion Health Limited [2007] NSWCA 205

Category: Procedural rulings

Parties: Trent Galbraith Smyers (Plaintiff)
State of New South Wales (First Defendant)
Office of Director of Public Prosecutions (Interested Party)

Representation: Counsel:
J Widjaja (Respondent/Plaintiff)
R Hudson (Applicant/Defendant)
Solicitors:
El Baba Lawyers (Plaintiff)
Crown Solicitors (First Defendant)
Office of Director of Public Prosecutions (Interested Party)

File Number(s): 2023/84128

Publication restriction: Nil

JUDGMENT

1. In 2017 Mr Smyers was the subject of a complaint about an alleged sexual assault, to which police responded, with the result that he was arrested and charged under s 61I of the Crimes Act 1900 (NSW), a buccal swab was taken and he was refused bail by police. He was later granted bail by the Local Court, on conditions. The prosecution was eventually discontinued in July 2019.

2. In 2023 Mr Smyers brought these proceedings. By his November 2024 amended statement of claim he pursues damages of over $9 million for a psychiatric injury, as well as significant economic loss he claims he has suffered, including for the costs he incurred in defending the prosecution before it was dismissed, reputational damage, pain and suffering and extra-curial punishment for a matter which had been wrongly prosecuted.

3. Mr Smyers claims that the damages he had suffered were the result of police failings of which the prosecutor had been aware, arresting police officers not having had the requisite intent to prosecute the charge and the prosecuting officer having instituted and maintained proceedings against him without reasonable and probable cause. The results including that he was the subject of battery during his arrest, he had been falsely imprisoned and the proceedings had been maintained and prosecuted maliciously. Mr Smyers also pursues aggravated damages for the alleged malicious prosecution, as well as exemplary damages.

4. Mr Smyers’ claims are all defended by the State. But the parties have still not yet served all their evidence and the matter, which has a 10-day estimate, has not yet been listed for hearing.

5. This judgment deals with the State’s application for an order for security for costs, which Mr Smyers opposes, even though there is no issue that he now lives overseas and has no assets in the jurisdiction and that any order in favour of the State could not be enforced against Mr Smyers in Australia.

6. The motion is supported by affidavits sworn by Ms Ryan, a solicitor in the employ of the Crown Solicitor. She there explaining the matter’s procedural history, which included the pursuit of particulars; Mr Smyers’ pursuit of subpoenas for production of documents which were challenged by motion; an agreement in relation to a claim of legal professional privilege in respect of certain documents; the filing of the amended statement of claim; various orders which Mr Smyers did not comply with; and the parties’ dispute about the provision of security for the State’s expected costs.

7. The State has assessed its costs of defending Mr Smyers claims to be about $72,000 to date; expected further costs of $120,000 to the date of trial; and total costs after hearing of $260,000. With the likely cost of overseas enforcement, if the State succeeds in defending Mr Smyers’ claims, its total costs being estimated to amount to some $338,506.

8. This estimate has not been challenged.

9. In his evidence Mr Smyers explained his education, employment and financial position before he was charged in 2017 and his then career expectations, as well as his subsequent employment and education history in Australia and, after the charge was dismissed, in the United States. He having returned to live permanently there in February 2022, where he is now in employment in which he earns some USD$110,000 per annum.

10. Despite this Mr Smyers claims that he is impecunious and unable to meet any order for security. That is in issue, his evidence not being supported by any other disclosure of his financial position, assets or liabilities.

The orders pressed

11. The orders pressed sought security only for a limited part of the State’s estimated future costs:

“First tranche of security

1. The plaintiff is firstly to provide security for the defendant's costs by paying into court the sum of $50,000. Until that security is provided, there will be a stay of the proceedings. The security is to be provided before 20 August 2025, on which date the matter is to be listed before the court for consequential orders, or, in the event that the security has not been provided, an order for the dismissal of the proceedings under r 42.21 (3) of the Uniform Civil Procedure Rules 2005 (UCPR).

2. All orders currently in place for the case management of the proceedings are presently stayed until the motion seeking security for costs is determined.

Second tranche of security

3. Within 42 days of the listing of the matter for final hearing, the plaintiff is to provide a further tranche of security for the defendant's costs in the further amount of $50,000, by paying such a sum into court.

4. If the security is not provided in accordance with order 3 above, then the matter is to be listed within 3 days for orders to be made for the dismissal of the proceedings under r 42.21 (3) of the UCPR and consequential orders as to costs.

5. The Plaintiff is to pay the Defendant's costs of the Motion dated 28 April 2025.

6. Such further orders as the court deems fit.”

12. As to Order 4 the State accepted that rather than the matter being dismissed without hearing if the security was not provided, it could be stayed so that if a dismissal was pursued and resisted, a motion could be filed and the parties heard.

13. While Mr Smyers opposed any orders for security being made, he accepted that if security was to be ordered, the proposed orders for security to be provided in two tranches were appropriate. But he advanced no submissions to resist the amount of the security sought, in the event that his case was not accepted.

14. For reasons which follow I have concluded that justice requires that the State’s case be accepted, although I have redrafted the orders so that the matter can proceed in an orderly fashion to trial, if the security is provided and if not, that orders dismissing the proceedings can be made and the parties heard about costs, if they are not agreed.

Issues

15. There was also no issue between the parties as to the applicable principles. They include:

16. Rule 42.21(1) of the Uniform Civil Procedure Rules 2005 (NSW) which empowers the Court to make an order for security on the application of a defendant when the plaintiff is ordinarily resident outside Australia;

17. In the case of a natural person such an order cannot be made merely on account of the person’s impecuniosity: r 42.21(1B);

18. In considering whether to make such an order the Court may have regard to the matters specified in r 42.21(1A), if it considers them to be relevant. They are:

“(a) the prospects of success or merits of the proceedings,

(b) the genuineness of the proceedings,

(c) the impecuniosity of the plaintiff,

(d) whether the plaintiff’s impecuniosity is attributable to the defendant’s conduct,

(e) whether the plaintiff is effectively in the position of a defendant,

(f) whether an order for security for costs would stifle the proceedings,

(g) whether the proceedings involves a matter of public importance,

(h) whether there has been an admission or payment in court,

(i) whether delay by the plaintiff in commencing the proceedings has prejudiced the defendant,

(j) the costs of the proceedings,

(k) whether the security sought is proportionate to the importance and complexity of the subject matter in dispute,

(l) the timing of the application for security for costs,

(m) whether an order for costs made against the plaintiff would be enforceable within Australia,

(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.”

4. Ordinarily, in the absence of countervailing considerations, the fact that the plaintiff is resident out of and has no assets in Australia must be given significant weight: P S Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321 at 323; [1991] HCA 36;

5. Once overseas residence is established it is up to the plaintiff to put forward countervailing considerations if a security order is not to follow: Mothership Music Pty Ltd v Flo Rida (aka Tramar Dillard) [2012] NSWCA 344 at [12];

6. The purpose of ordering costs against such a plaintiff being to ensure that the successful defendant “has a fund available within the jurisdiction against which it can enforce the judgment for costs without having to bear the risk as to the certainty of enforcement in a foreign country and as to the time and complexity of the action which might be necessary to effect enforcement”: Mothership at [12];

7. But impecuniosity of a natural person is not an absolute barrier to an order for security: Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43 at [91];

8. Where there is evidence that a defendant has assets overseas it is generally appropriate only to make an order for security to the extent of the additional costs of enforcement in that State: Connop v Varena Pty Ltd [1984] 1 NSWLR 71 at [74]-[75] referred to in Mothership at [15];

9. In the case of an impecunious plaintiff, candour requires that evidence disclosing those who stand to benefit from the litigation be put on: Live Board Holdings Ltd v Cody Live Pty Ltd [2017] NSWCA 302 at [90];

10. Delay in bringing an application is relevant, a plaintiff being entitled to know his or her position in relation to the security before he or she embarks to any real extent on its litigation and before he or she commits substantial sums towards litigating the claim pursued: Buckley v Bennell Design & Construction Pty Ltd (1974) 1 ACLR 301 referred to in Li v State of New South Wales [2013] NSWCA 165 at [38];

11. Inadequate explanation for delay is also relevant: Morris v Hanley & Ors [2001] NSWCA 374;

12. Unless an application is made promptly, the Court will be reluctant to order security for costs already incurred: Sagacious Procurement Pty Limited) V Symbion Health Limited [2007] NSWCA 205;

13. Evidence of claimed prejudice is also relevant, but that will not necessarily be established by legal costs having been incurred and will not alone provide a basis for an inference that such costs would not have been incurred had the plaintiff been on notice of the intended application for security: PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [13];

14. Proof that a plaintiff would not have proceeded if an application for security had earlier been brought, is a powerful consideration against the grant of security: PPK Willoughby at [16];

15. The stultification of proceedings is also a powerful factor to be taken into account in deciding whether an order for security is appropriate, but it is not an absolute barrier: Li at [46]-[47]; and

16. When stultification is claimed the precise financial circumstances of the plaintiff and those behind him or her need to be disclosed: Live Board Holdings at [90].

17. It was the application of these principles in this case which was in issue between the parties.

The parties’ cases

17. The State’s case was that it had regard to the applicable principles by pressing orders that reflected only some 37% of the estimated costs. It denied that there had been any real delay, given when it became aware that Mr Smyers now resided permanently overseas and contended that he had not met the obligations imposed on him by the applicable principles.

18. It relied on Mr Smyers not having disclosed his current residential address and the inconsistent accounts which have been given about his true financial position, contending that he had thus not given full and frank disclosure of his true position. It also contended that account would be taken of the outlandish and unsupported damages he pursued by his amended pleadings, in circumstances where he had been arrested as the result of a Court warrant and his prosecution, which had been supported by the statement made by the complainant before he was charged, had been discontinued on the discretionary ground of her wishes.

19. The State contended that it was accordingly relevant that its defence was strong, while Mr Smyers’ claims were very ambitious and very weak. Reliance being placed on A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10 where it was explained at [56]:

“Even if a prosecutor is shown to have initiated or maintained a prosecution maliciously (for example, because of animus towards the person accused) and the prosecution fails, an action for malicious prosecution should not lie where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge.”

20. Mr Smyers relied on the State’s delay in bringing its motion to resist the orders which it sought, contending that his current residence outside Australia was not decisive and it being settled that applications for such orders should be made promptly, before significant costs are incurred.

21. He also relied on the prejudice he would suffer if the order was made, his inability to meet the proposed orders, which had been materially attributable to conduct for which the State was responsible. He contended that it would be accepted that his claims were pursued bona fide, with the result that the Court should proceed without a detailed examination of the proceedings, or an assessment of the strength of his case, relying on Carrano Investment Holding Pty Ltd v Siennamia Investments Pty Ltd [2022] NSWCA 262 at [18], where reference is made to Jazabas Pty Ltd v Haddad [2007] NSWCA 291 at [84]. There it was concluded that “the “strength” of the claimant’s case was a neutral factor in the exercise of the Court’s discretion.

22. Mr Smyers also contended that despite the evidence concerning how a judgment had to be enforced in Florida, there would be no difficulty in the State doing so.

Security must be ordered

23. I have concluded that Mr Smyers’ residence in the US provides a good reason for the making of an order for security, as the Rules contemplate, even though his bona fides in pursuing his claims have not been questioned. That is supported by the conclusions which I have reached about the claimed delay, Mr Smyers’ claimed impecuniosity, stultification and his failure to be candid, as the applicable principles require him to be.

24. I am also satisfied that the problems of enforcing a judgment in Florida were well established. The unchallenged advice the State relied on drawing attention to the relevant provisions of the Florida Enforcement of Foreign Judgments Act Fla. Stat. §55.604, which provides that a foreign judgment may not be recognised if the foreign jurisdiction in which judgment was rendered would not give recognition to a similar judgment rendered in Florida. On the evidence NSW is such a jurisdiction.

25. That was considered in Mothership, where Meagher J concluded that this supported the making of the security order there ordered: at [15]-[16]. As does the delay and cost involved in such enforcement, even if unopposed, which the evidence establishes would then be of some 6 to 12 months at a cost of USD$50,000 - USD$100,000. But Mr Smyers has not indicated that he would not oppose such enforcement, with the result that likely delay would be longer and the costs higher.

26. The overriding purpose specified in s 56 of the Civil Procedure Act 2005 (NSW), the just, quick and cheap resolution of the real issues in the proceedings, certainly does not support exposing these parties to such significant additional costs.

27. Nor does an assessment of the case Mr Smyers is pursuing support the refusal of the order. It will be for him to prove, on the evidence led at the hearing, the malicious prosecution which lies at the heart of the very considerable damages he is pursuing. He has not yet served all of his evidence, so there is no basis on which conclusions about the strength of his case can be reached, but that explains why the matter has been listed for 10 days.

28. The challenge which he faces is well explained by what was observed in A v State of New South Wales*,* earlier quoted. That the State does have prospects of resisting Mr Smyers’ claims must thus be accepted.

29. Rule 42.21(1A)(a) expressly makes Mr Smyers’ prospects of success a matter to be considered on this application, if found to be relevant. I consider that it is. It appears that the charge laid against Mr Smyers was not pursued because of a prosecutorial decision, after the complainant decided that she did not wish to further pursue the complaint which she had made before Mr Smyers was charged. That casts considerable light on the challenge which Mr Smyers faces in successfully establishing an evidentiary basis for his claims.

30. I am also not persuaded that the delay in bringing the motion seeking an order for security was such that it ought to be refused as a matter of justice. That the State only pursues partial security for its likely future costs, supports that conclusion.

31. Contrary to the Rules, it was only after the motion was filed that Mr Smyers served his evidentiary statement and even now, he has not served all of his evidence. The costs which the parties’ have incurred since the proceedings were commenced reflecting his pursuit of subpoenas before he amended his pleadings and the State’s resistance to production of privileged documents.

32. It is also relevant that the affidavits which Mr Smyers swore verifying his pleadings both disclosed an address in Florida. But both his May 2025 evidentiary statement and his June 2025 affidavit failed to disclose any address. Nor was one disclosed at the hearing and no explanation for that was able to be given.

33. Mr Smyers placed reliance on police having known in 2017, at the time of his arrest that he had been living at the Florida address before he came to Australia. But that did not establish his current whereabouts or that at the time the April 2025 motion was filed, that Mr Smyers was still ordinarily resident in Florida.

34. It follows that it cannot be assumed that he remains in Florida, or that any judgment in favour of the State could necessarily be enforced against him there.

35. The filing of the State’s motion followed an exchange of correspondence in March and April about its concerns that if it was successful, Mr Smyers had no assets in Australia available to meet a costs order in its favour. Attention was drawn to the Court’s practice of requiring the plaintiff to show that there was no basis for such a concern. Information about his assets or how he might provide security was thus sought, with the motion foreshadowed if the information was not provided.

36. Mr Smyers’ solicitor responded with advice that the State could seek to register and enforce a judgment for costs in the United States, noting “that there is no reasonable indication that our client will not make payment of such a debt in the event that a costs order” was made in favour of the State. The result was that the motion was filed.

37. It was by his April 2025 evidentiary statement that Mr Smyers disclosed that he was a dual citizen of Australia and the USA and that he now ordinarily resides in the United States, where he is employed as a reinsurance broker. But he still did not disclose his residential address, assets or income.

38. In his June affidavit Mr Smyers also failed to disclose his assets or address. He did disclose that he had come to Australia in January 2017 intending to pursue employment here, having been employed full time from 2013 to 2016 as a mutual fund wholesaler in New York, earning approximately USD$90,000, while also undertaking his master’s degree. He then anticipating that would result in him earning additional salary of between USD$20,000 - USD$40,000.

39. In March 2017 he obtained an employment opportunity at AUD$80,000 per annum which was withdrawn because of the charges which had been laid, in which he also expected to earn lucrative commissions. He was then also unable to pursue another opportunity which he also considered would be lucrative.

40. In May or June 2017 Mr Smyers did obtain employment, earning about AUD$80,000 per year, which he claimed he was later forced to resign from, after the charges were disclosed to his employer.

41. Between 2017 and 2019 Mr Smyers successfully pursued a Master of International Relations at the University of Sydney, a qualification he considered to be inferior to the 2016 MBA he had obtained from New York University. He also pursued a Chartered Alternative Investment Adviser Certification.

42. Mr Smyers also had casual work from June 2018 to July 2019 in retail, earning a total of only AUD$20,000. In October 2019 he obtained other employment at AUD$80,000 per annum and in 2020 and 2021 also earned bonuses of AUD$12,000 and AUD$24,000.

43. It was in 2022 that Mr Smyers returned to the United States.

44. Mr Smyers claimed that he had incurred significant legal costs. But he did not disclose what they were or how they had been paid. He also claimed that he was “not in a financial position to comply with any order requiring me to pay a sum of money as security for the Defendant’s legal costs”. But he did not disclose his current financial circumstances, other than as to his salary, to establish this.

45. It must be accepted that the evidence on which Mr Smyers relied did not satisfy his obligation to disclose his precise financial circumstances and that income of USD$110,000 per annum does not provide a proper basis for the conclusion that he is impecunious. The evidence also does not establish that he could not comply with any order for security, or that such an order would stultify the proceedings.

46. As to the claim that it would be accepted that the State had materially contributed to Mr Smyers’ strained financial circumstances, he carries the onus of establishing his financial position before and after the charges on which he relies, by leading “straightforward and unambiguous evidence of a fairly compelling nature”.

47. Mr Smyers has not led such evidence, his unsupported evidence of his past and current earnings not being sufficient to establish what he claims.

Costs

48. The usual costs order under the Rules is that costs follow the event: r 42. In this case that is an order that Mr Smyers bear the State’s costs of the motion, as agreed or assessed.

49. Unless the parties approach with short written submissions within 14 days of the date of this judgment, that will be the Court’s order.

Orders

50. For these reasons I order that:

51. The plaintiff is to provide security for the defendant’s costs, first by paying into court the sum of $50,000, on or before 20 August 2025.

52. The plaintiff is to provide a second tranche of security for the defendant's costs, in the further amount of $50,000, by paying that sum into court within 42 days of the listing of the matter for final hearing.

53. All current case management orders are revoked and the proceedings are stayed until the first $50,000 security is paid into court.

54. The matter is listed before the Registrar at 9.30 am on 21 August 2025 for further directions and, in the event that the $50,000 security has not been paid into court, for consequential orders, including the dismissal of the proceedings under r 42.21(3) of the Uniform Civil Procedure Rules 2005.

55. If the further $50,000 security is not paid into court in accordance with Order 2, then the proceedings are again stayed.

56. In that event the defendant is to apply to have the matter brought before the Registrar for further consequential orders, including the dismissal of the proceedings under r 42.21(3) of the Uniform Civil Procedure Rules 2005.

57. The plaintiff is to pay the defendant's costs of the Motion of 28 April 2025, as agreed or assessed.

58. The listing before the Registrar on 13 August 2025 is vacated and the matter is listed before the Registrar on 21 August 2025 for further directions and/or orders.

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