WREFORD -v- CASTLEYHEARD PTY LTD [No 2] [2023] WASCA 11 (25 January 2023)

1. The master observed that he was dealing with an application by all defendants to strike out the statement of claim by Ms Wreford, with leave to replead refused. The amended statement of claim which led to the applications was filed on 14 December 2021 and ran to 100 pages. Prior to the hearing, Ms Wreford had lodged a document on 14 February 2022 described as 'affidavit of annexure A of the affidavit of the plaintiff', which appeared to be a further re‑amended statement of claim. The master said that this was 'certainly the way it was treated by counsel for the defendants'. He described this document in the primary decision as the 'FRSOC'.
2. The master made findings along the following lines.
3. Prior to judgment delivery on 17 December 2018, Braddock DCJ provided advance reasons. Accordingly, the parties knew prior to entry of the final orders that (1) the trial judge had determined Ms Wreford's own negligence at 30%, and (2) the trial judge had made mathematical errors in assessing quantum. At the hearing on 17 December 2018, the mathematical errors were pointed out to the trial judge and the parties were invited to confer. The trial judge indicated that her corrected reasons would be delivered on 19 December 2018.[4]
4. The parties conferred and agreed:[5]

(a) [Ms Wreford's] damages had been assessed at $808,644, inclusive of special damages prepaid by [the Insurance Commission];
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> (b) from that, 30% was to be deducted to account for contributory negligence which produced a sub-total of $566,050.80; and
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> (c) from this figure then had to be deducted advance payments made by [the Insurance Commission] to [Ms Wreford] following the accident (being money [Ms Wreford] had already been paid or money that had been paid to service providers on her behalf) which produced a sum of $458,178.80 as [the driver's] outstanding liability to [Ms Wreford].

5. Prior to trial, the driver, Mr Lyle, had made an offer under O 24A of the Rules for $500,000, plus costs. The terms of the offer were that Ms Wreford would receive $500,000 in hand, and keep the advance payments made by the Insurance Commission.[6]
6. At the hearing on 19 December 2018, Ms Wreford's trial counsel unsuccessfully sought to have judgment entered for the assessed damages less the 30% contributory negligence without also taking off the payments in advance by the Insurance Commission. Ms Wreford's trial counsel also unsuccessfully sought to persuade Braddock DCJ that Ms Wreford should not have an adverse costs order made against her.[7]
7. Master Sanderson referred to Ms Wreford's claims against each respondent in turn:[8]
   1. In relation to the defendant's trial solicitors:

(a) There was nothing in the FRSOC to establish that they owed a duty of care to Ms Wreford.
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> (b) Mr Lyle, through the Insurance Commission and, no doubt, with the advice of the defendant's trial solicitors, made a 'very generous' O 24A offer.

(a) He was entitled to advocate's immunity.
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> (b) In any case, there was no substance in Ms Wreford's submissions that her trial counsel had omitted to put relevant evidence to the trial judge, or that he was unprepared for trial as Ms Wreford appeared to allege. The judgment of Braddock DCJ made it plain that Ms Wreford's case, and all aspects of it, were put before the trial judge, and there was nothing in the FRSOC to suggest otherwise.

(a) There were three substantive allegations made against them: (1) they allegedly failed to tender and disclose certain information or evidence at trial or to counsel; (2) they failed to provide advice on the O 24A offer or to correct false statements made by the defendant's trial solicitors with respect to the O 24A offer; and (3) Ms Wreford's trial solicitors had not acted for her in the appeal.
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> (b) There were no material facts in the statement of claim and nothing in the FRSOC which indicated that Ms Wreford's trial solicitors had failed in any respect in relation to Ms Wreford's claim at trial.
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> (c) The issue in relation to the O 24A offer was considered by the Court of Appeal,[9] where the court noted that there did not appear to be any misunderstanding on Ms Wreford's part of the offer or its practical effect. That was the end of the matter and the issue could not be revisited.
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> (d) There was no obligation on Ms Wreford's trial solicitors to act for her in the appeal.

8. The master made two further findings. First, that the proceedings were an abuse of process in that, in substance, they sought to relitigate issues in the District Court action. Secondly, the master addressed Ms Wreford's submission that there was an error in the trial judge's final calculations in the District Court action. The master said he could not identify such a calculation error and noted that the parties had had a chance to confer and agree on the calculations following provision of reasons in advance.[10]
9. The master concluded '[Ms Wreford's] action is entirely without merit. There should be summary judgment for each of the defendants against [Ms Wreford]'.[11]

1. Ms Wreford filed an appellant's case on 14 October 2022 including grounds of appeal and submissions.
2. There are four grounds of appeal.
3. Ground 1 alleges the master erred in law by conducting the primary proceedings in a manner that was procedurally unfair to Ms Wreford, having regard to her status as a self-represented litigant.
4. Ground 2 alleges the master erred in law by determining the primary proceedings in circumstances where the conduct of those proceedings gave rise to a reasonable apprehension of bias on the part of the master against Ms Wreford.
5. Ground 3 alleges the master erred in law in exercising his discretion to grant summary judgment, by disregarding relevant considerations and taking into account irrelevant considerations.
6. Ground 4 alleges the master erred in law by exercising his discretion to grant summary judgment 'when it was not reasonably open to do so'.
7. Ms Wreford filed extensive written submissions in support of the grounds of appeal.

1. The defendant's trial solicitors filed an application on 27 October 2022 for orders, relevantly, that:
   1. The appeal as against [the defendant's trial solicitors] be dismissed pursuant to r 43(2)(g)(i)[12] or r 43(2)(kb)(i)[13] of the [Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules)].
   2. [Ms Wreford] pay [the defendant's trial solicitors'] costs of this application and the appeal including reserved costs to be taxed if not agreed.

1. Within 21 days [Ms Wreford] provide security for [the defendant's trial solicitors'] costs of this appeal by payment into the Court of $12,500.
2. Pending payment of the security pursuant to paragraph 3, the appeal be stayed.
3. On 8 November 2022, Ms Wreford's trial counsel filed an application effectively in the same terms as the application filed by the defendant's trial solicitors.
4. On 7 November 2022, Ms Wreford's trial solicitors filed an application seeking orders effectively in the same terms as the applications filed by the defendant's trial solicitors and Ms Wreford's trial counsel, although they also included an order, in the alternative, that:
   1. Grounds of appeal 1 ‑ 4 (inclusive) be struck out pursuant to r 43(2)(f)[14] of the [Rules].

1. The first and third respondents filed affidavits of hundreds of pages in length in relation to procedural issues in the primary proceedings. The second respondent filed a shorter affidavit. The second respondent sought to rely on the affidavits filed on behalf of the first respondent.
2. In support of each of their respective applications, each of the respondents also filed evidence including a draft bill of costs in an amount exceeding the $12,500 sought for security in each application.
3. There was also evidence in each application that Ms Wreford is the registered proprietor of a strata property in South Perth (South Perth property), which was subject to a registered mortgage in favour of the Commonwealth Bank of Australia, and a caveat for an equitable mortgage in favour of a corporate entity known as Skyblue Nominees Pty Ltd (Skyblue Nominees). The directors and shareholders of Skyblue Nominees are Benjamin and Joshua Wreford, both shown on a company search to be residents of the South Perth property (although, in oral submissions, Ms Wreford stated that one of the directors did not live with her).[15] The searches in the affidavit materials revealed Ms Wreford was not the registered proprietor of any other property.

Ms Wreford's affidavit and submissions in opposition to the respondents' applications

1. Ms Wreford filed an affidavit on 21 November 2022 in opposition to the respondents' applications. In the affidavit Ms Wreford confirmed that the South Perth property was her residential address. In her affidavit, Ms Wreford deposed that she raised the appeal in good faith, and that she considered that she has an 'extremely high chance of winning'.[16] Ms Wreford also deposed to various procedural matters.
2. In relation to the respondents' applications for security for costs, Ms Wreford said, in her affidavit, that she would be 'highly prejudiced' if the application proceeded 'without proper discretion and just cause',[17] and that she believed that the purpose of the respondents' applications was to stultify the appeal.[18] She also deposed that:
   1. she receives Jobseeker payments, and is a 'full-time self‑represented litigant';[19]
   2. she is a mother of three sons, two of whom still live at the South Perth property;[20]
   3. she has an impeccable financial record, pays debts in full by their due dates and has never been declared bankrupt;[21]
   4. although she had a gambling problem, following her accident, which saw her banned from Crown Casinos in Perth and Melbourne, she no longer gambles and has no desire to gamble;[22] and
   5. she owns the South Perth property and makes fortnightly mortgage repayments.[23]
3. In relation to the last point, Ms Wreford annexed documents (annexure JWSB1) said to be a true copy of a 'Mortgage repay receipt'. The annexure contained documents showing the debit of two amounts, each described as 'Transfer to CBA Account CommBank app Loan Skyblue Trust ... Loan'. Each had its own date and receipt number.[24]
4. Ms Wreford also deposed that there was no 'genuine reason' for the respondents to believe they would be disadvantaged, or that she would be unable to pay adverse costs orders.[25]
5. In written submissions filed 5 December 2022, Ms Wreford submitted that there were no grounds to justify an order for security for costs. She referred to a New South Wales decision on security for costs in which the relevant rule required special circumstances to be shown.[26] As will be seen, that is not the test that applies on such an application in respect of an appeal in this court.
6. In her written submissions, Ms Wreford effectively relied on the matters referred to in her affidavit. She confirmed that the South Perth property is encumbered in favour of the Commonwealth Bank and Skyblue Nominees. She asserted that the South Perth property was worth in excess of $1 million. Ms Wreford also said that she holds a Commonwealth Bank Platinum Visa card. Ms Wreford referred to having a $20,000 credit limit and having paid the monthly balance owing for the past four months by the various due dates. She also submitted that there was a major power imbalance between her and the respondent.
7. In oral submissions, Ms Wreford submitted that she was not impecunious.[27] She also submitted that she paid her mortgage 'from [her] personal bank account repayments into the Skyblue Trust account',[28] and that, with reference to the annexure referred to in [32] above, the evidence shows 'transfers from Commonwealth Bank ... into the Skyb[29]e Trust'.29
8. Ms Wreford also submitted that the respondents' bills of costs had been computed on a full indemnity basis.[30]

Disposition - respondents' applications to strike out and dismiss appeal

1. As noted earlier, in the case of the first and third respondents, each application is supported by hundreds of pages of affidavit materials. The second respondent relies on part of those materials. Each of the respondents has also filed extensive submissions in response to the appellant's case. Each contends, in effect, that none of the grounds of appeal has any reasonable prospects of success, and that, moreover, the master's ultimate conclusion that the pleadings disclosed no arguable cause of action was inevitably correct.
2. It is unnecessary to set out in detail all the submissions filed by the respondents. It suffices to say that, at least in relation to ground 1 concerning the procedural course of the primary proceedings, and in the context of the necessarily limited opportunity to hear full argument, we were not persuaded that the arguments advanced by the respondents enabled us to conclude that the interests of justice required that the appeal be dismissed summarily. It could not be said that this was the clearest of cases, one where there was a high degree of certainty about the ultimate outcome of the appeal if it went to hearing, such that summary dismissal of the appeal ought properly be granted.
3. Having said that, we accept that, again on a necessarily limited review of all the materials, there appeared to be prima facie significant obstacles in overcoming the master's conclusion that no reasonable causes of action had been disclosed.

1. The principles in relation to security for costs were outlined in George 218 Pty Ltd v Bank of Queensland Limited.[31] In summary:
   1. The power to order security is exercised to serve the interests of justice.
   2. The discretion to order security is unfettered but must be exercised judicially. 'Special circumstances' do not have to be shown before an order for security for costs is made against an appellant.
   3. An appellant's inability to satisfy a costs order should the appeal fail is generally a significant factor in favour of an order for security for costs. However, if the respondent has caused the appellant's impecuniosity, that may be a relevant countervailing factor.
   4. Impecuniosity is not in itself generally the sole ground for the making of an order for security. Even where the appellant is impecunious, in all the circumstances, the interests of justice may properly be served by not making such an order.
   5. Other factors generally include the appellant's prospects of success, whether the appellant would be shut out of the appeal if security for costs were ordered, and whether there has been any delay in the respondent filing the application for security for costs.
   6. Ultimately, each case will turn on its own circumstances, and it is not possible to set out an exhaustive list of the relevant considerations.
   7. Where security is ordered against an impecunious appellant, the amount ordered should not be greater than is absolutely necessary.
2. We were satisfied that it was in the interests of justice to order security for costs in this case, essentially for the following reasons. First, the evidence indicates that Ms Wreford's only asset, at least of any substance, is her interest in the South Perth property. That is encumbered in favour of the Commonwealth Bank and Skyblue Nominees - an entity which appears to be controlled by her sons. There is no evidence as to the value of the South Perth property (despite Ms Wreford's assertion in written submissions). The prospect that the asset will be available and in a reasonably timely way to meet any costs orders for the respondents in the event of an unsuccessful appeal is attended by real doubt, to be weighed in the context of the circumstances as a whole.
3. Secondly, even though Ms Wreford is not employed, there is evidence that she has access to funding from the Skyblue Trust, although the details of that trust and the funding arrangements were not disclosed. Ms Wreford pointed to her credit card limit of $20,000 and submitted that she is not impecunious. In all the circumstances we were not satisfied that an order for security for costs would stifle the appeal.
4. Thirdly, whilst we would not strike out the appeal at this stage, as indicated earlier, on a necessarily preliminary basis, objectively, the appeal prospects do not appear to be good.
5. In terms of the amount for security, we were satisfied that the amount of $12,500 is reasonable in the circumstances, having regard to the draft bills of costs.

1. For these reasons we made orders that:
   1. On or before 4.00 pm on 24 February 2023, the appellant provide security for the costs of each of the first respondent, second respondent and third respondent in the sum of $12,500 each being a total of $37,500 by payment of such moneys into court.
   2. The appeal be stayed pending payment of the security pursuant to order 1.
   3. The time for each respondent to file its respondent's answer be extended to 28 days after the appellant complies with order 1.
   4. There be liberty to apply, on five business days' notice, in the event of non-compliance with order 1.
   5. The first respondent's application in an appeal dated 7 November 2022, the second respondent's application in an appeal dated 8 November 2022 and the third respondent's application in an appeal dated 27 October 2022 are otherwise dismissed.

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

Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

[1] Wreford v Lyle [2018] WADC 173.

[2] Wreford v Lyle [No 3] [2021] WASCA 20.

[3] Wreford v Castleyheard Pty Ltd [2022] WASC 164.

[12] Rule 43(2)(g)(i) of the Rules provides:

(2) A single judge has jurisdiction to do any of the following -

(i) none of the grounds of appeal has a reasonable prospect of succeeding[.]

[13] Rule 43(2)(kb)(i) of the Rules provides:

(2) A single judge has jurisdiction to do any of the following -

(kb) to make any order that it is appropriate to make -

(i) for the due and effective administration of justice[.]

[14] Rule 43(2)(f) of the Rules provides:

(2) A single judge has jurisdiction to do any of the following -

(f) to strike out any ground of appeal that does not have a reasonable prospect of succeeding or does not comply with these rules or any order made under them[.]

[16] Affidavit of J Wreford filed 21 November 2022 in opposition to the respondents' applications, par 6.

[22] Ms Wreford's affidavit, pars 27 - 28.

[23] Ms Wreford's affidavit, par 18e ‑ f.

[26] Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 [18] - [19].

[30] Ms Wreford's submissions filed 5 December 2022, par 9u.

[31] George 218 Pty Ltd v Bank of Queensland Limited [2016] WASCA 56 [41] - [48]. See also Oze-Igiehon v Rasier Operations BV [2017] WASCA 107 [13].