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H & R Management Consulting Pty Ltd v Bickford

 

[2010] QSC 144

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

H & R Management Consulting Pty Ltd v Bickford & another [2010] QSC 144

PARTIES:

H & R MANAGEMENT CONSULTING PTY LTD
ACN 085 377 000
(plaintiff)
v
JOHN LINDSAY BICKFORD
(first defendant)
and
RUSSELL AND COMPANY
(second defendant)
and
KENNETH IAN FOOTE
(third defendant)
and
TERRY GRANT VAN DER VELDE
(fourth defendant)
and
PAUL DESMOND SWEENEY
(fifth defendant)
and
KESKAY PTY LTD (IN LIQUIDATION)
ACN 010 849 788
(sixth defendant)

FILE NO/S:

BS 6644 of 2003

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

22 April 2010

DELIVERED AT:

Brisbane 

HEARING DATE:

22 April 2010

JUDGE:

Daubney J

ORDER:

  1. There will be orders in terms of the amended draft that I now initial and place with the papers.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – JUDGMENTS AND ORDERS – where security for costs orders for the first and second defendant’s costs were made by this Court and, in one instance, by consent – where the security has not been paid in by the plaintiff – where the plaintiff does not have the funds to meet either of the orders for security for costs – where the plaintiff was unable to point to any special circumstance to support the application – where there is an application by the plaintiff that the security for costs orders be set aside or varied – where there are applications by each of the first and second defendants for the proceedings to be struck out by reason of the plaintiff’s failure to meet the respective orders for provision of further security for costs – whether the security for costs orders should be varied or set aside – whether the proceedings against the first and second defendants should be struck out

Uniform Civil Procedure Rules (1999) Qld, r 5, r 674, r 675

COUNSEL:

SA Briley appeared on behalf of the plaintiff, with leave of the Court

P Roney for the first, fourth and fifth defendants

D Clothier for the second defendants

SOLICITORS:

The plaintiff was self represented

Rodgers, Barnes and Green Lawyers for the first, fourth and fifth defendants

Coyne and Associates for the second defendants

 

HIS HONOUR:  In May of 2006, this Court made an order by consent by which the plaintiff was ordered to put up $65,000 by way of security for the second defendant's costs in this proceeding. That security was provided by the requisite moneys being paid into Court.

 

In December 2009, the second defendant made application for further security to be provided. After a contested hearing before Margaret Wilson J, her Honour ordered on 14 December 2009 that the plaintiff provide further security for the second defendant's costs of the proceedings in the amount of $100,000 with that security to be provided by 21 December 2009. There was no appeal from her Honour's order.

 

The security which was ordered to be provided by 21 December 2009 has not been paid in by the plaintiff.

 

Subsequent upon that application by the second defendant, the first defendant on 26 February 2010 made application for the plaintiff to provide further security for costs in respect of the first defendant's costs of the proceeding. At that time, the plaintiff was represented by the firm of solicitors which had represented throughout the proceedings and was also represented by Counsel. The first defendant's application was resolved by agreement, and on 9 March 2010, Philippides J ordered by consent of the parties that the plaintiff provide further security for the first defendant's costs in an amount of $75,000. That further security was to be paid by 15 March 2010.

 

The plaintiff has not paid that security and shortly after Philippides J made her order on 9 March 2010, the plaintiff's solicitors withdrew as the solicitors on the record for the plaintiff.

 

There are then a number of applications before me today. One is an application by the plaintiff under rule 675 seeking that each of the orders of Margaret Wilson J and Philippides J be set aside or varied. The other applications are applications by each of the first defendant and second defendant for the proceeding against those two defendants to be struck out by reason of the plaintiff's failure to meet the respective orders for provision of further security for costs.

 

The plaintiff was represented at the hearing today by its director, Ms Briley. The plaintiff is now not legally represented, and I gave Ms Briley leave, limited solely to today's appearance, to appear on behalf of the corporate plaintiff.

 

Ms Briley frankly conceded on behalf of the plaintiff that the plaintiff simply did not have the funds to meet either of these further orders for security for costs. It would seem that there was a prospect, or perhaps a wish, that a creditor who stands to gain from the outcome of this litigation if the plaintiff is successful would support the plaintiff financially by coming to aid of the plaintiff in enabling these orders for further security for costs to be met. Regrettably for the plaintiff, that assistance has not been forthcoming.

 

In the course of argument, I sought to elicit from Ms Briley the statement of the special circumstances upon which the plaintiff would rely for the purposes of obtaining an order under rule 675 that each of these orders for security for costs be set aside or varied. Ms Briley was, with respect, unable to point me to any change of circumstance between the time of the making of each of those orders and now such as would constitute the necessary special circumstances to enliven an exercise of the jurisdiction under rule 675.

 

As I discussed with her in the course of argument, that task was made even more difficult in respect of the order made by Justice Philippides because that order, made only some six weeks or so ago, was made with the consent of the plaintiff. In effect, nothing has changed so far as the circumstance of the plaintiff is concerned since the time it consented to that order six weeks ago. Indeed, as Ms Briley told me, it didn't have the money then to meet the order, and it doesn't have the money now to meet the order.

 

What Ms Briley did do was focus, both in her written submission and in her oral submissions to me, on her claims made on behalf of the plaintiff of injustice. She contends that the claim has merit. She contends that the matters alleged in these proceedings raise very serious issues, and pointed out on several occasions that these are matters which should be heard and determined for the benefit of the public at large.

 

I do not doubt for one minute that Ms Briley genuinely adheres to those views; but that is not the test which I am required to apply for the purposes of determining whether or not the orders for security for costs made by Justice Wilson and Justice Philippides ought be set aside or varied.

 

There are, of course, two sides to the coin with which we are presently concerned. The fundamental reason why security for costs orders are made is because of an apprehension that a plaintiff, if unsuccessful in an action, will not have the wherewithal resources to meet the successful defendant's costs in the proceedings; indeed, so much is clear from the terms of section 1335 of the Corporations Act.

 

Just is there is a public interest in aggrieved plaintiffs having their cases heard and determined by the Courts, so too there is a public interest in ensuring that the Court process is not misused in anyway by impecunious plaintiffs bringing proceedings against defendants without there being any concern on the part of impecunious plaintiffs as to the financial consequences that flow from their conduct.

 

It is unnecessary for me to delve further into the philosophy underlying orders for security for costs because, as I have said, the orders with which I am presently concerned were, in the case of Justice Philippides order, made by consent by the parties and in the case of Justice Wilson's order, made after her Honour heard a contested hearing in relation to that application.

 

It is clearly not appropriate for me on today's application to embark on some sort of quasi-appeal against the circumstances under which either of those orders were made or to revisit or permit re-argument of matters which were, or should have been, ventilated in those hearings.

 

As I have said, at the end of the day, the plaintiff has failed to discharge the requirement under rule 675 of demonstrating that there are special circumstances in this case to warrant a setting aside or variation or those orders, and the plaintiff's application for relief under rule 675 will be dismissed.

 

There remains then the applications by each of the first defendant and the second defendant for the proceeding against each of those defendants to be dismissed. I have already noted that the plaintiff has failed to meet either of the orders for the provision of further security for costs. It is also, with respect, clear from the admissions frankly made today by Ms Briley that the plaintiff simply does not have the capacity to meet those orders.

 

The best that Ms Briley was able to do was to offer to try and come up with a time payment plan, with her to attempt over the next couple of years to save enough money from her own work to be able to meet these existing orders for the provision of security for costs. For obvious reasons, it is quite inappropriate for the Court even to contemplate what would in effect be a stay of these proceedings for a period of two years (that being the period of time suggested by Ms Briley) to enable her to save enough money to put up the money to cover these orders for security for costs.  That sort of regime would completely cut across the philosophy underlying the pursuit of litigation in this Court as manifested in rule 5 of the Uniform Civil Procedure Rules.

 

There is no suggestion that were I, for example, to give a short extension of time within which the plaintiff could meet the orders for security, that that would serve any useful purpose.

 

In all the circumstances then, and having regard to what appears to be the uncontested inability of the plaintiff to meet these orders for security for costs either now or at any time within the reasonably short-term future, it seems to me that this is an appropriate case in which an order should be made under rule 674, sub rule (c) for the dismissal of the claims against each of first defendant and the second defendant.

 

...

 

HIS HONOUR:  For the reasons I have just given, there will be an order in terms of the amended draft that I now initial and place with the papers.

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Editorial Notes

  • Published Case Name:

    H & R Management Consulting Pty Ltd v Bickford

  • Shortened Case Name:

    H & R Management Consulting Pty Ltd v Bickford

  • MNC:

    [2010] QSC 144

  • Court:

    QSC

  • Judge(s):

    Daubney J

  • Date:

    22 Apr 2010

Litigation History

No Litigation History

Appeal Status

No Status