Bruder Expedition Pty Ltd v Leigh [2020] QCA 238

[2020] QCA 238 COURT OF APPEAL FRASER JA Appeal No 8773 of 2020 DC No 2380 of 2019 BRUDER EXPEDITION PTY LTD Respondent/Applicant ACN 603 551 579 v TRACY LEIGH Appellant/Respondent BRISBANE FRIDAY, 30 OCTOBER 2020 JUDGMENT FRASER JA: The respondent to an application for leave to appeal applies for security for costs. Rule 772 of the Uniform Civil Procedure Rules empowers the Court of Appeal, or the court that made the decision appealed from, to order an appellant to give security for the prosecution of the appeal. The respondent referred to decisions holding that r 772 is not engaged where, as in this case, leave to appeal is necessary and has not been granted, but that in such cases security may be awarded under the more general provision in r 670(1) of the UCPR: see Chibanda v Chief Executive, Queensland Health [2018] QCA 334 at [6] and the decisions there cited. Rule 670 empowers the Court to order the plaintiff to give security the Court considers appropriate for the defendant’s costs of a proceeding. That rule applies subject to the provisions -- 1 of 8 -- 2 of other rules, particularly rr 671 and 672. Rule 671 provides that the Court may order a plaintiff to give security only if the Court is satisfied of one of the eight matters listed, the only relevant matter being that the justice of the case requires the making of the order. Rule 672 sets out discretionary factors to which the Court may have regard. They include the prospects of success or merits of the proceeding, whether an order for security for costs would stifle that proceeding, whether the proceeding involves a matter of public importance, and the costs of the proceeding. It is uncontroversial in this application that r 672 does not comprehensively state the potentially relevant matters. The respondent and the applicant present opposing arguments about the prospects of success of the proposed appeal. Resolution of this issue requires reference to selected parts of the complex procedural history of the parties’ litigation. After a jury trial in the District Court judgment was given in favour of the respondent, the plaintiff in the District Court, against the applicant for $350,000. The applicant appealed against that judgment. The appeal was heard and judgment was reserved in May of this year. In the meantime the respondent had brought proceedings in the District Court to obtain information about the applicant’s assets and to enforce the judgment. That has led to the applicant bringing two further proceedings in this Court. The relevant proceeding is an application for leave to appeal filed on 13 August 2020. A notice of appeal had been filed on 12 August 2020. The notice of appeal challenges an order made by a judge in the District Court on 7 August 2020 dismissing the applicant’s application to set aside an order made by Registrar Lambert on 2 July 2020. Registrar Lambert ordered that by 4.00 pm on Friday 10 July 2020 the applicant – that is, the respondent in the District Court – provide by email to the solicitors of the respondent – that is, the applicant in the District Court – copies of specified bank account statements and numerous other documents apparently relating to financial affairs of the applicant. In the primary judge’s reasons for dismissing the applicant’s application to set aside that order the primary judge referred to a submission for the applicant that the District Court had no jurisdiction to compel a resident of another state to attend an enforcement hearing. -- 2 of 8 -- 3 The order made by Registrar Lambert, of course, did not compel the applicant to attend an enforcement hearing. It required her to send specified documents to the respondent. If the applicant was compelled to attend an enforcement hearing, that must have occurred by the service upon her of an enforcement hearing summons. Rule 808(6) of the UCPR empowers the registrar to set the date for an enforcement hearing and issue an enforcement hearing summons in the approved form requiring the person to whom the summons is directed to attend an enforcement hearing at the time and place stated in the summons to give information and answer questions and to produce the documents or things stated in the summons. Rule 808(7) provides that the enforcement hearing summons may require the enforcement debtor to complete and return a statement of financial position in the approved form at least four business days before the date of the enforcement hearing. Evidently the registrar issued such a summons on 2 December 2019, that being the initiating document referred to in Registrar Lambert’s order of 2 July 2020. At the hearing of the present application I was provided with a copy of an enforcement hearing summons apparently issued on 12 March 2020. I was informed that the reason for the issue of the new summons may have been that as a result of litigation connected with the original summons, or perhaps for some other cause, the hearing date specified in the original summons had passed. However that may be, it was not submitted for the applicant that either the original summons or the subsequent summons did not comply with the requirements of the UCPR. The primary judge referred to the relevant rules upon that topic and rejected the argument for the applicant that the District Court of Queensland lacked jurisdiction to compel a resident of another state to attend an enforcement hearing in Queensland. The argument before me about prospects of the proposed appeal from that decision focused upon the first ground in the applicant’s notice of appeal. That ground contends that the primary judge erred in finding, implicitly, that the District Court had jurisdiction to issue an enforcement hearing summons to the applicant in circumstances in which the applicant was not a resident of Queensland but resides in Western Australia, the respondent knew as much, the District Court -- 3 of 8 -- 4 of Queensland Act 1967 confers upon the District Court jurisdiction throughout Queensland, as a consequence that court’s jurisdiction to issue a summons of the relevant kind was limited to the State of Queensland, and the respondent had already taken steps to register the judgment in Western Australia to enforce it in accordance with s 105 of the Service and Execution of Process Act 1992 (Cth). As to the last point, the argument for the applicant did not make clear the relevance of the fact that the respondent had taken steps to register the judgment in Western Australia under that statutory provision. So far as I can detect, nothing in the Service and Execution of Process Act suggests that an interstate registration of a judgment precludes the judgment creditor from taking steps in the state in which the judgment was given to obtain information about the financial affairs of the judgment debtor and to enforce the judgment in that state. Otherwise, the first ground of appeal appears to confuse jurisdiction to issue an application with power to serve such an application out of the state. Of course, there would have been no difficulty with service if the applicant was served with the summons at a time when she happened to be in the state. If she happened to be out of the state once the summons was issued and in Western Australia, it would then have been necessary for the respondent to serve the summons upon her in accordance with applicable provisions in the Service and Execution of Process Act. Section 29 of that Act provides that a subpoena issued in a state by a court or an authority may be served in another state and service must be effected in the same way as service of a subpoena in the place of issue. That and other provisions in that Act regulate service of a subpoena under that Act. The term “subpoena”, as it is used in the relevant provisions in that Act, is defined in terms which comprehend an enforcement hearing summons in the form approved under the UCPR. Whether or not the relevant enforcement hearing summons was served in accordance with the requirements of that Act is not put in issue by the notice of appeal and, so far as appears from the reasons of the primary judge, it was not put in issue in the District Court. If the applicant seeks to raise the question whether a valid enforcement hearing summons was duly served upon -- 4 of 8 -- 5 the applicant either within Queensland or in another state in accordance with the Service and Execution of Process Act, that would require an amendment to the notice of appeal. If any such point sought to be put in issue now was not litigated in the District Court, and it appears upon the face of the primary judge’s reasons that it was not, that would itself appear to form a substantial ground for refusing leave to appeal to raise any such point. The notice of appeal does not in terms challenge the order of 2 July 2020 upon the ground that such an order was itself beyond the power of the registrar or upon the ground that such an order itself could not be validly served outside Queensland and in Western Australia. Again, so far as I can tell, such points were not litigated in the District Court. Again, that would appear to form a substantial ground for refusing leave to appeal them. To what I have already said about the first ground of appeal and possibly related grounds I would add that there appears to be little point in granting leave to appeal to agitate any of them. After an application for a stay of the order under appeal was refused, the evidence demonstrates that the applicant complied with that order by sending to the respondent or its solicitors the documents identified in the order. There may, perhaps, have been one exception to that, but if so, it does not appear to amount to very much in the scheme of things. Any appeal upon any of the grounds so far discussed would appear to be substantially moot, or at least to lack such significance as would justify granting leave to appeal. For these reasons, my preliminary assessment is that the applicant’s prospects of succeeding upon what appears to be the main ground of her proposed appeal are bleak. Because the other grounds of the proposed appeal were not agitated in argument before me I propose to say about them only that they appear to be no more persuasive and no more capable of justifying a grant of leave to appeal than the ground of appeal I have discussed. I turn to other discretionary considerations. An affidavit by the respondent’s solicitor contains substantial evidence, including of statements by the applicant, that she has no substantial assets and is unlikely to be able to meet a costs order if her appeal fails and she is ordered to pay the respondent’s costs. So much is confirmed by the applicant in her affidavit. She is a disability -- 5 of 8 -- 6 support pensioner and not able to be gainfully employed. She refers to having provided security for costs in the amount of $30,000 for each of her first two appeals and explains that she was able to raise the necessary funds in part by using some of her own savings and for the most substantial part by crowdfunding campaigns and calling upon her Facebook group, which she states comprises more than 56,000 members. She deposes to attempts she made, commencing in early October, to raise additional money by the same method to supply security for costs of the third proposed appeal and also to defray other costs she had incurred in relation to the respondent’s ongoing enforcement of the judgment. She deposes that she has only been able to raise a small amount of money and is unable to provide any security of the $50,000 sought by the respondent, and if her application for leave to appeal were stayed pending the provision of security, she would not be able to prosecute the appeal. The respondent relies upon the applicant’s success in raising enough money to satisfy the earlier orders for security, one of which concerns the applicant’s appeal against the judgment against her for $350,000. That evidence suggests that the applicant may yet be able to raise some money for security, but her affidavit evidence suggests that she probably will not be able to raise any sum of the order of $50,000 or even of the order of $30,000, which senior counsel for the respondent submitted might be regarded as sufficient. The applicant relies upon delay by the respondent in applying for security. On 21 September 2020 solicitors for the applicant sent an email to solicitors for the respondent seeking the respondent’s agreement to a communication to the registrar seeking an expedited timetable, with the appeal to be set down to be heard before the end of the year. On 24 September 2020 the solicitors for the applicant wrote again to the solicitors for the respondent noting that they had not yet indicated the availability of the respondent’s counsel if the appeal were heard on 26 or 27 November and indicating that they would ask for the appeal to be set down by close of business the same day. On 24 September 2020, the solicitors for the respondent replied that their client’s counsel was available on those dates. They foreshadowed applying for security for costs. They incorrectly conveyed that the application for security -- 6 of 8 -- 7 (rather than the application for leave to appeal and any appeal if leave were granted) would be listed on 26 or 27 November 2020. Upon that mistaken understanding, the respondent’s solicitors conveyed that the respondent did not agree to the appeal being heard on those dates. On the same date the solicitors for the applicant replied, stating their intention to inform the registry that the parties’ counsel were available to appear in the Court of Appeal on 26 or 27 November. The expedited timetable was issued and the hearing of the appeal was set down for 26 November. It remains listed for that date. The respondent’s solicitors foreshadowed an application for security for costs in a letter of 1 October 2020. That application was filed on 9 October 2020. The applicant complied with the requirement of the timetable to serve its outline of argument, which it did on 6 October 2020. Before the hearing of this application the respondent had filed its outline of argument in the appeal (on 19 October 2020) and the applicant had filed her outline of argument in reply (on 26 October 2020). Delay in applying for security is a relevant discretionary consideration: see, for example, Covecorp Constructions Pty Ltd v Indigo Projects Pty Ltd [2007] QSC 262 at [26] – [28] (Martin J). The respondent’s delay before 21 September 2020 is understandable, given that an application by the applicant to stay the respondent’s enforcement proceeding was refused on 13 August 2020. On its face, that rendered the proposed appeal moot. The applicant argues that the proposed appeal was not rendered wholly moot, at least because a relevant consideration in the order refusing a stay was that the respondent had agreed to keep any documents provided to it by the applicant about her financial affairs and not disclose them publicly. The respondent also referred to evidence of a statement made by the applicant after her application for a stay was dismissed to the effect that the proposed appeal had become pointless. In any event, the applicant does not appear to have progressed her application for leave to appeal until 21 September 2020. Furthermore, the agreement by the respondent to keep documents provided to it by the applicant and not disclose them publicly does not appear to -- 7 of 8 -- 8 have been put forward by the applicant as a reason for pursuing the appeal until very recently. It is really only delay after 21 September that might be significant in the present context. In comparison with many other appeals in this Court, the amount of money expended by the applicant in progressing her application for leave to appeal and the extent of the respondent’s delay in bringing its application for security do not seem very significant. It is necessary, of course, to have regard to the applicant’s apparently parlous financial position, as it appears in the evidence before me, and also to the circumstance that the respondent acquiesced in the expedited timetable and the setting of an early date for hearing of the application for leave to appeal. On the other hand, the weight of delay and of the applicant incurring expense in the period of delay is very substantially diminished by the circumstance that most of the work in progressing the application done by the applicant, if not all of it, appears to have been done in circumstances in which the respondent had foreshadowed the bringing of an application for security for costs. Also taking into account my preliminary assessment that the prospects of success in the appeal are bleak, I consider that security for costs should be ordered. I do not propose to order security in an amount nearly as substantial as that which is sought by the respondent. Balancing the competing considerations as best I can, justice is served, I think, by the following order. I order that by 4.00 pm on Friday 13 November 2020, the applicant for leave to appeal give security for the prosecution of the application and of the proposed appeal without delay and for payment of any costs the Court of Appeal may award to the respondent to the application for leave to appeal in the amount of $20,000 in a form acceptable to the registrar. I reserve the costs of the application for security to the Court hearing the appeal. -- 8 of 8 --