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Federal Court of Australia |
Last Updated: 5 February 2007
FEDERAL COURT OF AUSTRALIA
Lamb v Hog’s Breath Company Pty Ltd (No 1) [2007] FCA 49
PRACTICE AND PROCEDURE – security
– natural person applicant outside jurisdiction - no assets in
jurisdiction –
limited evidence as to financial position –
uncontested estimate as to respondents’ costs – security ordered to
point of trial – transfer of proceedings – proceedings commenced in
Perth Registry – respondents in Queensland
but remote from Brisbane
– applicant represented by Perth solicitors – respondents
represented by Queensland solicitors
– balance of convenience – no
benefit in transferring proceeding at interlocutory stage – motion to
transfer dismissed
JOHN
CHARLES LAMB v HOG'S BREATH COMPANY PTY LTD ACN 011 054 970, HOG’S BREATH
CAFE (AUSTRALIA) PTY LTD ACN 071 132 655, HB
INVESTMENTS PTY LIMITED ACN 060 678
328, HOG’S BREATH CLOTHING CO PTY LTD ACN 060 678 355 AND DONALD RICHARD
ALGIE
WAD300 OF 2006
FRENCH J
30
JANUARY 2007
PERTH
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AND:
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THE COURT ORDERS THAT:
On the First, Third, Fourth and
Fifth Respondents Motion for Security:
1. The applicant is to provide security for the first, third, fourth and fifth respondents’ costs of the proceedings up to trial but not including the first day of trial, in the amount of $60,000 to be provided by way of payment into Court or bank guarantee in a form acceptable to the Registrar.
2. The applicant is to provide a security on or before 26 February 2007.
3. If the security is not provided by 26 February 2007 the action will thereafter be stayed.
4. There is liberty to apply for further security in the event of the matter proceeding to trial or in the event of changed circumstances justifying such an order.
5. The costs of the motion in relation to the application for security are to be the first, third, fourth and fifth respondents in any event.
On the Motion for Transfer:
1. The motion for transfer is dismissed.
2. The parties are at liberty to apply as to the location of the trial and of any interlocutory process prior to trial.
Note: Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.
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BETWEEN:
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JOHN CHARLES LAMB
Applicant |
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AND:
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HOG'S BREATH COMPANY PTY LTD ACN 011 054 970
First Respondent HOG'S BREATH CAFE (AUSTRALIA) PTY LTD ACN 071 132 655 Second Respondent HB INVESTMENTS PTY LIMITED ACN 060 678 328 Third Respondent HOG'S BREATH CLOTHING CO PTY LTD ACN 060 678 355 Fourth Respondent DONALD RICHARD ALGIE Fifth Respondent |
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JUDGE:
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FRENCH J
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DATE:
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30 JANUARY 2007
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PLACE:
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PERTH
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REASONS FOR JUDGMENT ON MOTION FOR SECURITY
FOR
COSTS AND TRANSFER OF PROCEEDINGS
Security for costs
1 The general principles governing the provision of security for costs are well known and I need not recite them here. There is, as I have said on previous occasions, no precise formula in determining what is an appropriate level of security, nor the identification of the stages of the litigation in respect of which security should be provided, if it is to be provided on a staged basis at all.
2 In this case there is a need to have regard to the legitimate interests of both the applicant in seeking to pursue what he asserts are his rights, in this case a claimed copyright and remedies for infringement, and those of the respondents who are faced with a litigant residing out of the jurisdiction apparently with no assets in the jurisdiction. The respondents, if successful, could find themselves with a costs order in their favour which they are unable to enforce.
3 The provision of security is rarely, if ever, a complete indemnity against the risk faced by respondents and needs to be pitched at some level which involves a reasonable recognition of the competing interests. In this case the respondents have provided evidence, which is not contested, of costs estimates on a party-party basis with two different figures dependent upon whether the proceedings are to go ahead in Perth or in the Brisbane registry of the Court. In each case there is a division between pre-trial costs and trial costs. The pre-trial costs, if the proceedings were to go ahead in Perth, are estimated at $131,089.50. If they were to go ahead in Brisbane, they are estimated at $124,096.50.
4 The applicant has not been particularly forthcoming about the impact of a security order on his ability to conduct these proceedings. I have an affidavit sworn by his solicitor, Mr Mallon, in which he says that in relation to the suggested figure of $100,000 sought by the respondents, the applicant would need either to sell some of his available assets or borrow or obtain a bank guarantee against the security of those assets. It is not suggested that an order for security for costs would, even at the level of $100,000, have the effect of stifling the litigation in the sense that the applicant would be unable to proceed. The highest it seems to be put in his solicitor’s affidavit is that the provision of the security would impose significant additional costs upon the applicant and place significant restrictions upon his personal financial freedom and planning. One can accept, of course, that exposure to an order for the provision of a not insignificant sum of money does have some impact upon a person’s financial flexibility, but the quantum of that impact is difficult to judge without a more fulsome account of that person’s financial position than has been offered in this case.
5 This is a case in which it is possible that when interlocutory processes have been completed, or in the course of interlocutory processes, there may be a negotiated resolution. I don’t think it is appropriate yet to make an order for security to cover the whole of the litigation. I propose to do it on a staged basis covering security for costs up to the point of trial. I will allow liberty to apply if circumstances change to such an extent that a justification can be shown for varying the order that I propose to make.
6 I do not propose to order the full sum of $100,000 which was sought,
albeit in respect of the proceedings by the respondents.
I will make no
distinction between Perth and Brisbane for this purpose as that suggests a false
level of precision. It seems to
me, having regard to the uncontested estimates
of costs, that an appropriate figure is $60,000 up to the point of, but not
including,
the first day of trial. I propose that the security should be
provided, by 26 February 2007, either by way of payment into Court
or by way of
bank guarantee in a form acceptable to the Registrar. I don’t see much
point in staying proceedings until then,
but would stay proceedings from that
date if the security has not been provided, and will give liberty to
apply. I will hear the parties on the question of costs of the motion so far as
it relates to security.
The transfer application
7 The proceedings were commenced in the Perth Registry of the Court. The respondents seek its transfer to the Brisbane Registry. The question of the Registry from which the proceedings should be conducted does not raise matters of high principle. It is essentially a matter of case management and proper recognition of the legitimate interests of each of the parties reflected, in part, in the balance of convenience as between them and, of course, the convenience of the Court and any economies and efficiencies that may attach to one choice or another. These matters used to be more critically dependent upon choice of Registry than they are today and some of the earlier cases about the discretion to transfer from one Registry to another may have to be read in that context, without affecting the underlying criteria that inform this discretion.
8 In this case the applicant resides in the United States and from his point of view it probably makes little difference whether the proceedings have been commenced in Perth or Brisbane save for the fact that he has engaged legal representatives based in Perth. This is not a case in which the respondents are living in the Brisbane CBD. They are in Queensland but as Ms Cochrane points out, there is a degree of geographical dispersion that makes convenience of access to the Registry in Brisbane somewhat academic. The interests at this stage of the proceedings are fairly evenly balanced.
9 Mr Lamb has chosen to engage solicitors, in whom he no doubt has confidence, based in Perth. The respondents have engaged representation in Brisbane. So far as the interlocutory processes are concerned, unless some unusual circumstance occurs, it matters little whether the proceeding is in the Perth or Brisbane Registry because in either event the party not in the home Registry will be able to participate by way of video-link or even teleconference. The Court also has the facility for the electronic filing of submissions and the like and the conduct of litigation, in part, through that. The question of travel between Perth and Brisbane, Los Angeles, Perth and Brisbane, raised by the parties is, in my opinion, of little relevance at this stage of the proceeding. The question of transfer does not impact on the question of the place of the trial nor, ultimately, the judge who conducts the trial.
10 The docket system to which Ms Cochrane has referred offers the advantage of continuity in case management, at least up to the point of trial. While ordinarily the docket judge will hear the trial of the action which he or she has been managing, it is not unusual for there to be cases in which the trial is allocated to another judge for reasons of convenience. So it might be that if this case were not to be transferred but it were thought that it would be most conveniently heard and determined in Brisbane, a judge from the Queensland Registry could hear the case without having been involved in the pre-trial case management. Much will depend upon the geographical distribution of the witnesses and it may be that part of the trial will be conducted in one centre and part in another. It is too early to make a determination about that.
11 So far as the return of subpoenas to produce documents is concerned, production can readily be directed at the Registry, most conveniently located from the point of view of those who have to respond to those subpoenas. Those are all case management matters which can be dealt with in due course.
12 Although this proceeding, in terms of the location of the respondents,
might broadly be called a Queensland case from the respondents’
point of
view, it is not inherently a Brisbane case. The interests of the parties at
this stage are fairly evenly balanced. I think
it is premature to transfer the
matter. I will entertain, as foreshadowed, applications as to the conduct and
location of the trial
and as to the place of compliance with things such as
subpoenas, and if it becomes necessary at some point to have a case management
conference where the physical presence of representatives and their parties is
desirable, it may be that
there can be a particular direction given in
respect of that, but I don’t propose to accede to the motion.
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I certify that the preceding twelve (12) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice French.
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Associate:
Dated: 2
February 2007
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Solicitor for the Applicant:
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Counsel for the First, Third, Fourth & Fifth Respondents:
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Solicitor for the First, Third, Fourth & Fifth Respondents:
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Counsel for the Second Respondent: Solicitor for the Second Respondent: |
Mr T Searle Lavan Legal |
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Date of Hearing:
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Date of Judgment:
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