The New South Wales Court of Appeal (Leeming JA, White JA and Barrett AJA) in Pi v Zhou (No 4) [2018] NSWCA 87 has dismissed an application for an extension of time within which to review a decision of Payne JA dismissing proceedings for failure to comply with an order to provide security for costs of an appeal.
Payne JA had, pursuant to r 51.50(2A) of the Uniform Civil Procedure Rules 2005 (NSW), dismissed the applicant’s proceedings for an extension of time to appeal from a decision of a single judge of the Supreme Court by reason of the applicant’s failure to provide the security for costs which had been ordered. Payne JA had further held that, even assuming that r 51.50(2A) did not apply, the Court had inherent jurisdiction to dismiss the proceedings for failure to comply with an order to provide security for costs. [For a summary of Payne JA’s decision in Pi v Zhou (No 3) [2017] NSWCA 224, see K Ottesen, “Proceedings dismissed for failure to pay security for costs” 10 October 2017].
In dismissing the application for an extension of time within which to review Payne JA’s decision, the Court of Appeal made the following points (at [13]-[15]):
- There was nothing supplied by the applicant which had come close to identifying any error by Payne JA in dismissing the appeal following a lengthy delay and the failure to provide the security which had been ordered and confirmed on review, and which could not be challenged before Payne JA.
- Even if there were to be an extension of time, and reviewable error was to be found in Payne JA’s decision, the result would be that the original application for an extension of time to appeal from the orders which had been made in 2015 would continue to be stayed pending the provision of the security which had been ordered in 2016 by a single judge of appeal and confirmed in 2017 by three members of the Court of Appeal. There was nothing to suggest that the security would be provided, while in the meantime the costs incurred by the respondents would have increased.
- The applicant still had no intention of providing the security ordered. He had not sought special leave to appeal from the orders of the three members of the Court of Appeal that he provide the security but instead had sought to re-ventilate an issue which had been decided against him. He had pointed to no material change of circumstances since security for costs was ordered and to no error on the part of Payne JA. No basis had been made out to interfere with the order for security for costs which had been made by the Court of Appeal in 2017.
