High Court of Fiji

[2]. The plaintiff was a resident of Fiji until May 2011 when he emigrated to the United States of America. He now works and resides in Florida. This is common ground between the parties. This is also the explanation given by Mr. Patel as to why the application for security for costs was only filed in December 2011. On the other hand, Ms. Tabuakuro argues that the defendant had delayed considerably in applying for security for costs.

[3]. It is also common ground between the parties that the plaintiff has no assets in Fiji.

OPPOSITION

[4]. The plaintiff has not bothered to file any affidavit in opposition through their solicitors, Koya & Company. Although Ms. Tabuakuro, counsel for the plaintiff, did make submissions at the hearing about how my discretion should be exercised.

RELEVANT LAW

[5]. The authority of the court to grant &#s provided for in&#16n Order >, Rule 1(le 1(1)(a) of t60;High Court Rules ules 1988:

................

then, if having regard to all the circumstances of the case, the Court thinks it is just to do so, it may order the plaintiff to give such security for the defendant's costs of the action or proceeding as it thinks just."

[6]. Once it is established that a plaintiff is not ordinarily resident in Fiji, the onus shifts to him or her to convince the court that - having regard to all the cirances of the the case – an order for security for sh/b>should not be granted.

[7]. The plaintiff may succeed in this regard bying that he or she has property within the jurisdiction whin which can be made subject to the process of the court (as per Fatiaki J in Babu Bhai Patel –v- Manohan Aluminium Glass Fiji Ltd Suva High Court Civil AcNo.n No. HBC 0019/19).

[8]. But still, even if the plaintiff is ordinarily resident out of Fiji and has no assets in Fiji, he may still avoid havi pay security for costs if he is able to convince the courtcourt that such an order would be oppressive to him.

DELAY

[9]. Delay is relevant in the balancing exercise and in determining what is just between the parties. The White Book at paragraph-3/28 st/b>states as follows:

Delay in making an applicatirn for security for cos60&#1b>&#16> ..... may be relevant toexee exercisthe courts discretion to orto order security although in most cases, delay is not a decisive factor, it may beted as imporesporespec wherhas leds led or m or may have led the plaintiff to act to h to his detriment or may cause him hardship in the future conduct of the action. (my emphasis)

[10]. As the above passage states, even if delay is made out in any given case, it does not necessarily mean that an order for security osts wwill be refused. Rather, the inquiry should then be directed to whether or not there is a rational connection between the delay and the effect of any order for <60;sey fors.
>

[11]. In Fina Researcsearch SA v Haliburton Energy Services Inc [2002] FCA 1331, turt asked the following questions after a finding that the defendant had delayed:

• (a) whether the plaintiff has incurred significant costscosts which would be thrown away if it is not in a position to pay the security? and.
  
• (b) whether the plaintiff has been denied the opportunity of deciding not to proceed at any early stage?
  

[12]. Generally, where the defendant has delayed in filing the application and which delay has forced the plaintiff to incur expenses in the litigation - the courts will be reluctant to order securor costs .. The further intiaintiff has proceeded in an action and the greater the costs it has been allowed to incur without steps being taken to apply for an order for sty fots,
[13]. And delay is to be measured from the point when the defendant first beca became aware of the circumstances which would justify a sec for &#160 &#16> application (see Inoke J's J's decision in [2009] FJHC 191; HBC 347.2005 (4 September 2009) and Masdit's ruling in&#160 Kadavppompanited iqui iquidatuidation) ion) v Dominion Insurance Limited& [2009] FJHC BC 508.2006 2006 (27 February 2009)).
ANALYSIS

[14]. The plaintiff emigrated to the United States of America in May 2011. And the defendant applied for security for costs in December 2011 immediately after it became aware of the change in the plaintiff's residency status. The onus of showing oppression rests with the plaintiff who has failed to discharge that burden by not filing any affidavit.

CONCLUSION

[15]. After having considered all, I order that the plaintiff pays into court within 28 days of the date of this Ruling the sum of FJD$10,000 as security for costs. Costs in the cause.

Case adjourned to Tuesday ril 2012 > at 8.30 a.m. for mention.

...................................
Anare Tuilevuka
Master
At Lautoka
19 March 2012.

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