Case: Chapman v Luminis Pty Ltd [2002] FCA 496
Outcome: considered
Several authorities of this and other courts have considered the factors which should be taken into account in a security for costs application: see for example Equity Access Ltd v Westpac Banking Corporation &amp; Ors (1989) ATPR 40-972 per Hill J; KP Cable Investments Pty Ltd v Meltglow Pty Ltd and Ors (1995) 56 FCR 189 at 197-8 per Beazley J; Cultivaust Pty Ltd v Grain Pool Pty Ltd [2004] FCA 1366 at [13] per Finn J; Chapman v Luminis Pty Ltd [2002] FCA 496 at [13] per Tamberlin J (' Chapman v Luminis '); Croker v Sydney Institute of TAFE (State of New South Wales) [2003] FCA 942 per Bennett J. In summary, those considerations are: 1) the chances of success of the applicant and whether the claim is bona fide; 2) the risk that the applicant could not satisfy a costs order; 3) whether the application for security for costs has been promptly brought; 4) whether the application for security for costs is being used oppressively to deny an impecunious litigant access to the court; 5) whether the applicant's impecuniosity arises out of the act in respect of which relief is sought; 6) whether there are third parties standing behind the applicant who are likely to benefit from the litigation and if so, whether they have proffered security for the costs of the litigation; 7) whether an order for security for costs would frustrate the litigation; 8) whether there are any public interest considerations to be taken into account; 9) any matters relevant to the discretion which are distinctive to the circumstances of the case. 16 I am unable at this early stage of proceedings to form a conclusion concerning the merits of the application. As Tamberlin J said in Chapman v Luminis at [17]: 'It is neither possible nor appropriate on a security for costs application to reach any firm conclusions as to the prospects of an appeal being successful beyond a general consideration of the reasons for decision and the formation of a general overview.' 17 Although the appeal is from a decision by ACMA rather than from a decision of this Court, I consider Tamberlin J's observations are pertinent. The notice of appeal in these proceedings makes numerous challenges to the decision-making process engaged in by ACMA, and I am not able to assess the merits of those challenges without investigating factual material. The fact that the appellant's challenge relates to the second decision of ACMA does not give rise to the inference that the appeal will not succeed. 18 PCR has not provided any direct evidence to the Court with respect to its incorporation, office-bearers, or financial position, although in its oral submissions it made brief reference to the fact that it was impecunious. The only evidence relating to the current financial status of PCR is the statement contained in the affidavit of Mr Norbert Lindberg, secretary of PCR, that the delay by PCR in bringing proceedings has resulted, in part, from the need to raise funds to finance the litigation. The Court has no information with respect to the success of PCR's fundraising activities and no recent financial statements have been produced. The Court has been provided with financial statements from 2003-2004 but because PCR was still operating the radio station and was in receipt of community grants at this time, the statements provide very little guidance as to the current finances of PCR. Since early 2004 PCR, because of the loss of its broadcasting licence, has not been eligible for the community grants which has presumably had an adverse effect on its financial position.