Case: The Airtourer Co-operative Ltd v Millicer Aircraft Industries Pty Ltd [2004] FCA 1400
Outcome: considered
The above considerations are to be construed in light of the fundamental right of a citizen to have access to the courts: see The Airtourer Co-operative Ltd v Millicer Aircraft Industries Pty Ltd [2004] FCA 1400 at [18] (' Airtourer '). As Morling J observed in Barton v Minister for Foreign Affairs (1984) 2 FCR 463 at 469: 'It has never been the case that impecuniosity on the part of a plaintiff is a ground for ordering him to give security for costs. In Pearson v. Naydler [1977] 1 W.L.R. 899, Megarry V-C said: "The basic rule that a natural person who sues will not be ordered to give security for costs, however poor he is, is ancient and well-established. As Bowen L.J. said in Cowell v Taylor (1885) 31 Ch. D. 34 at 38, both at law and in equity 'the general rule is that poverty is no bar to a litigant'. The power to require security for costs ought not to be used so as to bar even the poorest man from the courts."' However, as Branson J noted in Airtourer at [21]: 'Recognition by this Court of the general rule that poverty is no bar to a litigant has not meant that the Court has proceeded on the basis that an order for security for costs can never be made against a litigant. An order for security for costs is only rarely sought against a litigant who is not impecunious. An order for security for costs made against an impecunious litigant when justified by a factor other than mere impecuniosity does not offend the general rule that poverty is no bar to a litigant.' 27 I consider that the circumstances of the present case are, despite some similarities, also distinguishable from those considered by Branson J in Airtourer . That case involved an impecunious co-operative which was pursuing litigation out of a limited pool of funds. There was evidence before her Honour that the applicant planned to exhaust its funds to meet its own legal costs, leaving no funds in reserve for any costs order made against it. Branson J commented at [27]: 'I do not conclude that an order requiring the applicant to provide a relatively modest sum by way of security for costs would preclude the applicant from pursuing its application to the Court. It might require the directors of the applicant to request additional funds from members of the applicant but, as the proceeding is presumably being pursued by the applicant in the interests of its members, I see nothing inappropriate in such an outcome.' 28 Since PCR is a not-for-profit organisation which aims to provide radio broadcasts serving youth and ethnic minority groups, the proceedings are not being pursued by PCR in the interests of its 'members' so much as in the interests of the wider community group which it serves. I am not satisfied that volunteer members of a not-for-profit organisation should be required to provide funds for litigation when the organisation is impecunious. To impose such a requirement would mean a not-for-profit community organisation with a history of providing services to the public, which was legitimately bringing proceedings to the Court, might be prevented from pursuing an action to protect its interests merely on the ground of impecuniosity. This would, in my opinion, breach the principle that impecuniosity should not, without more, prevent a litigant from accessing the courts. 29 However, the difficulty which remains in this instance is that, because PCR has provided very limited information with respect to its financial status, members, objectives, any possible sources of funding and other relevant details, no conclusive finding can be made on the evidence as to the effect which an order for security for costs may have in these proceedings. Further, in the absence of a direct submission from PCR that the proceedings would be stifled if an order were made, I am unwilling to draw the inference that this consequence would follow.