Case: Barton v Minister for Foreign Affairs (1984) 2 FCR 463
Outcome: applied
The applicant's solicitor has sworn that the applicant is impecunious. The Commonwealth submitted that, while this is not a decisive factor when the party is a natural person resident in Australia, it is a significant factor in its favour where, as here, the applicant resides outside Australia and has not established any assets against which a judgment for costs can be enforced (per Cooper J in Re Skase; Ex parte Skase v Abbott [1992] FCA 534 at 10) . The applicant submitted that it would be a curious result that an impecunious person within jurisdiction could not be ordered to pay a security, but one outside the jurisdiction could, when the place of residence does not affect the impecuniosity. In Barton v Minister for Foreign Affairs (1984) 2 FCR 463 (' Barton '), Morling J said (at 469): ' ...in my view...it would be an odd result if an impecunious plaintiff was ordered to give security merely because he was ordinarily resident outside Australia, although his absence from Australia had little, if any, prejudicial effect on the respondent's prospects of recovering his costs. ' 17 The Commonwealth submitted that any damages this Court may award the applicant in the event that he is successful will be less than the debts he allegedly owes the Commonwealth. The Commonwealth has given an undertaking to this Court that it will file a cross-claim for those debts should the matter proceed. Those debts arise from the costs incurred by the Commonwealth both in holding the applicant in custody as an unlawful citizen (although excluding the period for which the applicant now claims wrongful imprisonment), and in removing him to South Korea. In addition there is an unpaid order for costs in the sum of $4800 made by this Court in an unsuccessful challenge to the decision of the Immigration Review Tribunal to refuse him a bridging visa. The Commonwealth's evidence is that the debt is approximately $181 000 (not including costs attributable to the contested period). 21 The applicant submitted that the authorities establish that where there is reciprocal legislation for the enforcement of foreign judgments, any security ordered is to be limited to the costs of enforcement in the other jurisdiction: see Connop v Varena [1984] 1 NSWLR 71 (' Connop ') at 75 per Rath J; Barton at 470 per Morling J; D S Parklane Development Pty Ltd v Korea First Finance Ltd (unreported, Supreme Court of New South Wales, Santow J, 20 August 1997) at 6; Bou-Simon v Attorney-General of the Commonwealth of Australia [1998] FCA 1701 at 5-6; Ogawa v University of Melbourne [2004] FCA 491 at [42] - [43] per Marshall J; Mindshare Communications Ltd v Orleans Investment Pty Ltd [2000] FCA 251 at [33] - [40] per Katz J. 22 In Connop , Rath J said (at 74): '[T] here may be some delay, inconvenience and expense arising from registration and execution of a judgment in New Zealand; but apart from this I see no difference in regard to the costs of the ... defendants between the circumstances of this case and those of a similar case where a plaintiff is not ordinarily resident outside the State. ' 23 The Commonwealth furnished no evidence as to the potential costs of enforcing a judgment in South Korea or in Australia. The Korean lawyer's advice included a break down of the costs of registering a judgment in South Korea, which amounted to less than $1000. This amount covers the cost of registering the judgment, service fees, and court-assessed legal costs. 24 I accept that, as a practical matter, the apparent debt to the Commonwealth may and would be sued on as a cross-claim and, to the extent that such a claim may be made out, it could operate to reduce any judgment that might otherwise be given for damages recoverable by Mr Soh. There is no justification, however, for concluding that the applicant's claim against the Commonwealth will necessarily or even very likely be futile. There may be some defence to the projected cross-claim and it is too early to estimate Mr Soh's possible damages. Reference to other wrongful imprisonment cases is of dubious value. 28 The Commonwealth has, however, no valid claim to be put in a better position than if Mr Soh were present in Australia. Morling J's approach in Barton is in point here (see 469-470). If he were in Australia his impecuniosity should be taken as a given. If the Commonwealth assertions in the litigation are vindicated, the Commonwealth could take steps to establish the veracity of his claim to be impecunious and, if thought fit, to issue execution. It is certain that there would be some costs associated with this. 29 I accept that any costs order obtained by the Commonwealth would be enforceable in South Korea. The absence of expert evidence from a Korean lawyer to the contrary is telling. The inferences as to continuing reciprocity between Australia and South Korea, which arise from the terms of the Act and the fact and terms of the relevant Regulations, are the more easily drawn because of such absence. The consequence is that the only worsening of the Commonwealth's position would be in relation to attempted execution of the costs order in South Korea against the possibility that the applicant's claim of impecuniosity is false. It may well be that such costs would exceed the costs of execution in Australia to some unknown degree.