mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Amalgamated Mining Services Pty Ltd v Warman International Ltd and Anor (1988) 88 ALR 63
Outcome: distinguished
PCR has submitted that it is not the true 'aggressor' in the present application and relies upon the decision of Wilcox J in Amalgamated Mining Services Pty Ltd v Warman International Ltd and Anor (1988) 88 ALR 63 (' Amalgamated Mining '). In those proceedings Amalgamated Mining sought a declaration that statements contained in a letter from Warman's solicitors alleging that Warman's copyright had been breached by Amalgamated Mining's supplier were unjustified. In deciding that Amalgamated Mining should not be required to pay security for costs, Wilcox J said (at 67-8): 'If one applies the homely test adopted by Scrutton LJ [in Maatschappij Voor Fondsenbezit v Shell Transport and Trading Co and Ors [1923] 2 KB 166] of asking who, in the litigation, was the attacker and who was the defender, I think it must be said that the first attack came in the letter from [Warman's solicitors] . Although the letter was not written directly to Amalgamated Mining, it is that company which has an interest in defending and, in a commercial sense, probably has very little alternative other than to take that course. I think that it is an accurate analysis of the matter to say, therefore, that it is the respondents to the principal proceeding who are the attackers and that Amalgamated Mining is, in substance, the defender.' His Honour also referred to the decision of the High Court in Willey v Synan [1935] HCA 76 ; (1935) 54 CLR 175. 31 I consider the facts of the present case to be different from those in Amalgamated Mining and Willey v Synan . Those were both cases in which proceedings had been instigated to forestall a threat by a respondent to existing entitlements of the applicant. In these proceedings the respondents have not threatened existing rights of PCR. PCR does not have any specific entitlement to the licence. Although it is true that the decision of ACMA has led to PCR being unable to operate its radio station, PCR only ever held a temporary licence and never had an ongoing right to operate. It cannot be said that the action of either respondent deprived, or threatened to deprive, PCR of its rights such that it was forced to bring these proceedings to protect itself. Accordingly I do not consider that PCR can reasonably be construed as ' the party attacked ' in these proceedings, or that either of the respondents can be considered as the true attacker. 32 PCR also submits that GCB is joined only as an interested party, and not as an 'adversary' to PCR. PCR refers to the fact that no relief is sought against GCB specifically, and says that GCB was only joined in the present proceedings because Wilcox J had required its joinder in the previous litigation. PCR also refers to the fact that, despite the fact that PCR was successful before Wilcox J, GCB was not required to pay PCR's costs, which it submits recognised GCB's non-adversarial status in the proceedings. The submission is that GCB, although joined, has no real need to participate in these proceedings because no relief is claimed against it.
Case: Barton v Minister for Foreign Affairs (1984) 2 FCR 463
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.'
Case: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1
Outcome: considered
In an often-cited passage of the Full Federal Court, Sheppard, Morling and Neaves JJ in Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 said at 4: 'In our opinion a court is not justified in declining to order security on the ground that to do so will frustrate the litigation unless a company in the position of the appellant here establishes that those who stand behind it and who will benefit from the litigation if it is successful (whether they be shareholders or creditors or, as in this case, beneficiaries under a trust) are also without means. It is not for the party seeking security to raise the matter; it is an essential part of the case of a company seeking to resist an order for security on the ground that the granting of security will frustrate the litigation to raise the issue of the impecuniosity of those whom the litigation will benefit and to prove the necessary facts.' 23 The fact that PCR has chosen to oppose the application without providing adequate evidence of its financial position poses a difficulty for the Court. However, given the evidence that PCR is a not-for-profit organisation managed by volunteers, I think it is reasonable to infer that those supporters will not benefit from the litigation in any pecuniary sense, especially since these proceedings seek administrative law remedies rather than damages.
Case: Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301
Outcome: referred to
The application by GCB has been promptly brought, having been filed one day after the first return date for the application. PCR submitted that the motion was premature, because the leave application had not yet been heard. I see no reason why GCB should have waited until after the leave application before bringing its application for security for costs. Had it done so, it would have been open to PCR to submit that GCB had delayed in bringing an application for security for costs, by reason of which expenses had been incurred in prosecuting the application: see Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301 at 308; Gartner v Ernst &amp; Young (No 3) [2003] FCA 1437 at [34] . Further, GCB may have been unable to recover its costs on the leave application if PCR was unsuccessful. It was appropriate for GCB to bring its application when it did.
Case: Cameron's Unit Services Pty Ltd and Anor v Kevin R Whelpton &amp; Associates (Australia) Pty Ltd and Anor (1986) 13 FCR 46
Outcome: cited
In these proceedings PCR has an interest in the litigation since ACMA's decision resulted in PCR's inability to continue to broadcast. This is not a case where PCR is being used as a ' stalking horse to enable someone else to evade personal responsibility ': see Cameron's Unit Services Pty Ltd and Anor v Kevin R Whelpton &amp; Associates (Australia) Pty Ltd and Anor (1986) 13 FCR 46 at 53.
Case: Chang v Comcare Australia [1999] FCA 1677
Outcome: referred to
This passage accords with the comments of Moore J in Chang v Comcare Australia [1999] FCA 1677 at [25] where his Honour said: 'While impecuniosity is not, by itself, sufficient to warrant an order for security, it is generally a relevant consideration ...' 14 Several of the factors outlined above have relevance to the facts of the present case. 15 GCB submitted that PCR's claim was unlikely to succeed since it was brought out of time and was an appeal against a decision made by ACMA on remitter from a successful appeal by PCR to this Court. GCB said that after ACMA's initial decision was set aside, ACMA was concerned to ensure that the process for the award of the licence was thorough and complete and that for this reason PCR's challenge is likely to fail.
Case: Croker v Sydney Institute of TAFE (State of New South Wales) [2003] FCA 942
Outcome: referred to
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.
Case: Cultivaust Pty Ltd v Grain Pool Pty Ltd [2004] FCA 1366
Outcome: referred to
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.
Case: Equity Access Ltd v Westpac Banking Corporation &amp; Ors (1989) ATPR 40-972
Outcome: referred to
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.
Case: Gartner v Ernst &amp; Young (No 3) [2003] FCA 1437
Outcome: referred to
The application by GCB has been promptly brought, having been filed one day after the first return date for the application. PCR submitted that the motion was premature, because the leave application had not yet been heard. I see no reason why GCB should have waited until after the leave application before bringing its application for security for costs. Had it done so, it would have been open to PCR to submit that GCB had delayed in bringing an application for security for costs, by reason of which expenses had been incurred in prosecuting the application: see Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301 at 308; Gartner v Ernst &amp; Young (No 3) [2003] FCA 1437 at [34] . Further, GCB may have been unable to recover its costs on the leave application if PCR was unsuccessful. It was appropriate for GCB to bring its application when it did.
Case: King v Commercial Bank of Australia Ltd [1920] HCA 62 ; (1920) 28 CLR 289
Outcome: referred to
The only limitation upon the exercise of the power provided by s 56 is that it be exercised judicially, which means, as Rich J observed in King v Commercial Bank of Australia Ltd [1920] HCA 62 ; (1920) 28 CLR 289 at 292: '...that in each case the Judge has to inquire how, on the whole, justice will be best served ...' In Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72, Gaudron and Gummow JJ observed at [22] (in relation to s 69 of the Land and Environment Court Act 1979 (NSW), which confers a similar discretion): 'The power conferred by the section is to be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent.'
Case: KP Cable Investments Pty Ltd v Meltglow Pty Ltd and Ors (1995) 56 FCR 189
Outcome: referred to
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.
Case: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72
Outcome: referred to
The only limitation upon the exercise of the power provided by s 56 is that it be exercised judicially, which means, as Rich J observed in King v Commercial Bank of Australia Ltd [1920] HCA 62 ; (1920) 28 CLR 289 at 292: '...that in each case the Judge has to inquire how, on the whole, justice will be best served ...' In Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72, Gaudron and Gummow JJ observed at [22] (in relation to s 69 of the Land and Environment Court Act 1979 (NSW), which confers a similar discretion): 'The power conferred by the section is to be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent.'
Case: Re Trade Practices Commission v Milreis Pty Ltd and Ors; Application by Thomson Publications (Australia) Pty Ltd (1978) 18 ALR 17
Outcome: cited
Order 6 r 8(1)(b) of the Federal Court Rules states that the Court may order that a person be added as a party where such joinder ' is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated on '. It is important that the Court have an opportunity to hear from GCB in respect of any prejudice which it would sustain because of PCR's delay in bringing these proceedings. Further, GCB has a direct interest in the outcome of these proceedings, since an order by the Court quashing ACMA's decision would affect GCB's right to continue broadcasting: see Re Trade Practices Commission v Milreis Pty Ltd and Ors; Application by Thomson Publications (Australia) Pty Ltd (1978) 18 ALR 17 at 23. In these circumstances, although no relief is sought against GCB, its position is threatened by the relief sought by PCR. GCB's role is not akin to an 'observer' having no active role. Accordingly it is entitled to defend these proceedings and to seek security for its costs in so defending them.
Case: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 34 ACSR 673
Outcome: distinguished
A further consideration is that PCR is not a mere nominal applicant. In this sense, the present facts are distinguishable from those considered by Hely J in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 34 ACSR 673, in which the applicant had no private right or interest. Hely J observed in that case at [37]: 'In my view, the fact that no private right or special interest of the applicant is involved in these proceedings is a factor which weighs in favour of making an order for security, rather than against it.' 25 His Honour added at [38]: 'If those who control the applicant wish to have the benefit of litigating when no private right or special interest of the applicant is at stake in the proceedings and when the applicant is impecunious, then it is appropriate that security for the respondent's costs be provided.'
Case: Willey v Synan [1935] HCA 76 ; (1935) 54 CLR 175
Outcome: distinguished
PCR has submitted that it is not the true 'aggressor' in the present application and relies upon the decision of Wilcox J in Amalgamated Mining Services Pty Ltd v Warman International Ltd and Anor (1988) 88 ALR 63 (' Amalgamated Mining '). In those proceedings Amalgamated Mining sought a declaration that statements contained in a letter from Warman's solicitors alleging that Warman's copyright had been breached by Amalgamated Mining's supplier were unjustified. In deciding that Amalgamated Mining should not be required to pay security for costs, Wilcox J said (at 67-8): 'If one applies the homely test adopted by Scrutton LJ [in Maatschappij Voor Fondsenbezit v Shell Transport and Trading Co and Ors [1923] 2 KB 166] of asking who, in the litigation, was the attacker and who was the defender, I think it must be said that the first attack came in the letter from [Warman's solicitors] . Although the letter was not written directly to Amalgamated Mining, it is that company which has an interest in defending and, in a commercial sense, probably has very little alternative other than to take that course. I think that it is an accurate analysis of the matter to say, therefore, that it is the respondents to the principal proceeding who are the attackers and that Amalgamated Mining is, in substance, the defender.' His Honour also referred to the decision of the High Court in Willey v Synan [1935] HCA 76 ; (1935) 54 CLR 175. 31 I consider the facts of the present case to be different from those in Amalgamated Mining and Willey v Synan . Those were both cases in which proceedings had been instigated to forestall a threat by a respondent to existing entitlements of the applicant. In these proceedings the respondents have not threatened existing rights of PCR. PCR does not have any specific entitlement to the licence. Although it is true that the decision of ACMA has led to PCR being unable to operate its radio station, PCR only ever held a temporary licence and never had an ongoing right to operate. It cannot be said that the action of either respondent deprived, or threatened to deprive, PCR of its rights such that it was forced to bring these proceedings to protect itself. Accordingly I do not consider that PCR can reasonably be construed as ' the party attacked ' in these proceedings, or that either of the respondents can be considered as the true attacker.
Case: Comcare v Etheridge [2006] FCAFC 27
Outcome: cited
31A empowers the Court to award summary judgment in relation to a proceeding if satisfied that the applicant has no reasonable prospect of prosecuting it. The basis of the respondent Secretary's resort to s 31A is the contention that the applicant has not identified any question of law such as would enliven the Court's jurisdiction under s 44 of the AAT Act. Given that an appeal lies "on a question of law" only and not on a question of fact or of mixed law and fact: see Comcare v Etheridge [2006] FCAFC 27 at [11] - [17] the issues before me are whether such a question has been raised by Mr Kronen and whether his argument thereon is sufficiently strong to warrant the matter going to trial: Vranic v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 672.
Case: Vranic v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 672 
Outcome: cited
31A empowers the Court to award summary judgment in relation to a proceeding if satisfied that the applicant has no reasonable prospect of prosecuting it. The basis of the respondent Secretary's resort to s 31A is the contention that the applicant has not identified any question of law such as would enliven the Court's jurisdiction under s 44 of the AAT Act. Given that an appeal lies "on a question of law" only and not on a question of fact or of mixed law and fact: see Comcare v Etheridge [2006] FCAFC 27 at [11] - [17] the issues before me are whether such a question has been raised by Mr Kronen and whether his argument thereon is sufficiently strong to warrant the matter going to trial: Vranic v Secretary, Department of Education, Employment and Workplace Relations [2009] FCA 672.