Case: Upton v Tasmanian Perpetual Trustees Pty Ltd [2006] FCA 1336
Outcome: considered
Ms Lawrance, however, has already had the opportunity to have her claims litigated and has lost. Although she is entitled to prosecute her appeal in this Court, different considerations apply when security for costs is ordered in respect to an appeal: Tait v Bindal People [2002] FCA 322. Spender J there outlined the principles to be applied as follows: [2] The position in relation to security for costs in the present matter is governed by s56 of the Federal Court of Australia Act 1976 (Cth). S56 provides that security is to be of such amount and given at such time and in such manner and form as the Court or Judge directs. As to whether security for costs should be ordered, Cowell v Taylor (1885) 31 Ch D 34 at 38, a case of more than 100 years ago, sets out the fundamental principle: "The general rule is that poverty is no bar to a litigant, that, from time immemorial, has been the rule at common law. There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of Her Majesty's Courts, and so an insolvent party is not excluded from the Courts, but only prevented, if he cannot find security, from dragging his opponent from one Court to another". [3] What that passage demonstrates is that there is a difference in principle in relation to the ordering of security for costs in a first instance matter and the ordering, or the consideration of the ordering, of security for costs where one is at the appellate level. The difference is that, at the appellant level, there has already been a determination adverse to the person against whom security for costs is sought and, if it be shown that there is a substantial risk that even if successful the respondent to the application for leave to appeal, or to an appeal, will be deprived of his costs, such an outcome would clearly be unjust. [4] In a sense, it would be giving to a person who has been on the receiving end so to speak of a determination by the courts a free hit at great cost to the other party in the appeal proceedings. That consideration, it seems to me, is also reinforced by the judgment of Gummow J in Wiest v Director of Public Prosecutions and Anor [1988] FCA 568 , unreported 5 September 1988. That case involved appeals against extradition with penal consequences. Such consequences were clearly very relevant considerations, but discretionary reasons moved the Court not to order. Such discretionary considerations, which were particularly noted by Gummow J, included the delay between the filing of the papers and the bringing of the applications for security. His Honour referred to a particular circumstance which is relevant here, and that is that the applicant for security has a judgment in its favour. There was a reference by Gummow J to Bethune v Porteous (1892) 18 VLR 493 , again an old case. In that case, Hood J said (at 494): "the reason underlying the numerous and varying cases in which appellants have been ordered to give security will be found in the injustice to a successful litigant that may be caused if he be compelled to contest the matter for a second time without a probability of obtaining his costs if ultimately successful." That really is the fundamental question of justice behind my decision to order security for costs. See also: Fletcher v Commissioner of Taxation [1992] FCA 388 ; (1992) 37 FCR 288 at 290 1; Upton v Tasmanian Perpetual Trustees Pty Ltd [2006] FCA 1336 at [15] .