van Oostveen, William v Commonwealth of Australia [1998] FCA 1261

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 39 of 1998

BETWEEN: WILLIAM VAN OOSTVEEN

Applicant

AND: COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE: DOWSETT J

DATE OF ORDER: 29 SEPTEMBER 1998

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. Adjourn the motion to strike out the appeal to the Registrar for listing before the Full Court. 2. Dismiss the motion for security for costs. 3. There will be no order as to the costs of the proceedings before me today. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 39 of 1998

BETWEEN: WILLIAM VAN OOSTVEEN

Applicant

AND: COMMONWEALTH OF AUSTRALIA

Respondent

JUDGE: DOWSETT J

DATE: 29 SEPTEMBER 1998

PLACE: BRISBANE

REASONS FOR JUDGMENT This is an application for security for costs brought on behalf of the Commonwealth, which is the respondent to an appeal lodged by the appellant, William Van Oostveen. The appeal is from a decision of my brother Drummond striking out an action commenced by the appellant seeking damages from the Commonwealth, apparently arising out of his employment. Two applications are brought before me today on behalf of the Commonwealth. One is to strike out the appeal as incompetent, and the other is for security for costs. I have already dealt with the first motion. That application is framed as an application to strike out the appeal as incompetent, but when the matter came before me this morning Mr Bickford for the Commonwealth sought to amend the application to turn it into an application pursuant to O 20 r 2. In the course of argument I indicated that I shared the view expressed by O'Loughlin J in D'Ortenzio v Telstra Corporation Limited (O'Loughlin J, 1 May 1998, unreported), that there was no power in a single judge to act pursuant to that rule in connection with an appeal. In those circumstances I have adjourned the unamended motion to the Registrar for listing before the Full Court. A parallel application was brought for security for costs of the appeal. It is based upon a perception that having regard to the appellant's other financial obligations, he does not have assets sufficient to meet an order for costs made against him should his appeal be unsuccessful. I record that I accept the submission made on behalf of the Commonwealth that it is likely that the appeal will be unsuccessful.