Skyring v Sweeney [1999] FCA 61

FEDERAL COURT OF AUSTRALIA

Skyring v Sweeney [1999] FCA 61 ALAN GEORGE SKYRING V PAUL DESMOND SWEENEY QG 162 of 1998 SPENDER J 4 FEBRUARY 1999 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 162 of 1998

BETWEEN: ALAN GEORGE SKYRING

APPLICANT

AND: PAUL DESMOND SWEENEY

RESPONDENT

JUDGE(S): SPENDER J

DATE OF ORDER: 4 FEBRUARY 1999

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. In relation to the notice of motion brought by the first and second respondents on 8 December 1998: (a) the notice of appeal against the first respondent (the Australia and New Zealand Banking Group Limited) be struck out; (b) the appellant provide security for the costs to be incurred by the respondent in the appeal QG 162 of 1998 between Alan George Skyring as appellant and Paul Desmond Sweeney as second respondent, such security to be in a form satisfactory to the Registrar; (c) the appeal be stayed pending the provision by the applicant of the abovementioned security for costs.

2. In relation to the notice of motion brought by the appellant on 18 January 1999, the orders sought therein are refused.

3. In relation to the notice of motion brought by the appellant on 2 February 1999, the orders sought therein are refused.

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 162 of 1998

BETWEEN: ALAN GEORGE SKYRING

APPLICANT

AND: PAUL DESMOND SWEENEY

RESPONDENT

JUDGE(S): SPENDER J

DATE: 4 FEBRUARY 1999

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 I am presently concerned with two aspects of a number of notices of motion. The first is whether the appeal in QG162 of 1998, where the parties are Alan George Skyring as appellant and Paul Desmond Sweeney as respondent, Mr Sweeney being Mr Skyring's Trustee in Bankruptcy, should be heard at the same time as an appeal which is listed for hearing where the parties are Mr Skyring and the Australian Electoral Commission. The latter is an application for leave to appeal from an interlocutory order made by Dowsett J. 2 It seems to me that I should not grant that application, not only because of the present inconvenience in relation to bringing that before an appeal court in the time frame that is available, but particularly because there is, in relation to the appeal in QG 162 of 1998, an application for security for costs, an application the kind of which has not been made in the application for leave to appeal from the judgment of Dowsett J involving the Australian Electoral Commission. 3 Notwitstanding Mr Skyring's forceful submissions that the provisions of Magna Carta, amongst others, prohibit the imposition of orders for security for costs as that involves in a sense the selling of justice, and notwithstanding Mr Skyring's argument - almost a mantra really - that it is impossible to comply with an order for security for costs, it being asserted by him that paper money is not legal tender in Australia, in this case, in my opinion, on the proper application of s 56 of the Federal Court of Australia Act 1976, I ought to order the provision of security for costs. 4 Section 56(1) provides: "The Court or a Judge may order an applicant in a proceeding in the Court or an appellant in an appeal to the Court to give security for the payment of costs that may be awarded against him." 5 The Full Court (Shepherd, Morling, and Neaves JJ) in Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 said at 3: "Section 56(1) is in general terms. Clounsel for the appellant conceded that this was so, but argued that s 59 gave to the judges of the court power to limit, by making appropriate rules, the ambit of the discretion which would otherwise have been available under s 56. He contended that the promulgation of O 28 r 3 therefore effectively prevented the making of orders for security for costs in circumstances other than those referred to in r 3 itself.