Croker v Deputy Registrar of the High Court of Australia [2003] FCA 628

FEDERAL COURT OF AUSTRALIA

Croker v Deputy Registrar of the High Court of Australia [2003] FCA 628 CLAYTON ROBERT CROKER v DEPUTY REGISTRAR OF THE HIGH COURT OF AUSTRALIA & ANOR N134 of 2003 MADGWICK J 15 MAY 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N134 OF 2003

BETWEEN: CLAYTON ROBERT CROKER

APPLICANT

AND: DEPUTY REGISTRAR OF THE HIGH COURT OF AUSTRALIA

RESPONDENT

JUDGE: MADGWICK J

DATE OF ORDER: 15 MAY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appellant provide security for the payment of the second respondent's costs that may be awarded against the appellant, in the sum of $8,000. 2. The security shall be given by way of bank guarantee or in other form satisfactory to the Registrar. 3. The appeal be stayed until that security is provided. 4. The appellant pay the second respondent's costs of his notice of motion for security for costs filed 8 April 2003. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N134 OF 2003

BETWEEN: CLAYTON ROBERT CROKER

APPLICANT

AND: DEPUTY REGISTRAR OF THE HIGH COURT OF AUSTRALIA

RESPONDENT

JUDGE: MADGWICK J

DATE: 15 MAY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 This is an application under s 56 of the Federal Court of Australia Act 1976 (Cth) for security for costs on appeal from a judgment of Allsop J given on 3 February 2003 (2003) FCA 34. Among other things s 56 of the Act provides that: '(1) 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 or her. (2) The security shall be of such amount, and given at such time and in such manner and form, as the Court or Judge directs.' 2 Subsection (5) says: 'This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the furnishing of security.' 3 Order 28 provides for the procedure in relation to applications for security of costs generally and appears to be intended to apply to applications for security for costs in appeals. Order 52 provides for the general procedure in relation to appeals. Rule 20 provides: 'Unless the Court or a Judge otherwise directs no security for costs of an appeal to the court shall be required.' 4 In Paton, S v Campbell Capital Ltd [1993] FCA 449, cited in a number of cases thereafter, most recently Dranichnikov v Centrelink [2002] FCA 1622 at [10] (per Spender J), Burchett J said that it places "something of an onus" on an applicant for security for costs to direct that security should be provided. 5 There has long been a rule of practice and justice that poverty is no bar to a litigant. However, the view is taken that there was an exception to this salutary rule in the case of appeals on the basis that the appellant had already had the benefit of a decision of a court. Thus, an insolvent party unsuccessful at the first instance, but seeking to appeal, had not been shut out from the courts on account of impecuniosity but, as Ballam LJ put it in Cowell v Taylor (1885) 31 ChD 34 at 38, would be "… only prevented, if he cannot find security, from dragging his opponent from one Court to another". 6 The correct, modern approach, I think, was set out in Australian Solar Mesh Sales Pty Ltd v Anderson (1999) 48 IPR 15 at 17 [11] by Sackville J. That is, that the impecuniosity of the appellant enlivens the power of the Court to make an order for security for costs pursuant to s 56 of the Act, but it remains necessary to consider whether, as a matter of discretion, the Court should make an order in favour of the respondents. 7 There is no doubt that Mr Croker is impecunious and there is a substantial likelihood that the second respondent in the principal proceeding, the applicant here, could not recover his costs of the appeal from Mr Croker. Further, the evidence shows that whatever the effect Dr Challoner's dental treatment may have had on Mr Croker, and in respect of which Mr Croker has used Dr Challoner, Mr Croker was already impecunious, so that the impecuniosity does not arise from the conduct of the party about which the appellant makes complaint. 8 In Bates v Omareef Pty Ltd (4 May 1998 , unreported) Hill J said: 'No doubt where a court is of the view that the appeal is without real merit or substance or that the issue sought to be litigated in the appeal is not one of any real importance, a court would likely exercise a discretion to order security for costs in an appeal, at least where there is a real prospect that the