The Airtourer Co operative Limited v Millicer Aircraft Industries Pty Limited [2004] FCA 1400

FEDERAL COURT OF AUSTRALIA

The Airtourer Co‑operative Limited v Millicer Aircraft Industries Pty Limited [2004] FCA 1400 PROCEDURE – security for costs – impecuniosity of the applicant – 'usual rule' that poverty no bar to litigation – whether usual rule survived enactment of s 56(1) Federal Court of Australia Act 1976 (Cth) PROCEDURE – security for costs – co-operatives – whether co-operative to be treated as a natural person PROCEDURE – security for costs – discretion – factors relevant to exercise of discretion

Co-operatives Act 1992 (NSW) s 9(1) Corporations Act 2001 (Cth) s 5F, s 1335 Federal Court of Australia Act 1976 (Cth) s 56 Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 cited Australian Communist Party v The Commonwealth (1951) 83 CLR 1 cited Barton v Minister for Foreign Affairs (1984) 2 FCR 463 applied Bell Wholesale Co Pty Ltd v Gates Export Corporation (1984) 2 FCR 1 applied Buckley v Bennell Design and Construction Pty Ltd (1974) 1 ACLR 301 cited Chang v Comcare Australia [1999] FCA 1677 cited Co-operative Farmers' and Graziers' Direct Meat Supply Limited v Smart ('Co-operative Farmers' and Graziers'') [1977] VR 386 considered Gartner v Ernst & Young (No 3) [2003] FCA 1437 cited Melville v Craig Nowlan & Associates Pty Ltd (2002) 54 NSWLR 82 referred to Morris v Handley [2000] NSWSC 957 considered Oshlack v Richmond River Council (1998) 193 CLR 72 cited Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 cited Procon Ltd v Provincial Building Ltd [1984] 1 WLR 557 cited

THE AIRTOURER CO‑OPERATIVE LIMITED v MILLICER AIRCRAFT INDUSTRIES PTY LIMITED ACN 072 258 032 (Subject to Deed of Company Arrangement) AND MICHAEL JAMES HUMPHRIS AND LAURENCE ANDREW FITZGERALD in their capacity as Deed Administrators of Millicer Aircraft Industries Pty Limited ACN 072 258 032 (Subject to Deed of Company Arrangement) N 1599 of 2003 BRANSON J 1 NOVEMBER 2004 SYDNEY