//
[2024] QCA 161
General information, not legal advice.
respondent. Appeal dismissed with costs: [39]–[40]. The primary judge’s order for $110,000 security, with the proceeding stayed until security was provided, remained in place.
The Court of Appeal upheld the order requiring the appellant charity to provide $110,000 security for the respondents’ costs. It treated the matter as an appeal from an interlocutory discretionary decision, where appellate intervention is limited. The appellant had not shown that the judge made a specific error or that the order caused substantial injustice. The judge could consider the parties’ charitable status, the respondents’ existing legal costs, and the appellant’s difficulties producing a proper pleading. The judge did not have to decide the ultimate truth or legal character of the alleged publications at this stage. The appeal was dismissed with costs.
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2,300 words · generated 03/11/2026
Australian Anti Ice Campaign Pty Ltd (the appellant) and Alcohol and Drug Foundation Incorporated (the first respondent) were both registered charities operating in the anti-drug sector. The appellant used educators with lived experience of drug abuse in its educational workshops. The first respondent took a different view about the use of lived-experience educators in some settings. The dispute concerned publications on the first respondent’s website in September 2017. These included an article titled “Telling war stories is not good drug education”, published on 14 September, and a PowerPoint presentation and video published on 27 September [13]–[14].
1 cited instrument linked from this judgment.
The appellant alleged the publications made false representations about its programme, including that it was delivered to primary school students and consisted of presenters telling addiction stories. It also alleged that the publications said lived-experience presentations were ineffective or counterproductive and risked encouraging young people to use drugs [13]–[14]. Those were allegations, not findings made in this appeal.
The appellant filed proceedings in September 2022 and amended its pleading several times. It claimed injurious falsehood and misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law, together with injunctive relief and damages. Its pleaded damages included $2,320,634 for a claimed lost opportunity to expand its school workshop programme nationally, as well as other claimed losses [15]–[16].
In December 2023, a statement of claim was struck out with leave to replead. A costs order was made in the respondents’ favour and remained unpaid at the time of the security application [17]. The respondents later sought summary judgment or strike-out relief and an order for security for costs [18].
The primary judge ordered $110,000 security. The security had to be paid into court or provided in a form acceptable to the Registrar within three months, and the proceeding was stayed until it was provided [2]. The appeal did not challenge the finding that the relevant threshold in UCPR r 671(a) was met, or the form or amount of security [8]. Instead, the appellant argued that the judge had mishandled the merits, causation evidence, charitable status, and the risk that security would prevent the claim proceeding.
The Court of Appeal dismissed the appeal with costs [39]–[40]. The decision was therefore about the exercise and appellate review of a procedural discretion, not a final decision on whether the publications were false, misleading, or damaging.
The Court began with the rules governing security for costs. Rule 670 gives the court power, on a defendant’s application, to order security for costs. Rule 671 identifies circumstances in which such an order may be made, including where a corporate plaintiff may not be able to pay an adverse costs order, and where the justice of the case requires security. Rule 672 lists matters the court may consider, including the parties’ means, prospects, genuineness, possible oppression or stifling, public importance, enforceability, and costs [3]–[5].
The Court emphasised that the appeal concerned an interlocutory discretionary decision about practice and procedure. It applied the principle that an appellate court should be especially cautious about interfering with this kind of decision [10]–[11]. In this setting, the appellant needed to establish an identifiable error and substantial injustice. The Court found neither.
On the merits, the appellant argued that the primary judge should have made findings about whether the respondents’ conduct was in trade or commerce and misleading or deceptive. The Court rejected that submission. The judge was deciding interlocutory applications, not conducting a trial. Having declined to grant summary judgment, the primary judge was not satisfied that the appellant had no real prospect of success on all or part of its case. It followed that the security decision proceeded on the basis that the appellant had some prospects of success. But the judge did not have to decide disputed legal or factual questions finally at that stage [32]–[33].
On the appellant’s financial position, the Court held that the appellant had not produced evidence supporting its submission that the respondents’ conduct caused its impecuniosity. The appellant bore the onus of persuading the primary judge on that causal issue. The judge’s observation that the accounts appeared to show higher funds in 2023 than immediately before the 2017 publications did not change the absence of evidence connecting the respondents’ conduct to the appellant’s financial position [34]–[35].
The Court also rejected the challenge to the weight given to the first respondent’s status as a charity. It was open to the primary judge to consider the parties’ charitable purposes and whether litigation costs were diverting funds from those purposes. The respondents had already incurred more than $88,000 in legal costs, and much of that expenditure was connected to the appellant’s difficulty producing a proper statement of claim [23], [37]. The Court also referred to the unpaid costs order in favour of the respondents [17].
Finally, the primary judge had considered that security might stultify the appellant’s claim. The judge weighed that concern alongside the interests of both charities and the way the litigation had been conducted [30]–[31]. The Court found that the appellant had not shown that this balancing exercise was so unreasonable or plainly unjust that error should be inferred [38].
The judgment did not announce a new security-for-costs test. It applied the framework in UCPR rr 670–672 and existing principles governing appeals from discretionary decisions. Rule 670 confers the power to order security; r 671 sets out circumstances that permit such an order; and r 672 identifies matters that may inform the decision [3]–[5].
The Court adopted the view that the r 672 list is not exhaustive. It referred to the summary in Pearson v ING Bank (Australia) Ltd, including the proposition that the discretion is broad and the relevance and weight of factors can vary with the circumstances [12]. This means that a decision-maker is not confined to mechanically checking off the listed factors. The particular circumstances and their interaction matter.
For appellate review, the judgment applied House v The King and authorities requiring particular caution in appeals about interlocutory procedural decisions [10]–[11]. It stated that, generally, an appellant in this class of case must establish not only error but also substantial injustice [11]. The security order’s practical impact was relevant, but the possibility that it might stop the proceeding did not automatically establish appealable error [38].
The decision also clarifies what the court need not do when considering merits for a security application. The court may consider prospects without finally resolving the issues to be tried. Here, the refusal of summary judgment indicated that the claim had some prospect of success, but did not require the security judge to make final findings about the alleged representations [32]–[33].
The case-specific application is important. The appellant did not contest the r 671(a) threshold or the security amount. The judgment therefore does not decide how the court would have resolved those questions if they had been disputed. Nor does it establish that charitable status alone justifies security. The reasoning treated that status as one relevant consideration alongside the financial evidence, existing costs, pleading history, and interests of justice [8], [37], [41].
At [33], Flanagan JA said that a court considering prospects for security purposes “is not required to make any final determination on questions of law or fact, which are ultimately matters for trial.” In plain English, the security hearing was not the trial. The judge could take account of whether the claim appeared to have some prospect, without deciding whether the alleged representations were actually misleading or whether they caused the claimed losses.
At [34], the Court stated that “[t]he onus was on the appellant to persuade the primary judge that its impecuniosity was caused by the respondents’ conduct.” In plain English, the appellant needed evidence supporting that connection. The Court held that the material before the judge did not establish it.
At [35], the Court said the failure to discharge that onus was sufficient to dispose of two appeal grounds. The judge’s comparison of the accounts was not treated as an independent final finding about the cause of the appellant’s financial position. Rather, it was an observation made against the background of missing evidence on causation.
At [37], the Court explained why charitable status could be relevant. The primary judge was concerned that litigation expenditure might divert funds from the parties’ charitable purposes, and the first respondent had already incurred substantial legal costs. The Court also noted that the costs were largely associated with the appellant’s inability to produce a proper statement of claim. The reasoning does not mean that a charity automatically receives security, or that a charitable plaintiff is treated less favourably. It recognises charity-related matters as part of the overall discretionary assessment.
At [38], the Court concluded that the appellant had not shown that the exercise of discretion was “so unreasonable or plainly unjust” that error could be inferred. In plain English, the Court would not overturn the order simply because another decision-maker might have weighed the competing considerations differently. The appellant needed to demonstrate a reviewable error within the restrained approach applicable to this kind of appeal.
Brown JA’s separate observation at [41] was narrower. His Honour agreed that charitable status was relevant on the facts, particularly given uncertainty about whether the appellant could fund the litigation within its charitable purposes and the unpaid costs order. But he expressed doubt about the relevance of the effect on charity beneficiaries to the grant of security and did not decide that point.
The decision is most directly relevant where a corporate plaintiff appeals an interlocutory security-for-costs order made under Queensland’s UCPR, particularly where the appeal challenges how the primary judge weighed discretionary factors. It illustrates that an appellant must identify a recognised error, not simply contend that the judge should have given different weight to the evidence or circumstances [8]–[11], [38].
It is also relevant where a plaintiff says its financial position was caused by the defendant’s conduct. The case shows the importance, in this procedural context, of evidence capable of persuading the court of that causal connection. The judgment does not set out what evidence would be sufficient in another case; it holds only that the evidence here was insufficient [34]–[35].
The case may also be relevant where both parties are charities, or where a defendant charity says that defending litigation has consumed funds intended for its charitable purposes. The Court treated those circumstances as relevant, particularly in combination with significant costs already incurred, an unpaid costs order, and difficulties with the plaintiff’s pleadings [17], [23], [37], [41]. Charitable status was not stated to be decisive by itself.
Finally, it is relevant where the plaintiff argues that security would stifle its proceeding. The decision confirms that the risk of stifling is expressly listed in r 672, but shows that the court may balance it against other relevant circumstances. An appeal based on stifling still faces the applicable appellate restraint and requires a basis for finding error and substantial injustice [5], [30]–[31], [38].
The supplied judgment does not describe any later court’s treatment of Australian Anti Ice Campaign Pty Ltd v Alcohol And Drug Foundation Incorporated. It was delivered on 3 September 2024, and the text provided contains no subsequent decisions or commentary. It would therefore be unsupported to claim that later courts have followed, distinguished, or limited this decision.
The judgment does, however, explain how the Court of Appeal used earlier authorities. It applied the approach to appellate restraint discussed in Rigato Farms Pty Ltd v Ridolfi and Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd [10]–[11]. It considered the summary of security-for-costs principles in Pearson v ING Bank (Australia) Ltd [12]. It cited Base 1 Projects Pty Ltd v Islamic College of Brisbane Ltd on the onus concerning whether impecuniosity was caused by the defendant’s conduct [34], and cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd on the weight given to relevant considerations [37]. These relationships show the reasoning’s stated sources, but do not establish how subsequent courts have treated this case itself.
The decision does not determine the merits of the appellant’s substantive claims. It does not decide whether the publications were false, misleading or deceptive, whether they were made in trade or commerce, whether they caused loss, or whether the respondents acted with malice. Those matters remained for the underlying proceeding and were not resolved by the security appeal [16], [32]–[33].
The Court did not decide whether the appellant’s pleaded damages were recoverable, or whether the alleged lost commercial opportunities could be established. Nor did it make a final finding about the true value of the appellant’s barter or Qoin accounts. Those matters appeared in the background to the security application, but the appeal did not challenge the threshold finding or the amount ordered [8], [24]–[26].
There is also a question left expressly open by Brown JA: whether the effect of litigation on a charity’s beneficiaries is, by itself or in a particular setting, relevant to whether security should be ordered. Brown JA doubted that consideration’s relevance but found it unnecessary to decide the point [41]. The judgment therefore supports treating charitable status and related financial circumstances as relevant on its facts, but does not settle every boundary of that consideration.
The text also does not establish how the order affected the proceeding after the appeal, whether security was provided, or whether the underlying claim ultimately reached trial. Those outcomes cannot be inferred from the dismissal of the appeal.
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Australian Anti Ice Campaign Pty Ltd v Alcohol And Drug Foundation Incorporated [2024] QCA 161
PARTIES: AUSTRALIAN ANTI ICE CAMPAIGN PTY LTD / ACN 609 511 695 / (appellant) / v / ALCOHOL AND DRUG FOUNDATION INCORPORATED / ABN 66 057 731 192 / (first respondent) / GEOFFREY MUNRO / (second respondent)
FILE NO/S: Appeal No 5803 of 2024 / SC No 10711 of 2022
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Supreme Court at Brisbane – Unreported, 8 April 2024 (Bradley J)
DELIVERED ON: 3 September 2024
DELIVERED AT: Brisbane
HEARING DATE: 15 August 2024
JUDGES: Bond and Flanagan and Brown JJA
ORDER: The appeal is dismissed with costs.
CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SECURITY FOR COSTS – where the appellant was ordered to pay the respondents security for costs in the amount of $110,000 – where the appellant and first respondent were both charitable organisations – where the appellant was self-represented, and the first respondent had incurred significant legal costs in defending the proceedings, largely due to the appellant’s inability to produce appropriate pleadings – where the appellant contends that the learned primary judge gave too much weight to the status of the first respondent as a charity – where the appellant contends that the learned primary judge failed to have sufficient regard to the stultifying effect that the order would have on the appellant’s ability to conduct the proceedings, and the interests of justice generally – whether the learned primary judge, in making the order, had appropriate regard to these considerations / Uniform Civil Procedure Rules 1999 (Qld), r 670, r 671, r 672 / Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd (2021) 9 QR 141; [2021] QCA 198, applied / Base 1 Projects Pty Ltd v Islamic College of Brisbane Ltd [2012] QCA 114, cited / House v The King (1936) 55 CLR 499; [1936] HCA 40, cited / Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, cited / Pearson v ING Bank (Australia) Ltd (2023) 14 QR 170; [2023] QSC 86, considered / Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455; [2000] QCA 292, applied / Rozenblit v Vainer (2018) 262 CLR 478; [2018] HCA 23, cited
COUNSEL: The appellant appeared on its own behalf with G Ivers assisting / A L Low for the respondent
SOLICITORS: The appellant appeared on its own behalf / Moulis Legal for the respondents
BOND JA: I agree with the reasons for judgment of Flanagan JA and the order proposed by his Honour.
FLANAGAN JA: This is an appeal from orders requiring the appellant to provide security for the respondents’ costs of the proceedings in the amount of $110,000.00. The orders further provide that the security is to be paid into court or provided in a form acceptable to the Registrar within three months, and that the proceedings be stayed until security is provided.
The granting of these orders constituted an exercise of discretion by the learned primary judge under rr 670, 671 and 672 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). Rule 670(1) provides that on application by a defendant, the court may order the plaintiff to give the security the court considers appropriate for the defendant’s costs of and incidental to the proceeding. Rule 670(2) provides that r 670(1) is made subject to the provisions of the UCPR, particularly rr 671 and 672.
Rule 671 relevantly provides that the court may order a plaintiff to give security for costs only if the court is satisfied that:
“(a)the plaintiff is a corporation and there is reason to believe the plaintiff will not be able to pay the defendant’s costs if ordered to pay them; or
…
(h)the justice of the case requires the making of the order.”
The respondents’ application for security expressly relied on r 671(a) and (h).
“In deciding whether to make an order, the court may have regard to any of the following matters—
(a)the means of those standing behind the proceeding;
(b)the prospects of success or merits of the proceeding;
(c)the genuineness of the proceeding;
(d)for rule 671(a)—the impecuniosity of a corporation;
(e)whether the plaintiff’s impecuniosity is attributable to the defendant’s conduct;
(f)whether the plaintiff is effectively in the position of a defendant;
(g)whether an order for security for costs would be oppressive;
(h)whether an order for security for costs would stifle the proceeding;
(i)whether the proceeding involves a matter of public importance;
(j)whether there has been an admission or payment into court;
(k)whether delay by the plaintiff in starting the proceeding has prejudiced the defendant;
(l)whether an order for costs made against the plaintiff would be enforceable within the jurisdiction;
(m)the costs of the proceeding.”
The notice of appeal does not contain any numbered grounds of appeal. An analysis of the notice of appeal, the appellant’s written submissions and its oral submissions, reveals that the appellant contends the primary judge committed five errors; namely, that his Honour:failed to take into account or give sufficient weight to whether the respondents’ conduct was in trade or commerce (Ground 1); failed to take into account or give sufficient weight to the appellant’s submissions before the primary judge that the appellant had demonstrated high prospects of success for its claim in misleading and deceptive conduct (Ground 2); found that there was no evidence to support a finding that the appellant’s financial position was the result of conduct engaged in by the respondents (Ground 3); found that the appellant’s 30 June 2023 financial statement recorded higher funds being available to the appellant than was the case as at 30 September 2017, which was immediately before the publications upon which the appellant grounds its claim (Ground 4); gave considerable weight to the fact that the first respondent is a charity (Ground 5).
While not specifically stated in the notice of appeal, the appellant’s overarching complaint is that the primary judge erred by ordering security because it has the effect of stultifying the proceedings, which gives rise to a substantial injustice. The making of the order was therefore so unreasonable or plainly unjust that this Court may infer error.
None of these grounds seek to challenge the finding that the prerequisite for security for costs in r 671(a) was satisfied. Nor is there any challenge to the form or amount of security ordered.
For the reasons which follow, the appellant has failed to establish any specific error. Further, even though the order for security may stultify the proceedings, the appellant has failed to establish that the order gives rise to a substantial injustice.
The appellant accepts that this is an appeal from an exercise of discretion, and it must therefore demonstrate the kind of error identified in House v The King.1 Further, given this is an appeal from an interlocutory exercise of discretion in a matter relating to practice and procedure, it calls for an even greater exercise of appellate restraint. As observed by de Jersey CJ in Rigato Farms Pty Ltd v Ridolfi:
“… appeal courts should be especially circumspect about interfering with decisions on matters of practice and procedure. As put by the High Court … ‘particular caution’ must be exercised. The constraints confirmed in House v. The King are real constraints, to be respected not perfunctorily discarded, and they are especially powerful, in limiting an appellate court, in a case of this character.”2
(citations omitted)
“In appeals from an exercise of judicial discretion in an interlocutory decision concerning questions of practice and procedure, although there is no absolute rule and each case must be considered in light of its own particular circumstances, generally an appellate court will not interfere unless, in addition to error of principle, the appellant demonstrates that the order will work a substantial injustice to one of the parties…”4
(citations omitted)
“[39]Rule 670(1) confers a discretion in broad terms to order that a plaintiff give security the Court considers appropriate for a defendant’s costs.
[40]Rule 670(2) provides that the discretion must be exercised subject to the provisions of the UCPR, particularly rr 671 and 672. Further, the discretion must be exercised in the way which best suits the interests of justice in the particular circumstances and with the obligations set out in r 5 kept firmly in mind.6
[41]Rule 671 sets out eight circumstances which enliven the Court’s jurisdiction to order security for costs under the UCPR. As already noted, ING submitted that the prerequisite for security for costs stated in r 671(h) is established in the present circumstances: that the Court should be satisfied that ‘the justice of the case requires the making of the order’.
[42]Rule 672 sets out various matters to which the Court may have regard in deciding whether to exercise the discretion to make an order for security for costs. These discretionary factors are also relevant to the Court’s consideration whether the prerequisite for security for costs stated in r 671(h) is established.7
[43]The matters stated in r 671 and the discretionary considerations stated in r 672 also provide guidance about matters which may be relevant to the exercise of the Court’s inherent jurisdiction.8
[44]However, these are not exhaustive of the factors that may be considered in deciding whether to order security for costs pursuant to either r 670 or the Court’s inherent jurisdiction.9 The discretion to order security for costs is unfettered. The factors relevant to the exercise of the discretion will vary from case to case and the weight to be given to any circumstances depends upon its own intrinsic persuasiveness and its impact upon other circumstances which must be weighed.10”
(citations in original)
Relevant background
The appellant and the first respondent are both registered charities which operate in the anti-drug industry. The appellant’s charitable purpose is to reduce the use of methamphetamine in the Australian population, including by means of educational workshops in high schools, prisons, youth justice and workplace settings. These workshops are presented by people with lived experience of drug abuse. In this respect, the appellant was established as a charity by its Chief Executive Officer, who herself has recovered from a two-year methamphetamine addiction. The first respondent has taken a different approach and does not support the use of lived experience educators being used in particular settings. The first respondent’s differing approach was the subject of a published article on its website on 14 September 2017 concerning the appellant and its school workshops. The article was entitled “Telling war stories is not good drug education”. According to the appellant, the website article contained a number of false representations, including that the appellant’s anti-drug program is delivered to primary school students and involves presenters simply telling their story of addiction. The article further asserted that the use of presenters who have recovered from drug addiction has been proven to be ineffective or counterproductive, and that it carries the risk of encouraging young people to engage with drugs.
On 27 September 2017, the first respondent published a PowerPoint presentation on its website entitled “Drug education in schools: best practice and the role of [Local Drug Action Teams]”. The appellant alleges that this PowerPoint presentation also contained false statements. On the same date, 27 September 2017, the first respondent also published a video presentation on its website entitled “Drug education in schools: Best practice and the role of LDATs’”. The appellant alleges that this video presentation also contained false representations.
On 7 September 2022, the appellant filed a claim and statement of claim. An amended statement of claim was filed on 9 March 2023, a further amended statement of claim was filed on 9 June 2023, a second further amended statement of claim was filed on 12 June 2023 and a third further amended statement of claim was filed on 1 February 2024. Prior to the hearing of the application before the primary judge, the appellant, under cover of a r 445 letter dated 6 March 2024, provided another proposed further amended statement of claim.
The appellant seeks declarations that the first respondent’s publications constitute injurious falsehood and are misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the Australian Consumer Law. The pleading further alleges that the respondents acted with malice in making the publications. Injunctive relief is also sought. The appellant seeks damages pursuant to s 236 of the Australian Consumer Law or under common law in the amount of $2,320,634.00 for loss of a valuable commercial opportunity to expand its school workshop program nationally, as well as a loss of revenue of $130,000.00 from various institutions together with $185,000.00 for the loss of a valuable commercial opportunity to work with LDATs.
The primary judge’s ex tempore reasons
“It is plain to me that some of those representations, as pleaded, would appear, even at first glance, to be highly damaging about the person about whom they are written or spoken.”13
His Honour also considered that the consequential damage would “seem almost obvious”.14
His Honour noted that the various versions of the statement of claim, rather than supporting an inference that the appellant is incapable of pleading its case, was more readily explicable by the fact that the appellant is not legally represented. Both before the primary judge and this Court, Mr Ivers was granted leave to appear for the appellant without objection. At various times he has been an employee of the appellant or a volunteer. This is to be contrasted with the position of the respondents, who are legally represented. The second respondent is an employee of the first respondent.
As to the strikeout application concerning various paragraphs of the third further amended statement of claim filed on 1 February 2024, his Honour noted that in the appellant’s r 445 letter (in response to the respondents r 444 letter), a further pleading had been provided. As no r 444 letter had been sent in relation to the proposed pleading, his Honour did not deal further with the strikeout application.
As to the application for security for costs, his Honour observed that in the course of argument he had raised with each party his concern that by engaging in litigation, resources were being diverted from each parties’ charitable objects and purposes. This observation was made by his Honour in the context of encouraging both parties to specifically consider whether the litigation was within the terms of their charitable objects and purposes.15
His Honour referred to evidence showing that the respondents had incurred in excess of $88,000.00 in legal fees over a period of approximately two years. This was in circumstances where the appellant had not provided a pleading which would permit the matter to proceed to a hearing. The $88,000.00 in legal fees included an estimate of the costs that could be assessed on the ordinary basis of $53,000.00 in relation to the costs order made by Freeburn J on 11 December 2023.
The primary judge proceeded on the basis that, in accordance with r 671(a), the appellant is a corporation and there was reason to believe that it would not be able to pay the respondents’ costs if ordered to pay them. In this respect, his Honour made reference to the appellant’s financial statements dated 5 February 2024, which disclosed that the appellant had retained equity of about $160,000.00. Its income during the financial year ending 30 June 2023 was $226,000.00 and its expenditure over that period was approximately $190,000.00.
His Honour noted Mr Ivers’ submission that much of the retained funds of the appellant are represented by a B2B Barter account with a balance of $58,000.00 and a Qoin account with a balance of about $96,500.00 (noting that there was some uncertainty about the true value of the Qoin account balance). His Honour further noted Mr Ivers’ statement that the appellant planned to raise a fighting fund for the purposes of meeting its own costs in conducting the litigation. As correctly noted by the primary judge, this was not a basis on which a security for costs application could be determined.
“There is no evidence before the Court to that effect. As I understood the financial statements, they indicate the position of the plaintiff has been, to some extent, improving in the 30 June 2023 accounts over those that are reported for 30 June 2022. And both figures record much higher funds being available to the plaintiff than was the case at 30 September 2017, immediately before the publications upon which the plaintiff grounds its claim.”17
His Honour considered that it was in the interests of justice that the first respondent, as a charity, “should not be exposed to incurring further [legal] costs that divert it from its charitable purposes without at least some security that it might recover those costs should it be successful.”18
His Honour gave specific consideration to the risk that ordering security for costs might stifle the appellant’s ability to proceed with its action to trial. His Honour noted, however, that:
“In the broader context of the relationships between the parties to the proceeding, it seems to me that balancing the interest of those who ought to benefit from the activities of two charities, that the ordering of security might at least cause the parties to reflect upon whether the manner in which this litigation has been commenced and conducted on both sides should continue.”19
No error has been established requiring interference with the primary judge’s exercise of discretion
The errors sought to be established by the appellant in relation to Grounds 1 and 2 all constitute an alleged failure on the part of the primary judge to make specific findings that the conduct of the respondents was in trade or commerce and constituted conduct that was misleading or deceptive or likely to mislead or deceive. The asserted errors are misconceived. The primary judge was dealing with an interlocutory application in a proceeding. His Honour was not required, nor would it have been appropriate, to make such findings at an interlocutory stage.
One of the discretionary factors for security for costs stated in r 672(b) is that the court may have regard to the prospects of success or merits of the proceeding. Having refused the application for summary judgment pursuant to r 293, his Honour was not satisfied that the appellant had no real prospect of succeeding on all or part of its claim. Further, his Honour was not satisfied that there was no need for a trial of the claim or at least part of the claim. It follows that in granting the application for security for costs, his Honour proceeded on the basis that the appellant had some prospects of succeeding on all or part of its claim. A court, in having regard to the prospects of success or merits of the proceeding in deciding an application for security for costs, is not required to make any final determination on questions of law or fact, which are ultimately matters for trial.
As to Grounds 3 and 4, the primary judge correctly identified that there was no evidence which supported the appellant’s submission that its financial position was the result of the respondent’s conduct. The onus was on the appellant to persuade the primary judge that its impecuniosity was caused by the respondents’ conduct.20
The fact that the appellant did not discharge this onus with appropriate evidence is sufficient to dispose of Grounds 3 and 4. His Honour’s reference to the appellant’s financial statements suggesting an improvement from 30 September 2017 to 30 June 2023 was merely an observation that, in the absence of any evidence that the respondents’ conduct caused the appellant’s impecuniosity, the appellant’s own accounts appeared to suggest otherwise. The appellant’s complaint that his Honour erred in this regard does not alter the appellant’s failure to discharge its onus.
As to Ground 5, the appellant asserts that the primary judge should not have given any special consideration to the first respondent’s position as a charity in circumstances where it “has been shown to have made false, misleading and damaging public statements about another corporation”.21 This submission cannot be accepted.
“Litigation is sufficiently stressful and expensive for all concerned without the unnecessary aggravations of additional cost, stress, distraction and delay occasioned by inefficiency, incompetence or sheer disregard of the rules. To the extent that the contention advanced on behalf of [the plaintiff] reflects an assumption that inefficiently or incompetently conducted litigation, and the waste in terms of time and money inflicted upon the other party or parties, is nevertheless consistent with the promotion of access to justice because the end may ultimately justify the means, that assumption must be rejected. Inefficient or incompetent conduct of litigation may cause injustice even if it is not intended to do so. Litigation that is conducted inefficiently, incompetently or in disregard of the rules by one party is no less oppressive to the other party because it is not intended to be oppressive. And it is no less oppressive because the litigant who engages in such conduct is impecunious.”23
Disposition
The appeal should be dismissed with costs.
BROWN JA: I agree with the reasons of Flanagan JA and agree that the appeal should be dismissed with costs. I just wish to add one matter in relation to the consideration of the charitable status of the appellant and first respondent.
As Flanagan JA has stated in his judgment, the matters to which the Court may have regard under r 672 of the Uniform Civil Procedure Rules 1999 are not exhaustive and the learned primary judge did not err in considering the charitable status of the parties. I agree that it was a relevant consideration in this case given that there was a clear question as to whether the appellant could properly fund the litigation within its charitable objects, thus potentially increasing the risk that the appellant could not meet any costs order made against it if unsuccessful. This is particularly so given that the first respondent had a costs order already in its favour which was unpaid. While I have some doubt as to the relevance of the effect of the litigation on those who ought to benefit from the activities of the charity in terms of the grant of security, it is unnecessary for me to reach any concluded view in that regard. That consideration should in any event be a matter considered by any charity before they venture down the path of litigation. The first respondent had incurred significant legal costs in defending the matter, where a large proportion of those costs had been incurred in seeking to ensure that the appellant delivered a proper statement of claim and the first respondent’s avenues for meeting legal costs are potentially constrained by its charitable status. That matter was, as Flanagan JA observes, relevant to the primary judge’s considerations and what the interests of justice required in this case.
(1936) 55 CLR 499, 504–505. ↩
[2001] 2 Qd R 455, [23]. ↩
(2021) 9 QR 141 (Fraser JA and Wilson J agreeing) at [12]–[14] (“Adeva”). ↩
Adeva, [13]. ↩
(2023) 14 QR 170. ↩
Equititrust Ltd v Tucker [2020] QSC 269, [42]. ↩
Robson v Robson [2008] QCA 36, [32]–[33], [36] and [61] (Robson). ↩
Mbuzi v Hall [2010] QSC 359, [57] (Mbuzi). ↩
Ibid. ↩
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189, 196-197 citing Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) 8 ACSR 405, 415. ↩
Affidavit of Emily Jane Jennings, filed 19 March 2024, para 15(b). ↩
Affidavit of Emily Jane Jennings, filed 19 March 2024, para 43. ↩
Australian Anti Ice Campaign Pty Ltd
Alcohol And Drug Foundation Incorporated [2024] QCA 161
(1936) 55 CLR 499
(1986) 162 CLR 24
(2018) 262 CLR 478
(1995) 56 FCR 189
Appeal dismissed with costs: [39]–[40]. The primary judge’s order for $110,000 security, with the proceeding stayed until security was provided, remained in place.
On 11 December 2023, Freeburn J ordered that the second further amended statement of claim filed on 12 June 2023 be struck out in its entirety with leave to replead. A costs order was made in favour of the respondents for costs thrown away as a result of the further amended statements of claim filed on 9 and 12 June 2023.11 This costs order remains unsatisfied by the appellant.12
On 19 March 2024, the respondents filed an application seeking summary judgment pursuant to r 293 or, alternatively, that certain paragraphs of the third further amended statement of claim filed on 1 February 2024 be struck out and an order for security for costs.
Before his Honour there was evidence from the respondents’ solicitors (which was unchallenged) that the likely costs the respondents would incur if the matter were to proceed to trial was in the range of $110,000.00 to $192,000.00.
His Honour considered that it would be unsatisfactory that a charity, in the position of the first respondent, “would be put in a position where, in order to defend itself, it would incur costs of that order and not have any reliable means on which to recover any part of those costs should it be successful in a Defence.”16
As to the appellant’s submission before the primary judge that its present financial position was the result of the conduct engaged by the respondents, his Honour observed:
First, it was a matter for the primary judge as to what weight should be given to this consideration.22 Secondly, it was not established, in the context of an interlocutory application, that the first respondent had engaged in misleading or deceptive conduct, nor was it established that such alleged misleading or deceptive conduct had caused damage to the appellant. At the time of the hearing of the interlocutory application before the primary judge, the appellant had not yet been able to plead a proper case. Thirdly, his Honour made reference to both the appellant and the first respondent being charitable organisations. His Honour’s concern was that monies being expended in relation to the litigation did not further the charitable objects and purposes of each party’s charity. It was in this context that his Honour considered that it was in the interests of justice that the first respondent should not be exposed to incurring legal costs that diverted funds from its charitable purposes without the appellant providing security. These concerns identified by the primary judge were appropriate considerations. As already observed, the discretionary factors listed in r 672 are not exhaustive. Fourthly, the fact that the first respondent is a charity was a relevant consideration in circumstances where it had already incurred $88,000.00 in legal costs. These costs were primarily incurred because of the appellant’s inability to produce a proper statement of claim. As observed by Keane J in Rozenblit v Vainer:
RB, Book 1, page 6, lines 31–33. ↩
RB, Book 1, page 6, line 42. ↩
RB, Book 1, page 8, lines 17–28. ↩
RB, Book 1, page 9, lines 36–38. ↩
RB, Book 1, page 9, lines 40–46. ↩
RB, Book 1, page 10, lines 8–11. ↩
RB, Book 1, page 10, lines 23–29. ↩
Base 1 Projects Pty Ltd v Islamic College of Brisbane Ltd [2012] QCA 114 at [26]. ↩
Appellant’s Amended Outline of Argument, [54]. ↩
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41–42 (per Mason J). ↩
(2018) 262 CLR 478, 491–492 [42]. ↩