Bou-Simon, Robert Anthony v Attorney-General of the Commonwealth of Australia & Anor [1998] FCA 1701

EX TEMPORE REASONS FOR JUDGMENT HIS HONOUR: For reasons which I gave on 8 September 1998, I dismissed an application brought against the Attorney-General of the Commonwealth and the Director of Public Prosecutions by Robert Anthony Bou-Simon ("the Appellant"). The Appellant has now filed notice of appeal from the orders which I made. The respondents to the appeal have applied for orders that the Appellant provide security for the costs of the appeal. The applications for security came before me as duty judge. However, none of the parties had any objection to my dealing with the applications notwithstanding that I dealt with the matter at first instance. Under Order 52 rule 20: Unless the Court or a Judge otherwise directs no security for costs of an appeal to the Court shall be required. The appellant is presently resident in France as appears from the findings which I made in my reasons of 8 September. The applications for security are based on the fact that the appellant is resident outside Australia and, so far as inquiries have indicated, has no assets in Australia. I have evidence before me that searches have been conducted of the real property indexes for New South Wales and of registers of securities. Those searches have indicated that the Appellant owns neither real property in New South Wales nor shares in any company. The Appellant has filed no evidence to indicate to the contrary. Accordingly, I consider that I am entitled to draw the inference that the Appellant has no assets in Australia and it is clear that he is resident outside Australia. Some reliance was placed on Order 28 rule 3(1)(a) which provides as follows: (1) Where, in any proceeding, it appears to the Court on the application of the respondent - (a) that an applicant is ordinarily resident outside Australia; the Court may order that applicant to give such security as the Court thinks fit for the costs of the respondent of and incidental to the proceeding. Order 28, however, is not exhaustive as to the powers of the Court and the Court has power under section 56 of the Federal Court of Australia Act 1976 (Cth) to order security in an appropriate case. The respondents rely on the general principle stated by Bowen LJ in Cowell v Taylor (1885) 31 Ch D 34, where his Lordship said (at 38): The general rule is that poverty is no bar to a litigant that, from time immemorial, has been the rule at common law, and also, I believe, in equity. There is an exception in the case of appeals, but there the appellant has had the benefit of a decision of one of Her Majesty's Courts, and so an insolvent party is not excluded from the Courts, but only prevented, if he cannot find security, from dragging his opponent from one Court to another. The same principle was applied by Hood J in the Supreme Court of Victoria in Bethune v Porteous (1892) 18 VLR 493, where his Honour said (at 494): The rule requiring security from a plaintiff being a foreigner resident abroad, is based on the ground that if a verdict be given against him, he is not within the reach of our law so as to have process served upon him for the costs… But that does not appear to me to be the foundation of the rule requiring costs from an appellant, because it is clear that he may be ordered to give security even when within the reach of our process. In my opinion the reason underlying the numerous and varying cases in which appellants have been ordered to give security will be found in the injustice to a successful litigant that may be caused if he be compelled to contest the matter for a second time without a probability of obtaining his costs if ultimately successful. No general rule can be laid down, as each case has to depend upon its own "special circumstances", but the foregoing principle has been frequently recognised as applying to appeals. In P.S. Chellaram & Co v China Ocean Shipping Co (1991) 65 ALJR 642, McHugh J, when dealing with an application for security for costs, said (at 643): To make or refuse to make an order for security for costs involves the exercise of a discretionary judgment. That means that the court exercising the discretion must weigh all the circumstances of the case. The weight to be given to any circumstance depends not only upon its own intrinsic persuasiveness but upon the impact of the other circumstances which have to be weighed. A circumstance which may have very great weight when only two or three circumstances have to be weighed may be of minor significance when many circumstances have to be weighed. However, for over 200 years, the fact that a party, bringing proceedings, is resident out of the jurisdiction and has no assets within the jurisdiction has been seen as a circumstance of great weight in determining whether an order for security for costs should be made. Indeed, for many years the practice has been to order such a party to provide security for costs unless that party can point to other circumstances which overcome the weight of the circumstance that that person is resident out of and has no assets within the jurisdiction. The rationale for ordering a party resident out of the jurisdiction to provide costs is the difficulty that would be experienced otherwise in enforcing an order for costs if one were made. I am satisfied that I have a discretion, one way or the other, to order the Appellant to provide security for costs in the circumstances of the present case. The historical basis for requiring a foreign plaintiff to give security for costs was that, in order to enforce a judgment, a defendant had to sue on the judgment in the foreign country where the foreign plaintiff resided and, having obtained a judgment in the foreign country, the defendant had to enforce that judgment (see Morling J in Barton v Minister for Foreign Affairs (1984) 2 FCR 463 at 469). Prima facie, a case has been made out for the provision of security in the circumstances of the present case. I would not regard the appeal as frivolous. However, having regard to the fact that I decided the matter at first instance, it is hardly appropriate that I express any view about the prospects of success other than to say that I accept that the appeal is not frivolous. Two matters have been advanced on behalf of the Appellant in resisting the orders sought in the notices of motion. The first is that it is inappropriate to compel a party to provide security for costs in circumstances where that party is, in effect, moving by way of defence of his rights. It was put that the proceedings which were brought by the Appellant were in response to the application of the DPP for extradition of the Appellant from France. The original proceedings were prompted by the conduct of the DPP in relation to the extradition application. I found that there were some unsatisfactory aspects of the conduct of the DPP in relation to that application although, as I have indicated, I did not consider that there were grounds for interfering with the process in France. That is relied on by the Appellant as a basis for advancing the proposition that these proceedings are really defensive in character. In Willey v Synan (1935) 54 CLR 175, the plaintiff, a member of the crew of a ship which arrived in Australia from New Zealand, claimed ownership of some silver coins which he had found on the ship. Customs officers took possession of the coins. The plaintiff claimed the coins and the Collector of Customs then gave notice under section 207 of the Customs Act 1901 (Cth) requiring the plaintiff to commence an action for their recovery. The effect of the Customs Act was that if such an action was not commenced within a particular period of time the goods would be deemed to be condemned without any further proceedings. The plaintiff issued a writ in the High Court against the Collector of Customs claiming return of the coins and damages for their detention. The defendant then sought an order for security for costs on the ground that the plaintiff was ordinarily resident outside Australia. Although a judge at first instance made the orders sought, the Full High Court upheld the plaintiff's appeal and concluded that the nature of the proceedings was such that the plaintiff was really a party attacked, not a party attacking, and therefore was substantially in the position of a defendant and should not be ordered to give security for costs. While such principles may well have been applicable to the application brought by the Appellant at first instance, I am not satisfied that they have any application when he has had his day in court and has had a reasoned judgment rejecting his application. He is now, in a separate proceeding, the moving party seeking the Full Court's intervention with the orders which were made at first instance rejecting his claim.