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[1998] HCA 63
procedural. Apand’s application was to be dismissed with costs upon receipt of the Perres’ written communication of their undertakings, specifying that they would not dispose of their assets pending appeal...
2 cited instruments linked from this judgment.
This judgment concerns only Apand’s request for security for costs, not the final outcome of the Perres’ negligence appeal. The Perres could not provide the requested cash security. Gaudron J considered that their appeal raised an important legal question and that the interests of justice did not support preventing it from proceeding, particularly in light of the history of Apand’s unsuccessful factual challenges. The security application was to be dismissed with costs once the Perres gave written undertakings not to dispose of their assets and to prosecute the appeal promptly.
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1,786 words · generated 05/10/2026
This is an interlocutory ruling by Gaudron J about security for costs. It is not a decision of the High Court on the underlying question whether Apand owed the Perres a duty of care. The distinction matters: the reasons decide whether the Perres’ appeal should be shut out because they could not provide cash security, not whether they would ultimately succeed on their negligence claim.
The Perres grew potatoes in South Australia’s Riverland region and primarily sold them in Western Australia, where they said the wholesale price was stable and usually higher than elsewhere in Australia ([1]). At the relevant time, Western Australia’s entry condition excluded potatoes grown or packed within 20 kilometres of a bacterial wilt outbreak detected in the previous five years. A nearby experimental potato crop grown by the Sparnons, using seed potatoes supplied by Apand, was infected. The Perres’ crop was not itself affected, but the outbreak meant they could no longer sell their potatoes in Western Australia ([2]).
The Perres and the Sparnons brought proceedings against Apand and public authorities. At first instance, the Federal Court found that Apand was negligent towards the Sparnons, but that Apand owed no duty of care to the Perres, who had suffered economic loss only ([3]). The Full Federal Court dismissed both Apand’s appeal and the Perres’ appeal, and rejected Apand’s Notice of Contention ([4]).
The Perres obtained special leave to appeal to the High Court. Apand then applied for $50,000 cash security for costs, estimating its costs at $54,396, including costs related to its Notice of Contention ([5]). The evidence indicated that the Perres were unlikely to meet an adverse costs liability if unsuccessful and could not provide the requested cash security. They offered undertakings not to dispose of their assets, and to prosecute the appeal in a timely fashion ([6], [10]).
Gaudron J began with the Court’s general approach: appellants whose applications for special leave have been granted should not lightly be excluded from pursuing an appeal because of their financial position ([8]). The reasons cite Webster v Lampard, Devenish v Jewel Food Stores Pty Ltd and Merribee Pastoral Industries Pty Ltd in support of that approach.
That principle did not automatically resolve the application in the Perres’ favour. The judgment expressly cautions that the general approach does not mean an issue’s general importance overrides the interests of the parties. Instead, the question is whether the interests of justice would be served by shutting out the appeal ([8]). The reasons cite Lucas v Yorke for that inquiry.
Several circumstances informed Gaudron J’s assessment. First, the appeal raised what she described as “a precise legal question of considerable importance” ([9]). Second, Apand’s Notice of Contention challenged matters, including factual findings, that had twice been decided against it. Third, if those findings stood, some part of the Perres’ predicament would be referable to Apand’s actions, even if legal liability did not attach ([9]). The reasons also record the Perres’ contention that their financial position stemmed from Apand’s actions, while noting that a large part of their impecuniosity was attributable to costs orders in favour of the Minister and the State ([7]).
On that record, Gaudron J was not satisfied that the interests of justice supported preventing the appeal from proceeding ([9]). The result was not unconditional: the Perres had to communicate the precise terms of undertakings not to dispose of their assets pending appeal and to prosecute the appeal in a timely fashion ([10]). The Court dismissed the application with costs because those undertakings had been offered before Apand made its application ([10]).
The reasons describe an existing general approach rather than announcing a new legal test. Before applying that approach, Gaudron J noted that this Court did not lightly shut out appellants who had obtained special leave because of their financial position ([8]). The reasons support that proposition by citing Webster, Devenish and Merribee. They also refer to Lucas for the need to ask whether the interests of justice would be served by shutting out an appeal where a matter of general importance is involved ([8]).
The judgment’s contribution in this application is its explanation of how that approach was applied to the circumstances before the Court. Importance did not itself decide the application. The assessment also considered the inability to provide cash security, the effect of refusing to allow the appeal to proceed, the history of Apand’s unsuccessful challenges, and the offered undertakings ([6], [8]–[10]).
The text does not state that the Court changed, overruled or replaced any doctrine. Nor does it set out a comprehensive list of factors applicable to every security-for-costs application. The reasons make a case-specific assessment under the interests-of-justice inquiry and impose undertakings as a condition of dismissing Apand’s application ([9]–[10]).
The provided judgment contains no information about the later treatment of this ruling. Its citations to other decisions show the authorities Gaudron J relied on or referred to in stating the approach, but do not establish how subsequent courts applied Perre v Apand.
At [8], Gaudron J says that appellants who have obtained special leave “ought not lightly to be shut out because of their financial position.” In plain English, financial inability to provide security is not, by itself, treated in these reasons as an automatic bar to an appeal after special leave has been granted. The passage states a general approach, not a guarantee that security will never be ordered.
The next passage in [8] qualifies that approach: the importance of the legal issue cannot simply “override the interests of the parties.” Instead, the Court asks whether the interests of justice would be served by shutting out the appeal. Put simply, the issue’s importance matters, but the Court still weighs the circumstances of the particular application.
At [9], Gaudron J says she was “not satisfied that the interests of justice are served by shutting out the Perres’ appeal.” The stated reasons include the importance of the legal question, the fact that Apand’s challenged findings had twice gone against it, and the possibility that some part of the Perres’ predicament would be referable to Apand’s actions if those findings stood. The qualification “prima facie” reflects the fact that Apand had raised issues in its Notice of Contention.
At [10], Gaudron J says there was “no reason why those undertakings should not be given.” In context, this refers to the Perres’ offered undertakings not to dispose of their assets while the appeal was pending and to prosecute the appeal in a timely fashion. The application’s dismissal depended on their written communication of the precise terms, by the specified time. It was not a ruling that dispensed with the undertakings.
The ruling is most directly relevant to the kind of situation it addresses: an application for security for costs against appellants who have obtained special leave, are unable to provide cash security, and face a risk that requiring security would prevent the appeal from proceeding. The decision illustrates that the Court’s stated inquiry is whether the interests of justice would be served by shutting out the appeal ([8]–[9]).
Its factual setting also included a legal question Gaudron J considered precise and important, prior unsuccessful challenges by the respondent to factual findings, and proposed undertakings concerning preservation of assets and timely prosecution ([9]–[10]). Those circumstances formed part of the reasoning in this application. The judgment does not say that each is a necessary condition for refusing security, or that the same result follows whenever one or more are present.
The decision should not be read as resolving the underlying negligence claim or as establishing a general rule about economic-loss claims. Those matters appear in the account of the earlier proceedings and the background to the appeal ([2]–[4]). Gaudron J’s ruling addressed only the security application.
Nor does the judgment provide a complete framework for all applications for security for costs. It does not discuss every potentially relevant consideration, and the reasoning is confined to the issues raised in the application and the evidence described. A lawyer analysing a different application would need to check the applicable authorities and the particular procedural and factual context.
The provided reasons do not identify any later decisions considering or applying Perre v Apand. On this source alone, it is not possible to say whether later courts followed, distinguished, explained or limited the security-for-costs reasoning.
The cases named in the judgment are earlier authorities, not later treatment. Webster v Lampard, Devenish v Jewel Food Stores Pty Ltd and Merribee Pastoral Industries Pty Ltd are cited in connection with the general approach that an appellant granted special leave should not lightly be shut out because of financial circumstances ([8]). Lucas v Yorke is cited for the interests-of-justice inquiry where the appeal raises a matter of general importance ([8]).
Those citations establish the authorities referred to in these reasons. They do not, by themselves, establish the subsequent development or present status of the principles. That assessment would require later case law not included in the supplied judgment.
The reasons do not define what makes a legal question one of “considerable importance” for the purpose of this assessment. Gaudron J describes the question raised by the Perres’ appeal in those terms, but the supplied text does not reproduce or decide that underlying question ([9]).
The judgment also does not set out a comprehensive method for balancing the parties’ interests. It states that the interests of justice are the relevant inquiry, then identifies the circumstances that mattered in this application ([8]–[9]). It does not determine how different circumstances should be weighed in another case, such as one without prior rejected factual challenges or without undertakings.
The reasons do not explain in detail how the amount of security sought should be assessed against the respondent’s estimated costs. They record Apand’s request for $50,000 and its estimate of $54,396, but the decision turns on whether the appeal should be shut out and the undertakings offered, not on a detailed analysis of the calculation ([5], [9]–[10]).
Finally, this ruling leaves the substantive appeal undecided. It does not determine whether Apand owed the Perres a duty of care, whether the factual findings challenged in the Notice of Contention would stand, or what the ultimate disposition of the appeal would be. Those matters are described as issues for the appeal, not resolved by this security application ([4]–[5], [9]).
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GAUDRON J
FRANK PERRE & ORS APPELLANTS
AND
APAND PTY LTD RESPONDENT
Perre v Apand Pty Ltd (A27-1998) [1998] HCA 63
15 September 1998
ORDER
1. Respondent's application dismissed with costs on receipt of undertakings of appellants in the form specified in the reasons for judgment.
2. Certify for Counsel.
Application for security for costs.
Representation:
T A Gray QC with J S Roder for the appellants (instructed by Townsends)
M A Frayne for the respondent (instructed by Phillips Fox)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
GAUDRON J. The appellants are members of the Perre family or, in the case of the corporate appellants, companies associated with them. It is convenient to refer to them collectively as "the Perres". At the relevant time, the Perres grew potatoes in the Riverland region of South Australia. They sold them primarily in Western Australia where, they claim, the wholesale price was stable and, usually, higher than elsewhere in Australia.
At all relevant times, it was a condition of the entry of potatoes into Western Australia that they not be grown or packed within 20 kilometers of an outbreak of bacterial wilt detected in the previous five years. The property upon which the Perres grew their potatoes is situated near a property owned by members of the Sparnon family ("the Sparnons"). The Sparnons grew an experimental potato crop on that land using seed potatoes supplied by the respondent, Apand Pty Ltd ("Apand"). The crop was infected with bacterial wilt. The Perres' crop was not affected but they were no longer able to sell their potatoes in Western Australia. They claim that, in consequence, they suffered economic loss.
The Sparnons and the Perres commenced proceedings in negligence against Apand, the Minister of Primary Industries and the State of South Australia in the Federal Court of Australia1. The proceedings were heard together before von Doussa J. His Honour held that there was no negligence on the part of the Minister of Primary Industries or the State of South Australia but that the Sparnons were entitled to a verdict against Apand. However, his Honour found that Apand owed no duty of care to the Perres, who suffered economic loss only, because there was no relationship of proximity between them.
Apand appealed to the Full Court of the Federal Court from the decision and orders made against it in the Sparnon proceedings, challenging the finding of negligence and, also, various factual findings upon which that finding was based. The Perres appealed from the order dismissing their action. Apand filed a Notice of Contention in the appeal by the Perres, raising the same issues as in their appeal in the Sparnon matter. The appeals were heard together. In the result, neither appeal was successful and Apand failed on its Notice of Contention.
The Perres sought and were granted special leave to appeal to this Court from the order dismissing their appeal to the Full Federal Court. A Notice of Appeal has been filed and Apand has filed a Notice of Contention raising substantially the same matters as were raised in its appeal to the Full Court in the Sparnon matter. Apand has now applied to this Court seeking an order that the Perres provide cash security of $50,000 for the costs of the appeal. Apand estimates its costs at $54,396, an amount that includes the costs referable to the issues raised by its Notice of Contention.
The evidence indicates that, if they do not succeed in their appeal, it is unlikely that the Perres will be able to meet their liability for the costs of the proceedings below and in this Court. And it is not in issue that they cannot provide cash security in the sum of $50,000 or in any other sum. However, they have offered undertakings that they will not dispose of their assets, similar in terms to undertakings given in the Federal Court in support of a successful application by them to stay costs orders made in that court.
The Perres raise a number of matters in opposition to the order sought by Apand. It is necessary to mention only two. First, they claim that their impecuniosity stems from the actions of Apand for which they claim an entitlement to damages. That contention must be qualified to the extent that a large part of their impecuniosity is referable to costs orders made against them in favour of the Minister of Primary Industries and the State of South Australia. The second matter raised by the Perres, which is related to the first, is that, in the circumstances, it would be unjust if, because of their impecuniosity, they could not pursue their appeal.
The general approach of this Court in relation to the giving of security for costs is that "appellants who have persuaded the Court that their applications for special leave to appeal warrant a grant ought not lightly to be shut out because of their financial position."2 That is not to say that where, as here, the question for determination in the appeal is a matter of general importance, that consideration can "override the interests of the parties"3. Rather, it is necessary, in that situation, to ask whether the interests of justice will be served by shutting out the appeal4.
I am not satisfied that the interests of justice are served by shutting out the Perres' appeal. Their appeal raises a precise legal question of considerable importance. If they are correct in their contention, to shut out their appeal would, prima facie, at least, be to heap injustice upon injustice. I say "prima facie" because of the issues raised by the Notice of Contention. Those issues, which involve some factual findings, have twice been decided against Apand. And if the findings challenged by the Notice of Contention stand, some part of the plight of the Perres will be referable to Apand’s actions even if liability does not attach. In these circumstances, but subject to one matter, the application should be dismissed.
As already indicated, the Perres have offered undertakings not to dispose of their assets pending appeal. They have also offered an undertaking to prosecute the appeal in a timely fashion. There is no reason why those undertakings should not be given. Counsel for the Perres should inform the Registrar of the Court in writing of the precise terms of those undertakings and of the Perres' adherence to them on or before 4.00 pm Thursday, 17 September 1998. On receipt of that communication, an order will be made dismissing the application. And because the undertakings were proffered before the application was made, the application will be dismissed with costs.
There will be a certificate that this is an appropriate matter for the attendance of Counsel in Chambers.
The Perres also claimed damages against Apand under s 82 of the Trade Practices Act 1974 (Cth) for misleading and deceptive conduct under s 52 of that Act. ↩
Webster v Lampard (1993) 67 ALJR 393 at 394 per Toohey J; 112 ALR 174 at 176. See also Devenish v Jewel Food Stores Pty Ltd (1990) 64 ALJR 533 at 534 per Mason CJ; 94 ALR 664 at 666; Merribee Pastoral Industries Pty Ltd v Australia and New Zealand Banking Group Ltd (1998) 72 ALJR 1055 at 1062 per Kirby J; 155 ALR 1 at 10. ↩
Lucas v Yorke (1984) 58 ALJR 20 at 21 per Brennan J. ↩
Lucas v Yorke (1984) 58 ALJR 20 at 21 per Brennan J. ↩
Perre
Apand Pty Ltd [1998] HCA 63;
(1998) 157 ALR 433
(1998) 72 ALJR 1506
(1993) 67 ALJR 393
(1990) 64 ALJR 533
(1998) 72 ALJR 1055
(1984) 58 ALJR 20
Apand’s application was to be dismissed with costs upon receipt of the Perres’ written communication of their undertakings, specifying that they would not dispose of their assets pending appeal and would prosecute the appeal in a timely fashion. The communication was due by 4.00 pm on 17 September 1998. A certificate was granted that the matter was appropriate for the attendance of Counsel in Chambers ([10]–[11]).