Plaintiff v Defendant

2 On 8 November 2025, Graincorp applied for orders that Green provide security for its costs of the proceeding to the conclusion of the initial trial in the amount of $600,000, or such other amount as the Court considers appropriate.

(a) Green, affirmed 17 November and 4 December 2025;

(b) Dominica Tannock, solicitor for Green, sworn 15 December 2025 and 27 January 2026;

(c) James Clarke, solicitor for Graincorp, sworn 8 November 2025; and

(d) Jessica White, solicitor for Graincorp, affirmed 24 November 2025.

4 The Court has power to order security for costs under its inherent jurisdiction and s 33ZF of the Supreme Court Act 1986 (Vic) ('Act').[1] The jurisdiction is unfettered.

5 A defendant bears the burden of persuading the Court that an order for security for costs should be made.[2]

6 Security for costs may be ordered to protect a defendant against the injustice of being sued by an impecunious plaintiff so as to preserve the primary purpose of an award of costs.[3] It is not in dispute that Green is relatively impecunious and will be unable to pay Graincorp's recoverable costs in the event that it successfully defends the claims made in the proceeding. Usually something more than a plaintiff's impecuniosity is required before security for costs will be ordered.[4] The jurisdiction to order security for costs may be enlivened in a group proceeding because there are persons other than the plaintiff who stand to benefit from the proceeding.[5]

7 In Matthews v SPI Electricity Pty Ltd (No 9), Derham AsJ summarised factors that may be relevant to the exercise of the discretion to order security for costs as follows:[6]

(a) Whether there is reason to believe that the applicants will be unable to pay the respondents' costs if so ordered, that is, whether the applicants are impecunious?

(b) Whether the applicants' insufficiency of means is caused by the conduct which is the foundation for the action?

(c) The promptness of the application and the stage of the proceedings at which an application for security is brought.

(d) Whether the proceeding has become bogged down with 'interminable and expensive interlocutory applications' for which the applicants bear responsibility?

(e) The strength and bona fides of the applicants' claim for relief from the respondents.

(f) Whether the applicants have been deliberately selected as 'persons of straw', in order to immunise from costs orders group members of substantial means?

(g) Whether the proceeding is essentially defensive in nature?

(h) Whether the applicants are suing for someone else's benefit?

(i) The characteristics of the group members. For example do they include corporations or natural persons, and are they rich or poor?

(j) Whether someone who stands to benefit from the litigation is funding the applicants?

(k) Whether security would have been ordered if separate actions had been brought by the group members?

(l) Whether an order for security would stifle the action and shut the applicants out from pursuing an arguable claim?

8 A plaintiff who asserts that a proceeding would be stultified because of the financial burden imposed by an order for security must establish the facts which make good that assertion.[7]

9 The proceeding was commenced by a generally indorsed writ filed on 1 December 2021 naming Green, his partner Samantha Sharpe and daughter Katie Green, as plaintiffs. The writ was served on 30 November 2022.

10 On 13 July 2023, John Dixon J ruled in favour of Green on an application to convert the proceeding to a group proceeding under pt 4A of the Act.[8]

11 On 9 July 2024, an order was made fixing the proceeding for trial on 6 October 2025 on an estimate of five weeks.

12 In late 2024, Green served subpoenas to give evidence at trial on the chief executive officer and chairman of Graincorp. In early 2025, Green applied to amend the statement of claim by adding a claim that emissions of an organic compound n-hexane from the Graincorp factory constituted a breach of s 25 of the EPA. In a ruling delivered on 4 April 2025, I granted Graincorp's application to set aside the subpoenas and dismissed Green's application to amend the statement of claim.[9]

13 Approximately $80,000 was raised by group members and other local residents to pay for legal expenses associated with the proceeding ('group member funds'). By 1 September 2025 the group member funds were exhausted. Tannock has agreed to pay disbursements on behalf of Green and group members to the completion of the initial trial.

14 On the evening of 30 September, Green served his written outline of opening submissions. The submissions were only signed by Tannock and not counsel.

15 Tannock appeared for Green at a case management hearing on 1 October. During the hearing, Tannock informed the Court 'there is currently an issue with counsel.'

16 On 6 October 2025, being the first day of trial, Tannock appeared for Green without counsel or an assisting solicitor. At the outset of the hearing, Tannock informed the Court that she had not been able to engage counsel for the trial, and that she intended to run the trial herself without assistance. The trial judge did not permit Tannock to conduct the trial on that basis because she was not satisfied that the interests of group members would be adequately protected.

17 The parties reached an in-principle agreement at a court-ordered mediation on 10 October 2025 but were ultimately unable to agree terms of settlement.

18 On about 28 October, Tannock borrowed $200,000 from her mother to fund necessary disbursements. The terms of the very simple loan agreement include interest payable at 10% per annum and that the loan principal and interest is 'due and payable on demand'.

19 The counsel team now representing Green appeared on his behalf at a case management hearing on 29 October. On that date, orders were made timetabling Graincorp's foreshadowed applications for costs wasted by reason of adjournment of the trial, and for security for costs.

20 On 17 November, an order was made relisting the trial on 31 March 2026 on an estimate of 20-25 days.

21 On 16 December, orders were made by consent resolving the costs wasted application by Graincorp on the basis that Tannock personally pay $100,000 for Graincorp's costs thrown away because of the adjournment of the trial on 6 October.

22 Green and his partner, who is a group member, earn modest income. Their only assets of substance are the property in which they reside in Numurkah that is worth about $270,000, and land in a small town on the Murray River that may be worth about $93,000.

23 Green and his partner contributed over $16,000 of the group member funds. The sum of $40,000 was contributed as a loan by a friend of Green who is not a group member.

24 Green said his savings and capacity to borrow has been exhausted and he cannot afford to pay significant further costs or to provide security for costs.

25 Green and Tannock contacted most of the 19 registered group members to ask whether they were in a position to contribute to security for costs. The responses by group members indicate they are a group with very modest financial means. Most said they had no capacity to contribute. One registered group member said he may be able to contribute up to $30,000, on the basis that he could sell a vehicle and a caravan. Another said that while he had some financial capacity, he was not willing to contribute.

26 In early 2024, Tannock contacted funder Litigation Capital Management Limited ('LCM') to apply for litigation funding to cover disbursements for the proceeding. The application was unsuccessful. The explanation given to Tannock was that in circumstances where Green was seeking an injunction as the primary remedy, LCM assessed the likely quantum of recoverable damages to be an unattractive investment. Tannock unsuccessfully approached LCM again in early 2025. Tannock said:

Based on my similar experience seeking litigation funding for plaintiffs in wind farm nuisance proceedings in the Supreme Court of Victoria, I considered that the principal remedy of an injunction would always be an obstacle to the plaintiff obtaining litigation funding notwithstanding the strengths of his case, so I did not apply elsewhere for litigation funding.

27 Tannock explained her position in relation to the costs of the proceeding as follows:

1. In addition to having worked on this case 'no win, no fee' since 2021, I have paid or contributed to the payment of the plaintiff's and group members' court fees, transcripts, advertisements, expert fees. I have paid so far about $180,000 in disbursements.
2. I expect to have to pay a further $115,000 in disbursements on behalf of the plaintiff and group members between now and the conclusion of the initial trial.
3. If I were required to pay an order for security for the defendant's costs, it would cause me personal and professional financial harm. I have already borrowed $200,000 from my mother in late-October 2025 to fund the trial. I have to repay that money to her.
4. In circumstances where I believe I have already assumed my paramount duty to the Court to further the administration of justice by giving access to justice to the plaintiff and group members at great personal expense, I am unwilling to sell any asset that I own (which I would have to do) to assist the plaintiff and group members pay any security for the defendant's costs.

28 Green and Tannock entered a costs agreement in August 2023 after the proceeding was converted to a group proceeding. The relevant features of the costs agreement are:

(a) Tannock's professional costs and counsel's fees are payable on the basis of a successful outcome, with an uplift of 25%;

(b) there was no third party funding arrangement covering any part of the costs of the proceeding; and

(c) Green was not protected against any adverse costs order in favour of Graincorp.

29 A further costs agreement was made between Green and Tannock in late 2025. Under the new agreement both professional fees and disbursements are charged on the condition of a successful outcome.

30 Clarke said Graincorp's costs of the proceeding up to November 2025 exceed $3.5 million. He estimated Graincorp's further costs to the end of the initial trial at about $1 million.

31 Clarke said, in his experience, costs recoverable on a standard basis were typically in the order of 60% of actual solicitor fees, 90% of actual counsel fees, and 100% of other disbursements. On that basis, he estimated that if Graincorp successfully defended the proceeding at the initial trial a costs order would entitle it to recover around $760,000 of the approximate $1 million that would be incurred defending the proceeding from November 2025 to completion of the initial trial.

32 The jurisdiction to order security for costs is clearly enlivened in circumstances where this is a representative proceeding brought by Green for the benefit of others and it is not in dispute that Green will be unable to pay Graincorp's recoverable costs if its defence succeeds.

33 Green's choice to convert the proceeding into a representative proceeding inevitably made it a more complex and costly piece of litigation to defend.

34 Unusually, there is no arrangement in place to protect Green from an adverse costs order, whether by indemnity either from Tannock or a litigation funder, or an after-event insurance policy. In those circumstances, Graincorp will be left with no ready way to recover legal costs if it succeeds in defending this lengthy and complex action.

35 The evidence suggests the funding position is precarious. The group member funds were exhausted in September 2025. The circumstances that resulted in Green not having counsel and the first trial needing to be adjourned are unexplained. Tannock has had to borrow from her mother to fund disbursements to the end of the preliminary trial. The amount borrowed may be insufficient. The loan and interest is due and payable on demand. There is a real risk that Graincorp will again be faced with spending money on preparing for a second trial that does not proceed.

36 The tipping point for Graincorp to make the security for costs application was the adjournment of the first trial and knowledge about the precarious way in which the proceeding is being funded for Green. Noting the highly unusual and significant circumstance that having prepared for and attended court to run the first trial which did not proceed because of circumstances in the control of Green and Tannock, Graincorp has not delayed in bringing this application.

37 Tannock is partially funding the proceeding for Green. She has agreed to pay disbursements until the end of the trial and will profit from a 25% uplift in her fees if the claim succeeds.[10] A court should be ready to order security for costs where a proceeding is being funded by a person whose sole interest is to make a commercial profit from its success.[11] Where a representative proceeding is being funded, it is highly unusual for a defendant not to be given some sort of comfort in relation to its costs.

38 Where a party has no realistic prospect of having to pay an adverse costs order but is being funded, whether wholly or in part by another person the usual dynamics of a proceeding can be distorted so as to create an asymmetry between the parties. This creates a circumstance where there is no check on Green or Tannock in respect of the manner in which they conduct the proceeding.

39 Green has 'bogged' the proceeding down by the unnecessary and unsuccessful attempts to subpoena senior officers of Graincorp and to amend his statement of claim at a late stage to introduce a new cause of action.[12]

40 The evidence relied on by Green is not sufficient to establish that the proceeding will be stultified if a security for costs order is made. Tannock does not say in her affidavit that an order for security would bring the proceeding to an end or that she would not be able to borrow more money to satisfy the order. Tannock's evidence that she has only contacted one litigation funder is not sufficient to establish that independent third party funding of the proceeding is not available.

41 There is no one standing behind Green in the litigation other than the group members. In circumstances where both Green and group members are impecunious it is possible that the power to grant security for costs is not enlivened.

42 This is a small class action. The massive increase in costs often associated with large class actions which favours security for costs is not a feature of this proceeding.

43 The fee uplift in the costs agreement is an arrangement specifically provided for by law. It is not correct to say that Tannock is a funder of the litigation simply because her fees are conditional on success and include an uplift. A security for costs order made in those circumstances would stultify litigation supported by a solicitor acting on a no win no fee basis to provide group members with access to justice.

44 Appropriate arrangements are in place to ensure the trial listed on 31 March can proceed. Tannock and trial counsel are committed to providing their legal services to the completion of the trial. Tannock is paying disbursements for Green and has the capacity to continue to do so. There is no risk of the trial not proceeding. The submissions by Graincorp suggesting otherwise are entirely speculative.

45 Green has accepted the responsibility of being lead plaintiff without any protection for an adverse costs order. As a consequence, he risks losing his assets. While that may not be sufficient to meet an adverse costs order in the event that he is unsuccessful in the proceeding, Green is not free riding in the litigation.

46 What is reasonable in terms of attempting to obtain commercial litigation funding for a proceeding will depend on all of the circumstances.[13] The response by LCM shows it did not entertain to any meaningful extent the possibility of funding the proceedings. Given the nature of the remedies sought in this case and the small size of the claimant group, it is simply not a realistic proposition that this proceeding would attract a commercial funder.

47 Delay by Graincorp in making the application is a significant factor weighing against exercise of the discretion to order security for costs. The features relied upon to justify a security for costs order have been present since 2023. At all times, Tannock has been acting on a no win no fee basis and Green has been relatively impecunious and unable to meet an adverse costs order. Graincorp has been compensated for adjournment of the first trial by the order that Tannock pay it $100,000 for costs wasted. In the circumstances, the adjournment loses relevance and is no justification for delay by Graincorp in bringing the security for costs application.

48 Green's evidence is that had he known he would be required to contribute towards security for costs in the amount of $600,000 as a condition of the case going forward he would not have continued with the proceeding. Green would not have spent his own time and money on the proceeding, borrowed money from his friend to fund the proceeding, or asked other group members to contribute had he known at the outset that there would be a requirement to pay security for costs. There would be a real unfairness in imposing a security order now when the opportunity to elect not to pursue the litigation has passed.

49 The significant delay by Graincorp in bringing the application is not justified by adjournment of the first trial. While the result of the adjournment is that Graincorp has to prepare for trial a second time, it has been compensated for the adjournment by the order that Tannock pay $100,000 to it for costs wasted. The amount of that costs order is significant given that the first trial barely commenced. As a result of the costs order, the risk to Graincorp that it might not be able to recover its costs of the second trial if Green's case is unsuccessful is materially the same as it was immediately before the first trial.

50 It was obvious early in the proceeding that Green would not be able to pay Graincorp's costs if the claims he made failed. Green gave the following unchallenged evidence on this application:

Since the proceeding commenced four years ago, I have spent a significant amount of time, money and emotional energy pursuing these proceedings. I would not have spent that time and money, or borrowed from my friend ..., or asked other group members to contribute to the expenses of the case, had I been required to pay security for costs at the outset in the amount sought by the defendant, because I would not have been able to pay those costs.

A security for costs order in the terms sought by Graincorp would cause Green significant prejudice if it were made at this late stage of the proceeding.[14]

51 I reject Graincorp's submission that the arrangements to fund the trial for Green and group members are unusual and precarious. The conditional fee agreements between Green and Tannock are not unusual. Nor is it unusual that from September 2025 Tannock agreed to pay disbursements because the group member funds were exhausted.

52 It is obvious that a solicitor's cashflow will be affected by acting on a conditional basis. In such circumstances, a solicitor might require a loan facility to fund their practice and make timely payment of disbursements. The fact that the loan facility organised by Tannock has been provided by her mother rather than a commercial lender is not significant to the determination of this application. Graincorp pointed to the fact the loan is repayable upon demand. A loan facility provided by a financial institution may include a similar condition. There is nothing to suggest that Tannock's mother will make a precipitous decision to call in the loan at a time that affects Green's ability to proceed with the trial, or that the loan that Tannock has obtained provides a less secure or certain basis for her conducting the proceeding than a commercial loan facility.

53 Counsel now briefed by Tannock have openly committed to conducting the trial for Green. I infer that Tannock is equally committed.

54 At the time of the first trial, the group member funds were recently exhausted, Tannock did not have a facility in place to fund disbursements and Green did not have counsel to conduct the trial. The arrangements now in place are far more secure and give greater certainty that the initial trial will proceed as scheduled.

55 The conditional fee agreements do not result in Tannock being 'a person whose interest is solely to make a commercial profit from funding the litigation'.[15] In Madgwick v Kelly, Allsop CJ and Middleton J endorsed the following comments made by the trial judge:[16]

[101] However I consider it a remarkable proposition that a lawyer acting under a conditional costs agreement is relevantly standing behind the litigation or is standing to benefit. I do not understand the position of a lawyer acting for an applicant in a class action to be any different from that of the lawyer for a plaintiff acting on a "no win-no fee" basis in the thousands of such individual cases conducted in many different Australian courts each year. Such arrangements are usually entered into because the plaintiff is unable to pay legal fees and disbursements as they are incurred. It would be remarkable if such claimants, already finding it difficult to meet the expense of litigation, were liable to pay security for costs because their barristers or solicitors were prepared to act on the basis that they are not paid unless the case is successful. This has never been the law in Australia.

...

[103] One would be surprised if the barristers and solicitors that provide legal services in class actions upon a conditional fee basis would not prefer to be paid at the time the services are provided, rather than having payment for such complex legal work conditional on success. Put another way, I do not accept that it is proper to characterise as a benefit, a payment ultimately made to a lawyer who has agreed that he or she is only entitled to be paid upon winning the case, and is required to wait perhaps years for payment of both legal fees incurred and disbursements advanced. In a class action context the fee uplift involved is little compensation for the risk of non-payment and delay in any payment. It should not militate as a factor in favour of an order of security for costs. There is also nothing in the authorities which indicates that a person that retains a lawyer under a conditional costs agreement should be in a worse position in relation to security for costs than a person who can afford to do so.

56 Green has no capacity to contribute to security for costs if ordered. Most of the registered group members are in the same position. The contribution of up to $30,000 contemplated by one group member is not meaningful in the context of the amount sought by Graincorp. The capacity of a further group to contribute is unclear. However, I accept Green's submission that in circumstances where that group member has no control over the litigation or influence over its course, and the amount of security may be wholly disproportionate to any benefit that group member stands to gain if the proceeding is successful, the unwillingness to contribute should be considered reasonable.[17]

57 Soft class closure orders were made for the purposes of mediation. It is unlikely that group members who chose not to register so that they could participate in a settlement achieved at mediation would now be willing to contribute to security for costs. I am satisfied that Green and the registered group members are not willing or able to make any meaningful contribution to any security for Graincorp's costs if ordered.

58 Tannock has a significant financial exposure to this proceeding, having funded a large amount of disbursements and borrowed $200,000 to ensure the remaining disbursements can be paid on behalf of the plaintiff and group members to the conclusion of the initial trial. Tannock's recovery of professional fees for the entire proceeding is conditional on success. I accept Tannock's evidence that she is unwilling to assist Green and group members to pay any amount that is ordered as security for Graincorp's costs. Tannock's unwillingness to contribute to security for costs is reasonable in circumstances where she is a sole practitioner and already runs the risk of recovering nothing at all from the proceeding.[18]

59 Tannock's approaches to LCM for funding assistance were rebuffed on both occasions in a manner that indicates that the funder did not seriously contemplate funding the proceeding. I accept Tannock's evidence that she has received a similar response in other cases where both injunctive relief and damages were being sought. There are good reasons why this proceeding may not be attractive to a litigation funder. The class is relatively small. A funder may consider the potential aggregate damages modest in proportion to the cost exposure that would come from funding the proceeding.

60 I conclude that the security for costs sought by Graincorp would be likely to stultify the proceeding and shut Green and the group members out of pursuing the claim, at least for the foreseeable future. Somewhat perversely an order made at this late stage would likely result in adjournment of the trial and further wasted costs.

61 I reject Graincorp's submission that Green has bogged the proceeding down with interlocutory applications. The only interlocutory ruling relied on by Graincorp to support this submission concerned the setting aside of subpoenas and dismissal to Green's application to amend the statement of claim. Determination of disputes did not cause delay. Green has not engaged in the sort of interlocutory disruption that would weigh in favour of a security for costs order being made.

62 The delay by Graincorp in bringing this application, the prejudice to Green and group members that would result from a security for costs order being made, and the likely consequence that the trial would be lost and the proceeding stultified are factors that weigh heavily against granting the orders sought. There is no factor that weighs heavily in Graincorp's favour.

63 For the above reasons the application will be dismissed. I will hear from the parties as to the appropriate form of orders.

[1] Matthews v SPI Electricity Pty Ltd (No 9) [2013] VSC 671, 30 [81] ('Matthews').

[4] Von Marburg v Aldred (No 3) [2017] VSC 146, 16 [41].

[6] Ibid 33-4 [94]; Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317, 374-5 [252] (Finklestein J, Branson J agreeing at 361-2 [214]); KP Cable Investments v Meltglow Pty Ltd [1995] FCA 76; (1995) 56 FCR 189, 197-8; Hall v Australian Finance Direct Ltd [2005] VSC 306.

[7] Livingspring Pty Ltd v Kliger Partners [2008] VSCA 93; (2008) 20 VR 377, 383-4 [22]; Madgwick v Kelly [2013] FCAFC 61; (2013) 212 FCR 1, 19-20 [81] ('Madgwick').

[8] Green & Ors v Graincorp Oilseeds Pty Ltd [2023] VSC 395.

[9] Green v Graincorp Oilseeds Pty Ltd (No 3) [2025] VSC 173 ('Green (No 3)').

[10] Shackles v The Broken Hill Pty Co Ltd [1996] VicRp 76; [1996] 2 VR 427, 430; General Trade Industries Pty Ltd (in liq) v AGL Energy Limited (No 2) [2023] FCA 556, 28 [90] ('General Trade Industries Pty Ltd (in liq)'); Kelley v MIS Funding (No 1) Pty Ltd [2012] FCA 1446; (2012) 300 ALR 675, 697 [101]-[103]; Madgwick (n 7) 13-4 [47].

[11] Green v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105, 120-1 [49]-[53] ('Green v CGU').

[13] General Trade Industries Pty Ltd (in liq) (n 10) 54 [175].

[15] Green v CGU (n 11) 120-1 [51].

[16] Madgwick (n 7) 12-4 [43]-[48].

[17] General Trade Industries Pty Ltd (in liq) (n 10) 18-9 [61], 23-4 [73].