Soh v Commonwealth of Australia

REASONS FOR JUDGMENT 1 These reasons concern an application by Mr Soh for an extension of time and leave to appeal against orders of Moore J made on 14 October 2008 requiring Mr Soh to provide security for costs in a form acceptable to the Commonwealth in an amount of $30,000 by 4.00 pm on 14 December 2008, and a consequential order that if the applicant did not comply then the proceedings should be dismissed. 2 Mr Soh is a citizen and resident of Korea who commenced proceedings for damages against the Commonwealth of Australia and the State of New South Wales in 2003 for time which he alleges was wrongly spent in immigration detention and in New South Wales Correctional facilities. 3 On 18 April 2008 this application by Mr Soh was dismissed by Madgwick J: see Soh v Commonwealth of Australia [2008] FCA 520, where his Honour has set out the history of the application and the issues involved. There is no need to repeat those matters in these reasons. 4 Mr Soh then filed a Notice of Appeal on 15 May 2008 from the orders of Madgwick J and on 28 May 2008 sought an extension of time to file the Notice of Appeal. 5 The Commonwealth then filed an application for an order requiring security for costs from Mr Soh on the ground that he was (i) impecunious, (ii) resides in Korea, (iii) has no assets in Australia, and (iv) his appeal had no real prospect of success. The Commonwealth pointed out in submissions before Moore J that it had already spent in excess of $210,000 in successfully defending the claim by Mr Soh, the costs of which had not been recovered, and it was estimated the predicted costs of defending the appeal would be $30,000. This amount was the security ordered by Moore J on 14 October 2008, to be paid on or before 14 December 2008, and in default of which the appeal would be dismissed. 6 It is important to note that the decision of Moore J in relation to security for costs was an interlocutory decision and that consequently leave must be obtained, and also that the current application was out of time so that an extension of time is required. Leave will normally be granted if it can be shown that the decision below is attended by sufficient doubt to warrant reconsideration or where substantial injustice would be caused if leave is refused: see Décor Corp Pty Ltd v Dart Industries Pty Ltd (1991) 33 FCR 397 at 398-400. In addition, the order in relation to security for costs was a discretionary judgment which on accepted principles will not be varied unless it is shown that exercise of that discretion was miscarried for specific reasons, or more generally that the decision is outside the limits of what could be considered to be sound discretionary judgment: see House v R (1936) 55 CLR 499 at 504-5. The Court in that case identified the general types of error which must be shown, namely; that the primary Judge acted upon a wrong principle, took account of extraneous or irrelevant matters, was mistaken as to material facts, or where some material consideration was not taken into account. In addition, the application relating to an appeal on questions of practice and procedure enlivens the principles in Adam P Brown Male Fashions Pty Ltd v Phillip Morris Incorporated (1981) 148 CLR 170, namely that in such a case an appellate court will exercise particular caution in reviewing challenged decisions. These principles must be applied when considering the application in this case.