Von Schoeler v Allen Taylor and Co trading as Boral Timber

1. The first respondent's application for security for costs is dismissed.
2. Costs are reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 The appellant has appealed against orders of the Federal Circuit Court of Australia made on 7 February 2019 dismissing, in part, her application alleging contraventions of the Sex Discrimination Act 1984 (Cth). 2 The application presently before the Court is by the first respondent for an order that the appellant provide security for the costs of the appeal. The application is brought pursuant to s 56 of the Federal Court of Australia Act 1976 (Cth) (the Act) and r 36.09 of the Federal Court Rules 2011 (Cth) (the Rules). 3 Section 56 of the Act provides relevantly: 56 Security (1) The Court or a Judge may order an applicant in a proceeding in the Court, or an appellant in an appeal under Division 2 of Part III, to give security for the payment of costs that may be awarded against him or her. (2) The security shall be of such amount, and given at such time and in such manner and form, as the Court or Judge directs. … (5) This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the furnishing of security. 4 Rule 36.09 of the Rules provides relevantly: 36.09 Security for costs of appeal (1) A party may apply to the Court for an order that: (a) the appellant give security for the costs of the appeal, and for the manner, time and terms for giving the security; and (b) the appeal be stayed until security is given; and (c) if the appellant fails to comply with the order to provide security within the time specified in the order - the appeal be stayed or dismissed. 5 The Court has a broad discretion as to whether to order security for costs. The factors relevant to the exercise of the discretion include: (1) The appellant's prospect of success. (2) The extent of the risk that a costs order will not be satisfied. (3) Whether the making of a costs order would be oppressive in that it would stifle a reasonably arguable claim. (4) Whether any impecuniosity of the appellant arises out of conduct alleged against the respondent. (5) Whether there are aspects of public interest which weigh in the balance against such an order. (6) Whether there are particular discretionary matters peculiar to the circumstances of the case. (7) The timing of the application, in that it should be brought promptly. [See, for example, Equity Access Limited v Westpac Banking Corporation (1989) ATPR 40-972 at 636); Madgwick v Kelly (2013) 212 FCR 1 at [7]; Dye v Commonwealth Securities Ltd [2012] FCA 992 at [26]; Craven v Ready Flowers Pty Ltd [2014] FCA 693 at [15]]. 6 The significance of any particular factor will depend upon the circumstances of the case and the way it is argued: Commissioner of Taxation v Vasiliades (2014) 323 ALR 59; [2016] FCAFC 170 at [90]. The issue that lies at the heart of the exercise of the discretion is fairness: Madgwick v Kelly at [92]. 7 In this case, I consider the factors of particular importance to be the risk that the appellant would not pay any costs awarded in favour of the first respondent, the appellant's prospects of success in the appeal, and whether the appellant's impecuniosity would stifle any reasonably arguable appeal if security for costs were ordered. 8 The evidence indicates that the appellant is impecunious. She has not paid the costs of the proceedings before the Federal Circuit Court. I accept that there is no realistic prospect that she would pay the respondents' costs of the appeal in the event that an order for those costs is made against her. The first respondent has estimated its costs of the appeal at about $30,000 on a party-and-party basis. I accept that even if the first respondent succeeds in the appeal, it will be out-of-pocket to at least that extent in the absence of security for costs being ordered. 9 The parties have made extensive submissions about the appellant's prospects of success in the appeal. The first respondent submits that her prospects are negligible, while the appellant submits that her prospects are very good. 10 It is only necessary to specifically refer to one ground, which asserts that the judgment of the primary judge is unsafe in circumstances where there was a delay of over six years between the final submissions and the delivery of judgment. The appellant argues, amongst other things, that while delay is not itself a ground of appeal, the primary judge's findings of fact must be scrutinised with particular care where there has been inordinate delay: see Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17 at [68]-[74]. That is particularly so in respect of contested issues of credit. The appellant argues that the primary judge's reasons fail to adequately explain why the evidence of particular witnesses was accepted or rejected. 11 I consider that the appellant has demonstrated reasonable prospects of success in her appeal. It is unnecessary and undesirable to say any more about that issue. 12 If security for costs were ordered against the appellant in any substantial amount, she would not be able to raise the security. The appeal would be stifled in circumstances where it otherwise has reasonable prospects of success. 13 In these circumstances, I consider that the application for security for costs should be refused. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.