The Airtourer Co operative Limited v Millicer Aircraft Industries Pty Limited [2004] FCA 1400

The Airtourer Co operative Limited v Millicer Aircraft Industries Pty Limited [2004] FCA 1400

The Court held that although the applicant, a co-operative, is not to be equated with a natural person for security for costs purposes, the fundamental principle that poverty is not a ground for ordering security for costs survived the enactment of s 56(1) of the Federal Court of Australia Act 1976 (Cth). However, the applicant's financial arrangements, willingness to exhaust funds for litigation, and lack of intention to meet adverse cost orders justified ordering security for costs, set at a modest level to avoid stifling the litigation.

Jurisdiction
Australia
Judgment Date
01 November 2004
Procedural Posture
Motion for Security for Costs / Determination of Motion for Security for Costs
Outcome
Application granted; applicant ordered to provide security for costs
Legal Topics
['security for Costs' 'impecuniosity of Applicant' 'co Operatives as Litigants' 'exercise of Judicial Discretion']
['civil Procedure'] ['security for Costs' 'impecuniosity of Applicant' 'co Operatives as Litigants' 'exercise of Judicial Discretion']

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Procedural Posture

Motion for Security for Costs / Determination of Motion for Security for Costs

Legal Issues

  1. 1 ['Whether a co-operative may be treated as a natural person for purposes of security for costs' 'Whether poverty of applicant is a ground for requiring security for costs after enactment of s 56(1) Federal Court of Australia Act 1976 (Cth)' 'Relevant factors to the exercise of discretion on security for costs']

Ratio Decidendi

The Court held that although the applicant, a co-operative, is not to be equated with a natural person for security for costs purposes, the fundamental principle that poverty is not a ground for ordering security for costs survived the enactment of s 56(1) of the Federal Court of Australia Act 1976 (Cth). However, the applicant's financial arrangements, willingness to exhaust funds for litigation, and lack of intention to meet adverse cost orders justified ordering security for costs, set at a modest level to avoid stifling the litigation.

Court Disposition

Application granted; applicant ordered to provide security for costs

Orders

  • ['The applicant give security in a form satisfactory to the Registrar for the payment of costs that may be awarded against it in the sum of $20,000.00.' 'Pending the provision of security as required, this proceeding be stayed.']