Bou-Simon, Robert Anthony v Attorney-General of the Commonwealth of Australia & Anor [1998] FCA 1701

Bou-Simon, Robert Anthony v Attorney-General of the Commonwealth of Australia & Anor [1998] FCA 1701

The appellant was resident outside Australia and, on the unrebutted evidence, had no assets in Australia, which made a prima facie case for security for costs. Although the appeal was not treated as frivolous, the appellant had already received a reasoned first instance judgment and was now the moving party in an appeal, so the defensive-proceeding principle did not apply. There was no evidence that security would oppressively impair his ability to conduct the appeal, and no evidence establishing that the cost of enforcing a costs order in France would be so low that security should be limited to registration costs. The Court therefore exercised its discretion to require security of...

Jurisdiction
Australia
Judgment Date
10 December 1998
Procedural Posture
Application for Security for Costs of an Appeal / Notices of Motion for Security for Costs After Dismissal of the Appellant's Application at First Instance
Outcome
Security for costs ordered for both respondents; appeal to be stayed if security is not provided; appellant ordered to pay the respondents' costs of the motions.
Legal Topics
['security for Costs of Appeal' 'appellant Resident Outside Australia' 'absence of Assets in Australia' 'reciprocal Enforcement of Foreign Judgments' 'discretion to Stay Appeal Pending Security']
['civil Procedure' 'costs' 'federal Court Procedure'] ['security for Costs of Appeal' 'appellant Resident Outside Australia' 'absence of Assets in Australia' 'reciprocal Enforcement of Foreign Judgments' 'discretion to Stay Appeal Pending Security']

Case Brief

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Procedural Posture

Application for Security for Costs of an Appeal / Notices of Motion for Security for Costs After Dismissal of the Appellant's Application at First Instance

Legal Issues

  1. 1 ["Whether the appellant should be ordered to provide security for the respondents' costs of the appeal." "Whether the appellant's residence in France and absence of assets in Australia justified security for costs." 'Whether the proceedings were defensive in character because they arose from extradition steps, such that security should not be ordered.' 'Whether any security should be limited to the cost of registering a costs judgment in France under reciprocal enforcement arrangements.' 'Whether ordering security would be oppressive given the extradition and liberty-related context of the proceedings.']

Ratio Decidendi

The appellant was resident outside Australia and, on the unrebutted evidence, had no assets in Australia, which made a prima facie case for security for costs. Although the appeal was not treated as frivolous, the appellant had already received a reasoned first instance judgment and was now the moving party in an appeal, so the defensive-proceeding principle did not apply. There was no evidence that security would oppressively impair his ability to conduct the appeal, and no evidence establishing that the cost of enforcing a costs order in France would be so low that security should be limited to registration costs. The Court therefore exercised its discretion to require security of...

Court Disposition

Security for costs ordered for both respondents; appeal to be stayed if security is not provided; appellant ordered to pay the respondents' costs of the motions.

Orders

  • ['The Appellant provide security for the costs of the First Respondent and the Second Respondent in a form acceptable to the Registrar in the sum of $9,500 each.' 'If the said security has not been provided by 5pm on 15 January 1999 the appeal be stayed until such time as security is provided.' 'The Appellant pay...