Kancheff v Charles Darwin University [2013] FCA 1252

Kancheff v Charles Darwin University [2013] FCA 1252

Leave to appeal was refused because the applicant did not show that the discretionary security for costs order was attended with sufficient doubt. The Federal Circuit Court Judge had considered the applicant's impecuniosity and the possibility that the order would shut down the litigation, the insurance point was not raised below and in any event was irrelevant, the alleged misstatement about access to previous student work did not undermine the primary judge's reasoning, and the applicant was given an opportunity to identify his affidavit material while the primary judge remained cautious about merits at an interlocutory stage.

Jurisdiction
Australia
Judgment Date
25 November 2013
Procedural Posture
Application for Leave to Appeal / Application for Leave to Appeal From Federal Circuit Court Orders Requiring Security for Costs
Outcome
The application for leave to appeal was dismissed.
Legal Topics
['leave to Appeal' 'security for Costs' 'disability Discrimination' 'exercise of Discretion' 'new Point on Appeal']
['practice and Procedure' 'discrimination Law'] ['leave to Appeal' 'security for Costs' 'disability Discrimination' 'exercise of Discretion' 'new Point on Appeal']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Application for Leave to Appeal From Federal Circuit Court Orders Requiring Security for Costs

Legal Issues

  1. 1 ["Whether the Federal Circuit Court Judge's order that the applicant pay security for costs was attended with sufficient doubt to warrant reconsideration by the Federal Court." 'Whether substantial injustice would result if leave to appeal were refused.' "Whether the applicant's impecuniosity and the possibility that the security order would shut down the proceeding showed appealable error." "Whether the respondents' alleged insurance was relevant to the order for security for costs or could be raised for the first time on appeal." 'Whether the Federal Circuit Court Judge failed to give the applicant an adequate opportunity to put forward evidence.']

Ratio Decidendi

Leave to appeal was refused because the applicant did not show that the discretionary security for costs order was attended with sufficient doubt. The Federal Circuit Court Judge had considered the applicant's impecuniosity and the possibility that the order would shut down the litigation, the insurance point was not raised below and in any event was irrelevant, the alleged misstatement about access to previous student work did not undermine the primary judge's reasoning, and the applicant was given an opportunity to identify his affidavit material while the primary judge remained cautious about merits at an interlocutory stage.

Court Disposition

The application for leave to appeal was dismissed.

Orders

  • ['The application for leave to appeal be dismissed.']