Madgwick v Kelly [2013] FCAFC 61

Madgwick v Kelly [2013] FCAFC 61

The Full Court held that the primary judge erred in finding on the evidence that an order for security would stultify the litigation and in failing to properly weigh the potential for group members or litigation funding to provide security. The applicants did not establish objectively the means and ability of group members to contribute. Security for costs was therefore ordered, with assessment and terms remitted to the primary judge.

Jurisdiction
Australia
Judgment Date
14 June 2013
Procedural Posture
Appeal (from Application for Security for Costs in Class Actions) / Full Court Decision on Appeal Against Refusal of Security for Costs
Outcome
Appeal allowed; orders of primary judge set aside; security for costs ordered, sum and manner to be determined by primary judge on remitter.
Legal Topics
['security for Costs' 'federal Court Procedure' 'pt IVA Representative Proceedings']
['civil Procedure' 'class Actions'] ['security for Costs' 'federal Court Procedure' 'pt IVA Representative Proceedings']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal (from Application for Security for Costs in Class Actions) / Full Court Decision on Appeal Against Refusal of Security for Costs

Legal Issues

  1. 1 ['Whether security for costs should be ordered in class actions brought by impecunious applicants' 'Application of s 43(1A) and s 33ZG(c)(v) of the Federal Court of Australia Act 1976 (Cth)' "Role of group members' financial circumstances in security applications" 'Whether litigation would be stifled by an order for security' "Relevance of solicitors' conditional costs agreements and litigation funding"]

Ratio Decidendi

The Full Court held that the primary judge erred in finding on the evidence that an order for security would stultify the litigation and in failing to properly weigh the potential for group members or litigation funding to provide security. The applicants did not establish objectively the means and ability of group members to contribute. Security for costs was therefore ordered, with assessment and terms remitted to the primary judge.

Court Disposition

Appeal allowed; orders of primary judge set aside; security for costs ordered, sum and manner to be determined by primary judge on remitter.

Orders

  • ['Leave granted to appeal from orders made on 17 December 2012.' 'Notice of appeal to be filed and served in form argued before Full Court on 22 May 2013.' 'Appeal allowed.' 'Orders of Court made 17 December 2012 set aside.' 'Applicants in primary proceeding to provide security for costs of respondents in sum and...