Jarraman Arts Aboriginal Corporation v Tourism Australia (No 2) [2005] FCA 30

Jarraman Arts Aboriginal Corporation v Tourism Australia (No 2) [2005] FCA 30

The Court refused to order security for costs against both applicants in favour of the first respondent, as to do so would stultify the proceedings given the applicants' impecuniosity and lack of supporting funders, and because the second applicant had claims arising from guaranteeing the first applicant's debt. However, the Court ordered the first applicant to pay $30,000 security to the second respondent given the applicants' weaker prospects against the second respondent, balancing the need to protect the second respondent's interests without entirely stultifying the claim.

Jurisdiction
Australia
Judgment Date
02 February 2005
Procedural Posture
Motion / Application for Security for Costs
Outcome
Security for costs granted in part
Legal Topics
['security for Costs' 'impecuniosity' 'discretionary Orders' 'strike Out Applications']
['civil Procedure'] ['security for Costs' 'impecuniosity' 'discretionary Orders' 'strike Out Applications']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Motion / Application for Security for Costs

Legal Issues

  1. 1 ['Whether the applicants should be ordered to provide security for costs to the respondents.' 'Whether impecuniosity is a bar to an order for security for costs under s 56(1) Federal Court of Australia Act 1976 (Cth) and s 1335(1) Corporations Act 2001 (Cth).' "Whether the applicants' impecuniosity was caused by the respondents' conduct." 'Whether ordering security for costs would stultify the proceedings.']

Ratio Decidendi

The Court refused to order security for costs against both applicants in favour of the first respondent, as to do so would stultify the proceedings given the applicants' impecuniosity and lack of supporting funders, and because the second applicant had claims arising from guaranteeing the first applicant's debt. However, the Court ordered the first applicant to pay $30,000 security to the second respondent given the applicants' weaker prospects against the second respondent, balancing the need to protect the second respondent's interests without entirely stultifying the claim.

Court Disposition

Security for costs granted in part

Orders

  • ["No order for security for costs against either applicant in favour of the first respondent; first respondent's application refused as to both applicants." "Order that the first applicant pay $30,000 security for costs to the second respondent; second respondent's application refused as to the second applicant."...