Lim v Comcare [2016] FCA 1346

Lim v Comcare [2016] FCA 1346

Security for costs of $15,000 was appropriate because Dr Lim had not paid Comcare's first instance costs or explained why, had not provided requested information about her financial position, and had adduced no evidence that security would stifle the appeal. She had already unsuccessfully pursued review in the Tribunal and an appeal to a single judge, the prospects of the further appeal were treated as neutral rather than strongly arguable, no public interest or discretionary consideration justified refusing security, and the sum sought was modest when compared with Comcare's unchallenged estimate of appeal costs.

Jurisdiction
Australia
Judgment Date
11 November 2016
Procedural Posture
Interlocutory Application for Security for Costs in an Appeal / Appeal From Lim V Comcare [2016] FCA 709; Respondent's Amended Interlocutory Application for Security for Costs
Outcome
Application for security for costs granted; appeal to be stayed and ultimately dismissed if security is not provided within the ordered times; no order for costs of the application.
Legal Topics
['security for Costs' 'appeal From Administrative Appeals Tribunal Decision' 'safety, Rehabilitation and Compensation Act Compensation Claim' 'reasonable Administrative Action Exclusion' 'prospects of Success on Appeal' 'unpaid Adverse Costs Order']
['costs' 'administrative Law' 'workers Compensation' 'employment and Industrial Relations'] ['security for Costs' 'appeal From Administrative Appeals Tribunal Decision' 'safety, Rehabilitation and Compensation Act Compensation Claim' 'reasonable Administrative Action Exclusion' 'prospects of Success on Appeal' 'unpaid Adverse Costs Order']

Case Brief

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Procedural Posture

Interlocutory Application for Security for Costs in an Appeal / Appeal From Lim V Comcare [2016] FCA 709; Respondent's Amended Interlocutory Application for Security for Costs

Legal Issues

  1. 1 ["Whether the appellant should be ordered to give security for the respondent's costs of the appeal under s 56 of the Federal Court of Australia Act 1976 (Cth) and r 36.09 of the Federal Court Rules 2011 (Cth)." 'Whether there was a risk that the appellant would not meet any adverse costs order if the appeal were unsuccessful.' "Whether an order for security for costs would stifle the appellant's appeal." "Whether the appellant's prospects of success, public interest considerations, and other discretionary matters weighed for or against security for costs." 'What amount and form of security should be ordered.']

Ratio Decidendi

Security for costs of $15,000 was appropriate because Dr Lim had not paid Comcare's first instance costs or explained why, had not provided requested information about her financial position, and had adduced no evidence that security would stifle the appeal. She had already unsuccessfully pursued review in the Tribunal and an appeal to a single judge, the prospects of the further appeal were treated as neutral rather than strongly arguable, no public interest or discretionary consideration justified refusing security, and the sum sought was modest when compared with Comcare's unchallenged estimate of appeal costs.

Court Disposition

Application for security for costs granted; appeal to be stayed and ultimately dismissed if security is not provided within the ordered times; no order for costs of the application.

Orders

  • ["Within 28 days of the date of the orders the appellant give security for the respondent's costs of the appeal in the sum of $15,000 by paying the money into Court or providing to a Registrar of the Court an unconditional bank guarantee from an Australian-owned bank, as recognised by the Australian Prudential...