Tucker v McKee [2022] FCA 315

Tucker v McKee [2022] FCA 315

The appropriate security amount was determined by a broad brush assessment of the respondents' likely recoverable party-party costs, not by treating the National Guide to Counsel Fees as imposing the cap advanced by Mr Tucker. The appeal raised issues of some complexity and it was appropriate to allow senior counsel three days and junior counsel four days preparation, together with appearance and limited judgment-related fees, producing an estimated $56,980 in party-party costs. A 50% reduction was reasonable for litigation contingencies, and Mr Tucker had not established inability to pay or that greater security would stultify the appeal. The review application created additional costs...

Jurisdiction
Australia
Judgment Date
29 March 2022
Procedural Posture
Interlocutory Applications in an Appeal Concerning Security for Costs / Application for Review of Registrar's Security for Costs Order and Respondents' Application for Additional Security for Costs
Outcome
Mr Tucker's review application did not reduce the security amount; the respondents' application for additional security was granted, and total security of $36,122 was ordered with a stay of the appeal if security was not provided.
Legal Topics
["review of Registrar's Order" 'additional Security for Costs' 'national Guide to Counsel Fees' 'party Party Costs' 'fair Work Act Costs Regime' 'federal Jurisdiction']
['practice and Procedure' 'costs' 'security for Costs' 'other Federal Jurisdiction'] ["review of Registrar's Order" 'additional Security for Costs' 'national Guide to Counsel Fees' 'party Party Costs' 'fair Work Act Costs Regime' 'federal Jurisdiction']

Case Brief

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Procedural Posture

Interlocutory Applications in an Appeal Concerning Security for Costs / Application for Review of Registrar's Security for Costs Order and Respondents' Application for Additional Security for Costs

Legal Issues

  1. 1 ['Whether the amount of security for costs ordered by the Registrar should be varied on review.' "Whether the National Guide to Counsel Fees capped recoverable counsel's fees for a one-day appeal at the Fee on Brief amounts." 'Whether the security amount should be reduced because of the Fair Work Act 2009 (Cth) s 570 costs regime, asserted prospects of success, alleged failure to mitigate costs, or asserted general injustice.' 'Whether the respondents should receive additional security for costs incurred because of the review application.']

Ratio Decidendi

The appropriate security amount was determined by a broad brush assessment of the respondents' likely recoverable party-party costs, not by treating the National Guide to Counsel Fees as imposing the cap advanced by Mr Tucker. The appeal raised issues of some complexity and it was appropriate to allow senior counsel three days and junior counsel four days preparation, together with appearance and limited judgment-related fees, producing an estimated $56,980 in party-party costs. A 50% reduction was reasonable for litigation contingencies, and Mr Tucker had not established inability to pay or that greater security would stultify the appeal. The review application created additional costs...

Court Disposition

Mr Tucker's review application did not reduce the security amount; the respondents' application for additional security was granted, and total security of $36,122 was ordered with a stay of the appeal if security was not provided.

Orders

  • ["The Appellant provide security for the Respondents' costs of and incidental to the appeal in the amount of $36,122." 'On or before 4.00 pm on 5 April 2022 the Appellant pay the security amount by way of payment into Court or in a manner acceptable to a Registrar.' 'Failing provision of the security amount in...