Dye v Commonwealth Securities Limited [2012] FCA 992

Dye v Commonwealth Securities Limited [2012] FCA 992

Security for costs was ordered because the appellant accepted in substance that she could not meet an adverse costs order, the appeals were unlikely to succeed because they largely attacked extensive factual and credit findings made after a long trial, the asserted public interest and other discretionary matters did not outweigh the respondents' entitlement to protection, and although security would probably make pursuit of the appeals more difficult, the circumstances justified substantial security rather than giving the appellant a cost-free further challenge to findings overwhelmingly adverse to her.

Jurisdiction
Australia
Judgment Date
14 August 2012
Procedural Posture
Interlocutory Applications for Security for Costs in Two Appeals / Single Judge Hearing on Appeal From Federal Court Proceedings Dismissed at First Instance
Outcome
Applications for security for costs granted.
Legal Topics
['security for Costs on Appeal' 'prospects of Success on Appeal' 'stifling or Stultifying an Appeal' 'impecuniosity' 'likely Length and Costs of Appeal' 'referral to Full Court' 'recusal']
['practice and Procedure' 'costs' 'appeals' 'discrimination' 'defamation'] ['security for Costs on Appeal' 'prospects of Success on Appeal' 'stifling or Stultifying an Appeal' 'impecuniosity' 'likely Length and Costs of Appeal' 'referral to Full Court' 'recusal']

Case Brief

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Procedural Posture

Interlocutory Applications for Security for Costs in Two Appeals / Single Judge Hearing on Appeal From Federal Court Proceedings Dismissed at First Instance

Legal Issues

  1. 1 ["Whether the appellant should be ordered to provide security for the respondents' costs of the appeals under s 56 of the Federal Court of Australia Act 1976 (Cth) and r 36.09 of the Federal Court Rules 2011." 'Whether the appeals had reasonable prospects of success, particularly where they largely challenged factual findings and credit findings made after a lengthy trial.' 'Whether an order for security would stifle or stultify reasonably arguable appeals.' "Whether the appellant's impecuniosity resulted from the conduct complained of in the underlying proceedings." 'What amount of security was appropriate having regard to the likely length and costs of the appeals.' 'Whether the applications for security should be referred to a Full Court or reserved by stated case.']

Ratio Decidendi

Security for costs was ordered because the appellant accepted in substance that she could not meet an adverse costs order, the appeals were unlikely to succeed because they largely attacked extensive factual and credit findings made after a long trial, the asserted public interest and other discretionary matters did not outweigh the respondents' entitlement to protection, and although security would probably make pursuit of the appeals more difficult, the circumstances justified substantial security rather than giving the appellant a cost-free further challenge to findings overwhelmingly adverse to her.

Court Disposition

Applications for security for costs granted.

Orders

  • ['In NSD 526 of 2012, no later than 14 September 2012, the appellant provide security in the sum of $200,000, in a form and manner acceptable to the District Registrar, for the costs of the respondents.' 'In NSD 526 of 2012, the appeal be stayed until the security is provided.' 'In NSD 526 of 2012, if the appellant...