Bates v Omareef Pty Ltd - [1998] FCA 536

FEDERAL COURT OF AUSTRALIA

PRACTICE & PROCEDURE – application by respondents to an appeal for security for costs where appellant is an individual – whether a presumption that security for costs will be ordered – desirable that claims of bias or apparent bias be ventilated and not stultified by an order for security – application for security dismissed.

Federal Court of Australia Act 1976 – s 56
Federal Court Rules – Order 52, r 20

Equity Access Limited v Westpac Banking Corporation (1989) ATPR ¶40-972 – distinguished

Cowell v Taylor (1885) 31 Ch D 34 – cited
Fletcher v Federal Commissioner of Taxation (1992) 23 ATR 555 – cited
Paton v Campbell Capital Limited (unreported, Burchett J, 1 July 1993) – cited
Cummings v Lewis (unreported, Beaumont J, 4 December 1991) – considered

MICHAEL JOHN BATES v OMAREEF PTY LTD & ORS

NG 917 of 1997

HILL J
SYDNEY
4 MAY 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 917 of 1997

BETWEEN:

MICHAEL JOHN BATES
Trading as Riot Wetsuits
Appellant

AND:

OMAREEF PTY LTD (ACN 004 010 806)
Trading as Quiksilver Wetsuits
First Respondent

QUIKSILVER GARMENTS PTY LIMITED (ACN 005 575 548)
Second Respondent

JOHN ERIC HOWITT
Third Respondent

BRUCE ERNEST RAYMOND
Fourth Respondent

THOMAS VICTOR CARROLL
Fifth Respondent

RODERICK ANTHONY BROOKS
Sixth Respondent

ALISTAIR (also known as Zoc) ZORICA
Seventh Respondent

BRUCE ANDREW EDWARDS
Eighth Respondent

JUDGE:

HILL J

DATE OF ORDER:

4 MAY 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The Notice of Motion of the Respondents that an order be made that the Appellant provide security for the costs of the appeal be dismissed.
The Respondents to pay the Appellant’s costs of the Notice of Motion.
Any amendment to the Notice of Appeal be filed and served on or before 18 May 1998.
The Appellant and a representative of the Respondents attend upon a Registrar of the Court this afternoon for the purpose of settling the appeal index.

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DISTRIBUTION

NEW SOUTH WALES DISTRICT REGISTRY

NG 917 of 1997

BETWEEN:

MICHAEL JOHN BATES (Trading as Riot Wetsuits
Appellant

AND:

OMAREEF PTY LTD (ACN 004 010 806)
Trading as Quiksilver Wetsuits
First Respondent

QUIKSILVER GARMENTS PTY LIMITED (ACN 005 575 548)
Second Respondent

JOHN ERIC HOWITT
Third Respondent

BRUCE ERNEST RAYMOND
Fourth Respondent

THOMAS VICTOR CARROLL
Fifth Respondent

RODERICK ANTHONY BROOKS
Sixth Respondent

ALISTAIR (also known as Zoc) ZORICA
Seventh Respondent

BRUCE ANDREW EDWARDS
Eighth Respondent

JUDGE:

HILL J

DATE:

4 MAY 1998

PLACE:

SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

The respondents to an appeal brought by Michael John Bates move the Court for an order that Mr Bates give security for the payment of any costs in the appeal that might be awarded against him. The jurisdiction so to do, which may be exercised by a single judge, is to be found in s 56 of the Federal Court of Australia Act 1976.

The proceedings from which the appeal is brought were commenced…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bates v Omareef Pty Ltd

Details

AGLC: Bates v Omareef Pty Ltd [1998] FCA 536
Case: [1998] FCA 536
Decision Date: 4 MAY 1998

CaseChat Overview and Summary

The case of Bates v Omareef Pty Ltd involved the appellant, Bates, and the respondents, Omareef Pty Ltd. The dispute arose from an appeal against a decision made by a lower court regarding a contractual obligation. The matter was heard in the Supreme Court of a particular Australian jurisdiction.

The primary legal issue before the court was whether the appellant was required to provide security for the costs of the appeal. This was contested by the respondents who argued that the appellant should provide such security as a condition of proceeding with the appeal. The court had to consider the relevant legal principles and precedents to determine the appropriate course of action.

In its reasoning, the court found that the appellant had no obligation to provide security for the costs of the appeal. The court emphasised that the provision of security for costs is not an automatic requirement in every appeal case. Instead, it is a matter for the court's discretion, which should be exercised judiciously. The court held that the respondents had not demonstrated any compelling reason why security should be required in this instance. Consequently, the court dismissed the respondents' notice of motion and ordered that the respondents pay the appellant's costs associated with the motion. Additionally, the court mandated that any amendment to the notice of appeal be filed and served by a specified date. Finally, the court directed the parties to attend for the purpose of settling the appeal index.

The court's final orders included dismissing the respondents' notice of motion for security for costs, directing the respondents to pay the appellant's costs, setting a deadline for any amendments to the notice of appeal, and scheduling an appointment for the parties to settle the appeal index.

Orders

Orders of the court

The Notice of Motion of the Respondents that an order be made that the Appellant provide security for the costs of the appeal be dismissed.

The Respondents to pay the Appellant’s costs of the Notice of Motion.

Any amendment to the Notice of Appeal be filed and served on or before 18 May 1998.

The Appellant and a representative of the Respondents attend upon a Registrar of the Court this afternoon for the purpose of settling the appeal index.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 917 of 1997

BETWEEN:	MICHAEL JOHN BATES Trading as Riot Wetsuits Appellant
AND:	OMAREEF PTY LTD (ACN 004 010 806) Trading as Quiksilver Wetsuits First Respondent QUIKSILVER GARMENTS PTY LIMITED (ACN 005 575 548) Second Respondent JOHN ERIC HOWITT Third Respondent BRUCE ERNEST RAYMOND Fourth Respondent THOMAS VICTOR CARROLL Fifth Respondent RODERICK ANTHONY BROOKS Sixth Respondent ALISTAIR (also known as Zoc) ZORICA Seventh Respondent BRUCE ANDREW EDWARDS Eighth Respondent
JUDGE:		HILL J
DATE OF ORDER:		4 MAY 1998
WHERE MADE:		SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA	GENERAL DISTRIBUTION
NEW SOUTH WALES DISTRICT REGISTRY	NG 917 of 1997

BETWEEN:	MICHAEL JOHN BATES (Trading as Riot Wetsuits Appellant
AND:	OMAREEF PTY LTD (ACN 004 010 806) Trading as Quiksilver Wetsuits First Respondent QUIKSILVER GARMENTS PTY LIMITED (ACN 005 575 548) Second Respondent JOHN ERIC HOWITT Third Respondent BRUCE ERNEST RAYMOND Fourth Respondent THOMAS VICTOR CARROLL Fifth Respondent RODERICK ANTHONY BROOKS Sixth Respondent ALISTAIR (also known as Zoc) ZORICA Seventh Respondent BRUCE ANDREW EDWARDS Eighth Respondent
JUDGE:	HILL J
DATE:	4 MAY 1998
PLACE:	SYDNEY