Cosenza v Gill

The Full Court of the Supreme Court of South Australia heard an appeal concerning an application for security for costs and a related application for the disqualification of a judge. The appellant, Mr Cosenza, sought to appeal interlocutory decisions made in the original proceedings, while the respondent, Ms Gill, sought security for the costs of that appeal. A further issue arose regarding the impartiality of the primary judge who had made the original decisions.

The central legal issues before the Full Court were whether the primary judge had erred in refusing to grant security for costs against the appellant, and whether the primary judge ought to have disqualified himself from hearing the matter due to apprehended bias. The court was required to consider the relevant legislative provisions and established legal principles governing applications for security for costs and the test for judicial disqualification.

In relation to security for costs, the Full Court applied the principles established in cases such as *Rio Tinto Zinc Corporation v Westinghouse Electric Corporation*, considering factors such as the appellant's financial position, the merits of the appeal, and whether an order for security would stifle the appeal. On the issue of apprehended bias, the court applied the test from *Briginshaw v Briginshaw* and *Johnson v Johnson*, assessing whether a fair-minded lay observer, having considered the facts, would apprehend that the judge might not bring an impartial mind to the issues. The court found that the primary judge had not erred in refusing security for costs and that there was no reasonable apprehension of bias.

Consequently, the Full Court dismissed the appeal and the application for disqualification, ordering the appellant to pay the respondent's costs of the appeal.