Fazal v Bka Practice Co Pty Ltd

Case [2021] FCA 626

FEDERAL COURT OF AUSTRALIA

Fazal v BKA Practice Co Pty Ltd [2021] FCA 626

File number(s): VID 116 of 2021
Judgment of: ANDERSON J
Date of judgment: 9 June 2021
Catchwords: PRACTICE AND PROCEDURE – security for costs –
general principles – appeal from Federal Circuit Court – bankruptcy proceeding – consideration of merits of appeal – whether the litigation will be stifled if order for security made – whether there was delay in bringing application – whether applicant’s impecuniosity arises out of respondent’s conduct – security for costs ordered   

Legislation:

Federal Court of Australia Act 1976 (Cth), s 56

Federal Court Rules 2011 (Cth), r 19.01(1)

Cases cited:

Abbott v Zoetis Australia Pty Ltd (No 2) [2019] FCA 462

All Class Insurance Brokers Pty Ltd (in liquidation) v Chubb Insurance Australia Limited [2020] FCA 840

BKA Practice Co Pty Ltd v Nida [2021] FCCA 334

Concrete Mining Structures Pty Ltd v Cellcrete Australia Pty Ltd (No 2) [2016] FCA 360

Etnyre v Australian Broadcasting Corporation [2021] FCA 610

Kayler-Thomson v Colonial First State Investments Ltd [2020] FCA 1867

Hardingham v RP Data Pty Limited [2020] FCA 1062

Division: General Division
Registry: Victoria
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 21
Date of hearing: Determined on the papers
Counsel for the Applicant: The Applicant was self-represented
Counsel for the Respondent: Edward Moon
Solicitor for the Respondent: Bellei King & Associates

ORDERS

VID 116 of 2021
BETWEEN:

ROONA NIDA FAZAL

Applicant
AND:

BKA PRACTICE CO PTY LTD

Respondent

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

9 JUNE 2021

THE COURT ORDERS THAT:

1.Within 28 days of the date of these orders, the applicant is to provide security for costs fixed in the sum of $9,020 (Security Amount).

2.The Security Amount is to be paid into Court.

3.Pursuant to r 19.01(1)(b) of the Federal Court Rules 2011 (Cth), the proceeding be stayed until the applicant has paid the Security Amount in accordance with order 1 above.

4.If the applicant fails to comply with order 1 above, an application may be made for an order that the proceeding be dismissed pursuant to s 56(4) of the Federal Court of Australia Act 1976 (Cth) and r 19.01(1)(c) of the Federal Court Rules 2011 (Cth).

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

ANDERSON J:

INTRODUCTION

  1. The respondent in this proceeding, BKA Practice Co Pty Ltd, applies for an order that the applicant provide security for costs fixed in the sum of $9,020 and, if the applicant fails to provide such security, the proceeding be stayed. The applicant relies on s 56 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and an affidavit of Mr Jerry Belleli affirmed 10 May 2021. 

  2. On 13 May 2021, I made an order that, unless otherwise directed by the Court, the respondent’s application for security for costs would be determined on the papers without an oral hearing. 

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Details
AGLC
Fazal v Bka Practice Co Pty Ltd [2021] FCA 626
Case
[2021] FCA 626
Decision Date

CaseChat Overview and Summary

In Fazal v Bka Practice Co Pty Ltd, the applicant, Fazal, seeks to appeal from a judgment made by the Federal Circuit Court in the matter of BKA Practice Co Pty Ltd v Nida. The grounds for the appeal include an alleged failure by the primary judge to consider relevant evidence, an authority to “go behind” a judgment resulting in a bankruptcy order, and an alleged inappropriate assessment of procedural history. The court must also determine whether the applicant’s impecuniosity, caused by her status as an undischarged bankrupt, would result in a material risk of non-payment, and whether the amount sought for security for costs is reasonable and not oppressive. Further, the court must consider whether the respondent’s conduct caused the applicant’s impecuniosity and whether there was a delay in bringing the application for security for costs.

The court found that the appeal grounds, particularly those relating to evidence and procedural history, have limited prospects of success. The court accepted that the applicant is impecunious due to her status as an undischarged bankrupt and that the risk of non-payment is material. The amount sought for security for costs was found to be reasonable and not oppressive, as it was less than the amount the applicant offered to pay into the Federal Circuit Court. The court found no evidence that the respondent’s conduct caused the applicant’s impecuniosity, and there was no delay in bringing the application for security for costs.

In light of the above, the court ordered that the applicant provide security for costs in the sum of $9,020, to be paid into Court within 28 days of the date of the judgment. The proceeding was to be stayed until the applicant had paid the Security Amount in accordance with the order. If the applicant failed to comply with the order, an application could be made for an order that the proceeding be dismissed.

The final orders were that the applicant must provide security for costs in the sum of $9,020 within 28 days of the date of the orders, to be paid into Court. The proceeding would be stayed until the applicant had paid the Security Amount in accordance with the order. If the applicant failed to comply with the order, an application could be made for an order that the proceeding be dismissed.

Orders

Orders of the court

1. Within 28 days of the date of these orders, the applicant is to provide security for costs fixed in the sum of $9,020 (Security Amount).

2. The Security Amount is to be paid into Court.

3. Pursuant to r 19.01(1)(b) of the Federal Court Rules 2011 (Cth), the proceeding be stayed until the applicant has paid the Security Amount in accordance with order 1 above.

4. If the applicant fails to comply with order 1 above, an application may be made for an order that the proceeding be dismissed pursuant to s 56(4) of the Federal Court of Australia Act 1976 (Cth) and r 19.01(1)(c) of the Federal Court Rules 2011 (Cth).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

First, the applicant seeks to appeal from the judgment in BKA Practice Co Pty Ltd v Nida [2021] FCCA 334 (Primary Judgment). The grounds of appeal set out in the application for leave to appeal filed 12 March 2021 are that the primary judge erred by (1) “failing, refusing to consider relevant and important evidence”; (2) failing “to consider the authority to “go behind” the judgment resulting in the” relevant bankruptcy order; and (3) failing to make an “appropriate assessment of the procedural history of the proceedings in considering the cause of delays and estimating the time of delays”. Two of those appeal grounds relate to a consideration of matters relating to evidence and procedure. One of the appeal grounds appears to relate to an alleged failure to consider authority relating to “going behind” a judgment which resulted in an order as to bankruptcy. It must be said that, as matters currently stand, appeal grounds of that nature prima facie have limited prospects of success. Second, I accept that the applicant is impecunious by reason of her status as an undischarged bankrupt and the risk of non-payment is material. Third, the amount sought is reasonable and less than the amount that the applicant offered to pay into the Federal Circuit Court on 10 February 2021: see Primary Judgment, [60]. In my view, the amount of security sought is not oppressive. Fourth, there is no evidence that the applicant’s impecuniosity was caused by the respondent. Finally, the respondent has not delayed in bringing the respondent’s application for security for costs. DISPOSITION For the reasons given, and having regard to all of the circumstances, I will order that the applicant give security for costs. The respondent sought an order that the applicant give security for costs and, if the applicant fails to provide such security, the proceeding be stayed. However, having regard to the terms of s 56 of the FCA Act and r 19.01(1)(b) of the Federal Court Rules 2011 (Cth), I will make the following orders: (1)Within 28 days of the date of this judgment, the applicant is to provide security for costs fixed in the sum of $9,020 (Security Amount).(2)The Security Amount is to be paid into Court. (3)Pursuant to r 19.01(1)(b) of the Federal Court Rules 2011 (Cth), the proceeding be stayed until the applicant has paid the Security Amount in accordance with order 1 above.(4)If the applicant fails to comply with order 1 above, an application may be made for an order that the proceedings be dismissed pursuant to s 56(4) of the Federal Court of Australia Act 1976 (Cth) and r 19.01(1)(c) of the Federal Court Rules 2011 (Cth). I note that orders of that kind are similar to the orders made by Allsop CJ in All Class Insurance and by Abraham J in Etnyre.

Ratio Decidendi

Legal Principle Established

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