Hardingham v RP Data Pty Limited

In Hardingham v RP Data Pty Limited, the appellants sought to appeal the primary judge’s dismissal of their claim for copyright infringement. The primary judge had made orders for costs, which were stayed pending the outcome of the appeal. RP Data and REA, the respondents, filed interlocutory applications seeking security for their costs of the appeal, in accordance with rule 36.09 of the Federal Court Rules 2011. The appellants opposed the applications, arguing that they were impecunious and that ordering security would be oppressive and would stultify their appeal.

The court was required to decide whether the appellants' grounds of appeal were reasonably arguable, and whether granting security would be oppressive or would stultify the appeal. The court found that the appellants had a sufficiently arguable case on appeal to warrant permitting it to proceed. The court also found that the appellants were impecunious and that there was a real risk that the respondents would not recover their costs of the appeal if the appellants failed. However, the court considered that ordering security would be oppressive and would stultify the appeal. The court noted that the purpose of the discretion to order costs on appeal was protective, to ensure that a respondent was not unreasonably exposed to a risk that if the respondent was successful in defending the claim the respondent would nevertheless be deprived of the benefit of a costs order because of the appellant’s impecuniosity.

The court dismissed the interlocutory applications filed by the respondents, and ordered that the respondents pay the appellants’ costs of the interlocutory applications. The court considered that the appellants had a sufficiently arguable case on appeal, and that ordering security would be oppressive and would stultify the appeal. The court noted that the protective purpose of the discretion to order costs on appeal was engaged in this case, and that it was not appropriate to order security in those circumstances.