Khoury v Macquarie Air Pty Ltd

In the matter of Khoury v Macquarie Air Pty Ltd, the respondent, Macquarie Air, applied for an order that the applicant, Khoury, provide security for costs in the proceedings. Khoury, a former employee of Macquarie Air, filed a claim for unpaid entitlements and superannuation in the Federal Circuit and Family Court of Australia. The dispute centres around the classification of Khoury's employment and his entitlements, as well as the appropriateness of ordering security for costs under the Fair Work Act 2009 (Cth). The court was required to decide whether there was a tangible prospect that section 570(2)(b) of the Act would be satisfied, which would exempt the applicant from the need to provide security for costs.

The court considered the applicant's residence in the USA and the lack of real property in Australia as factors that might typically support an order for security. However, the court found no evidence that Khoury was impecunious, and noted the general principle that a natural person who has commenced litigation will not be required to provide security merely because they are impecunious. Given that the respondent had not satisfied the court that there was a tangible prospect that section 570(2)(b) of the Act would be met, the application for security for costs was dismissed. The court emphasised that the circumstances in which an applicant should be ordered to provide security for a respondent’s costs in proceedings under the Act are likely to be exceptional.

In light of the above, the court dismissed the application for security for costs and made no order for security. The case underscores the exceptional nature of such orders in proceedings under the Fair Work Act and the importance of demonstrating a tangible prospect of the relevant section being engaged.