Maher v Official Trustee in Bankruptcy - [2014] FCA 113

FEDERAL COURT OF AUSTRALIA
Maher v Official Trustee in Bankruptcy [2014] FCA 113

Citation: Maher v Official Trustee in Bankruptcy [2014] FCA 113

Appeal from: Application for leave to appeal: Maher v Official Trustee in Bankruptcy [2013] FCA 1143

Parties: DENNIS MAHER v THE OFFICIAL TRUSTEE IN BANKRUPTCY and COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124

File number: VID 1223 of 2013

Judge: MURPHY J

Date of judgment: 19 February 2014

Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal against decision to order security for costs – applicant impecunious – whether leave to appeal should be granted

Legislation: Federal Court of Australia Act 1976 (Cth) – s 37M(1)

Cases cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Bright v Femcare Ltdand Anor (2002) 195 ALR 574
Caraher v Gillespie (1906) 23 WN (NSW) 161
Commonwealth Bank of Australia & Ors v Maher [2008] FMCA 1280
Co-Operative Farmers’ and Graziers’ Direct Meat Supply Ltd v Smart [1977] VR 386
Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
DJE Constructions Pty Ltd v Maddocks (1981) 38 ALR 185
House v The King (1936) 55 CLR 499
Lines v Tana Pty Ltd [1987] VR 641
Lucas v Yorke and Anor (1983) 50 ALR 228
Lynnebry Pty Ltd v Farquhar Enterprises Pty Ltd (1977) 3 ACLR 133
Maher v Commonwealth Bank of Australia [2007] FMCA 400
Maher v Official Trustee in Bankruptcy [2013] FCA 1143
Pearson v Naydler [1977] 3 All ER 531
Tradestock Pty Ltd v TNT (Management) Pty Ltd (1977) 14 ALR 52
Transport Workers Union v Leon Laideely Pty Ltd (1980) 28 ALR 589

Date of hearing: 18 February 2014

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 35

Counsel for the Applicant: The Applicant appeared in person

Counsel for the First Respondent The First Respondent did not appear

Counsel for the Second Respondent: Mr J W S Peters SC and Mr R D Shepherd

Solicitor for the Second Respondent: Turks Legal

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1223 of 2013

BETWEEN:
DENNIS MAHER
Applicant

AND:
THE OFFICIAL TRUSTEE IN BANKRUPTCY
First Respondent

COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124
Second Respondent

JUDGE:

MURPHY J

DATE OF ORDER:

18 FEBRUARY 2014

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The Applicant pay the Second Respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1223 of 2013

BETWEEN:
DENNIS MAHER
Applicant

AND:
THE OFFICIAL TRUSTEE IN BANKRUPTCY
First Respondent

COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124
Second Respondent

JUDGE:

MURPHY J

DATE:

19 FEBRUARY 2014

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

In this proceeding the applicant, Dennis Maher, seeks leave to appeal from…

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.

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Details

Case: [2014] FCA 113
Decision Date: 19 February 2014

CaseChat Overview and Summary

The applicant, Maher, sought leave to appeal against a decision that required security for costs in proceedings against the Official Trustee in Bankruptcy. The matter was before the Full Court of the Federal Court of Australia. The applicant argued that he was impecunious and thus should not be required to provide security for costs. The central legal issues revolved around whether the applicant's financial circumstances justified a departure from the usual requirement for security for costs and whether the applicant was entitled to leave to appeal the decision.

The court examined the principle that security for costs is generally required to protect a defendant from the financial burden of frivolous litigation. However, the court recognised that exceptional circumstances may warrant a departure from this principle. In this case, the court found that the applicant had not demonstrated exceptional circumstances warranting a departure from the requirement for security for costs. The court also held that the applicant had not shown that the decision to require security for costs was so erroneous as to justify an appeal. Consequently, the court dismissed the application for leave to appeal and ordered the applicant to pay the costs of the Official Trustee in Bankruptcy.

The court's reasoning was grounded in the principles of cost management in litigation and the importance of protecting defendants from unjust financial burdens. The Full Court concluded that the applicant's financial hardship did not sufficiently warrant a departure from the usual requirement for security for costs. As such, the application for leave to appeal was dismissed, and the applicant was ordered to pay the costs of the Official Trustee in Bankruptcy.

Orders

Orders of the court

1. The application for leave to appeal be dismissed.

2. The Applicant pay the Second Respondent’s costs.

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

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.

Citation:	Maher v Official Trustee in Bankruptcy [2014] FCA 113
Appeal from:	Application for leave to appeal: Maher v Official Trustee in Bankruptcy [2013] FCA 1143
Parties:	DENNIS MAHER v THE OFFICIAL TRUSTEE IN BANKRUPTCY and COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124
File number:	VID 1223 of 2013
Judge:	MURPHY J
Date of judgment:	19 February 2014
Catchwords:	PRACTICE AND PROCEDURE – application for leave to appeal against decision to order security for costs – applicant impecunious – whether leave to appeal should be granted
Legislation:	Federal Court of Australia Act 1976 (Cth) – s 37M(1)
Cases cited:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Bright v Femcare Ltdand Anor (2002) 195 ALR 574 Caraher v Gillespie (1906) 23 WN (NSW) 161 Commonwealth Bank of Australia & Ors v Maher [2008] FMCA 1280 Co-Operative Farmers’ and Graziers’ Direct Meat Supply Ltd v Smart [1977] VR 386 Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 DJE Constructions Pty Ltd v Maddocks (1981) 38 ALR 185 House v The King (1936) 55 CLR 499 Lines v Tana Pty Ltd [1987] VR 641 Lucas v Yorke and Anor (1983) 50 ALR 228 Lynnebry Pty Ltd v Farquhar Enterprises Pty Ltd (1977) 3 ACLR 133 Maher v Commonwealth Bank of Australia [2007] FMCA 400 Maher v Official Trustee in Bankruptcy [2013] FCA 1143 Pearson v Naydler [1977] 3 All ER 531 Tradestock Pty Ltd v TNT (Management) Pty Ltd (1977) 14 ALR 52 Transport Workers Union v Leon Laideely Pty Ltd (1980) 28 ALR 589
Date of hearing:	18 February 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	35
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the First Respondent	The First Respondent did not appear
Counsel for the Second Respondent:	Mr J W S Peters SC and Mr R D Shepherd
Solicitor for the Second Respondent:	Turks Legal

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1223 of 2013

JUDGE:	MURPHY J
DATE OF ORDER:	18 FEBRUARY 2014
WHERE MADE:	MELBOURNE

JUDGE:	MURPHY J
DATE:	19 FEBRUARY 2014
PLACE:	MELBOURNE