McCardle v Johnson

[2023] FCA 1369

FEDERAL COURT OF AUSTRALIA

McCardle v Johnson [2023] FCA 1369  

Appeal from:

McCardle v Johnson [2021] FCA 1528

McCardle v Johnson (No 2) [2022] FCA 168

McCardle v Johnson (No 3) [2023] FCA 790

File number:

QUD 343 of 2023

Judgment of:

STEWART J

Date of judgment:

2 November 2023

Catchwords:

PRACTICE AND PROCEDURE ­– application for security for costs pending the determination of application for leave to appeal and for extensions of time – whether the likelihood of an order for security for costs stifling a claim weighs against making such an order where the claim is sought to be pursued in an appeal and in respect of which there has thus already been a proceeding

Legislation:

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

Cases cited:

Clack v Collins [2010] FCA 513

McCardle v Johnson (No 2) [2022] FCA 168

McCardle v Johnson (No 3) [2023] FCA 790

McCardle v Johnson [2021] FCA 1528

Soh v Commonwealth of Australia [2008] FCA 1524

Tait v Bindal People [2002] FCA 322

Cowell v Taylor (1885) 31 Ch D 34

Division:

General Division

Registry:

Queensland

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Number of paragraphs:

24

Date of hearing:

2 November 2023

Solicitor for the Applicant:

The Applicant appeared in person.

Counsel for the First Respondent:

S Russell

Solicitor for the First Respondent:

Wallmans Lawyers

Solicitor for the Second Respondent:

Australian Government Solicitor

ORDERS

QUD 343 of 2023

BETWEEN:

ROXANNE MARIE MCCARDLE

Applicant

AND:

GREGG ROBERTSON JOHNSON

First Respondent

INSPECTOR-GENERAL IN BANKRUPTCY

Second Respondent

ORDER MADE BY:	STEWART J
DATE OF ORDER:	2 NOVEMBER 2023

THE COURT ORDERS THAT:

1.Pursuant to s 56 of the Federal Court of Australia Act1976 (Cth) the applicant provide security in the sum of $10,000 inclusive of GST for the first respondent’s costs of the application for leave to appeal and for extensions of time by payment into Court or in such other form as may be acceptable to the first respondent or, failing that, acceptable to a Registrar of the Court.

2.Such security be provided by 4 December 2023.

3.The proceeding be dismissed in the event of the applicant’s default in providing security as ordered.

4.The costs be costs in the cause of the application for leave to appeal and for extensions of time.

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

REASONS FOR JUDGMENT
(Delivered ex tempore, revised from the transcript)

STEWART J:

1. The principal proceeding before me was commenced by a notice of appeal, although the applicant, who was wrongly referred to in that notice as the appellant, accepts that the orders against which she seeks to appeal are interlocutory orders, and for that reason she requires leave to appeal. The applicant also accepts that in respect of at least some of the many orders identified in that notice of appeal, she requires an extension of time. Indeed, the document headed “notice of appeal”, as she points…