Paton v Campbell Capital Limited - [1993] FCA 449

STEVE PATON v. CAMPBELL CAPITAL LIMITED
No. NG332 of 1993
FED No. 449
Number of pages - 3
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Burchett J(1)

CATCHWORDS

Practice and Procedure - security for costs - principles in relation to exercise of discretion to require security for costs against an appellant - impecuniosity of appellant - prospect of success of appeal.

Federal Court Rules, Order 52, r. 20

Barton v. Minister for Foreign Affairs (1984) 2 FCR 463

Lall v. 53-55 Hall Street Pty Ltd (1978) 1 NSWLR 310

Kennedy v. McGeechan (1978) 1 NSWLR 314

HEARING

SYDNEY, 1 July 1993

#DATE 1:7:1993

The appellant appeared in person.

Solicitors for the Appellant: Messrs Andrew Thorpe

Counsel for the Respondent: Mr M.R. Aldridge

Solicitors for the Respondent: Messrs Baskin and Lewis

ORDER

Application dismissed.

JUDGE1

BURCHETT J There is a general principle, which Morling J laid down in Barton v. Minister for Foreign Affairs (1984) 2 FCR 463, and which has been since applied in a number of judgments. That principle is that impecuniosity is no bar to a litigant. Accordingly, it is not generally appropriate to require an individual litigant, who simply does not have funds, to pay a security which he cannot pay, as the price of admission to the courts of justice, which are open to all persons in Australia. A somewhat special position pertains in relation to appeals. I have been referred to the rules of the Supreme Court of New South Wales, which talk about special circumstances as a basis for ordering security for costs in an appeal.

Our own rules in this court explicitly provide that unless the court or a judge otherwise directs, no security for costs of an appeal to the court shall be required. That is Order 52, r. 20. It is plain from the manner in which that rule is expressed that there is a discretion, but that there is something of an onus resting upon one who says that an appellant must be required to provide security. A feature of an appeal, which marks it out from litigation at first instance from this point of view, is that there has already been a decision given by the judge who heard the matter at first instance, and that the appellant has, in other words, had a day in court, has had an opportunity to present his case, and has had a ruling which may be presumed to be correct.
But when one says that a ruling may be presumed to be correct, it would be quite unreal to ignore the fact that, I think, statistics show that on average something like one third of all appeals, in most civilised countries in the world, do succeed. Academics have written papers on the subject. So one has to do more than simply say one assumes a decision given by a court is correct. In this case, I have been taken carefully by…

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: [1993] FCA 449
Decision Date: 01 JULY 1993

CaseChat Overview and Summary

The case of Paton v Campbell Capital Limited involved a dispute between the appellant, Paton, and the respondent, Campbell Capital Limited, over an order requiring the appellant to provide security for costs against the respondent. The matter was heard in the Court of Appeal, where Paton contested the lower court's decision to require security for costs. The lower court had determined that, despite the appellant's impecuniosity, the prospect of success of the appeal was sufficient to warrant the imposition of security for costs.

The central legal issue before the Court of Appeal was whether the lower court had correctly exercised its discretion to require the appellant to provide security for costs against the respondent. Specifically, the Court needed to assess whether the appellant's impecuniosity and the prospect of success of the appeal warranted such a requirement. The Court was tasked with determining whether the lower court had properly considered the principles relevant to the exercise of this discretion and whether it had balanced the competing considerations appropriately.

The Court of Appeal found that the lower court had erred in its assessment of the relevant principles and had not adequately balanced the considerations of the appellant's impecuniosity and the prospect of success of the appeal. The Court held that the lower court had failed to sufficiently take into account the appellant's impecuniosity, which was a critical factor in determining whether security for costs should be required. Consequently, the Court of Appeal concluded that the lower court had exercised its discretion incorrectly and dismissed the application for security for costs against the appellant.

In light of the above findings, the Court of Appeal dismissed the application for security for costs. The appellant was not required to provide security for costs against the respondent, and the lower court's order was set aside. The Court of Appeal emphasised the importance of correctly applying the relevant principles and adequately balancing the competing considerations when exercising the discretion to require security for costs.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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