Rabel, Andrew Frank v Whitehorse City Council

[1997] FCA 1226

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - Application for SECURITY FOR COSTS - Relevance of settlement offer - Chances of success - Evidence of impecuniosity - Lateness of the application

RABEL V WHITEHORSE CITY COUNCIL
VI 1707 OF 1996

JUDGE:        NORTH J
PLACE:        MELBOURNE
DATE:          4 JULY 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 1707  of   1996

BETWEEN	ANDREW FRANK RABEL APPLICANT
AND:	WHITEHORSE CITY COUNCIL RESPONDENT
JUDGE(S):		NORTH J
DATE OF ORDER:		4 JULY 1997
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

1. The application is dismissed

1. Costs reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 1707 of 1996

BETWEEN	ANDREW FRANK RABEL APPLICANT
AND:	WHITEHORSE CITY COUNCIL RESPONDENT

JUDGE(S):	NORTH J
DATE:	4 JULY 1997
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR: This is an application for security for costs brought by the Whitehorse City Council (the Council) in respect of a review of a decision of Judicial Registrar Parkinson, given on 26 March 1997, that the application by Mr Rabel for unlawful termination under s 170EA of the Workplace Relations Act 1966 (Cth) be dismissed.  The application for security for costs was filed on 30 June 1997.  No explanation has been given for the delay between March and 30 June in the bringing of the application.  The review is listed for trial before me commencing next Tuesday, 8 July 1997. 

In support of the application, Mr Staindl, who appeared as counsel for the Council, argued that the Council has had the benefit of the decision by the Judicial Registrar and, consequently, there is a good chance of success for the Council on the review.  Mr Staindl pointed to the fact that, prior to the proceedings before the Judicial Registrar and again yesterday, the Council had offered Mr Rabel an amount of money equal to six months' remuneration, which was the maximum Mr Rabel could expect from the Court by way of compensation if he were to succeed in the review. This offer was made with a denial of liability and without any offer to reinstate Mr Rabel to the position he previously held.

I do not see the making of the offer, in itself, as relevant to the question of the grant of security for costs. It is incumbent upon the Council to demonstrate, in respect of both the claim for reinstatement and compensation, that it is likely to succeed on the review. It is not possible for me, on the material so far put before me, to determine whether the review is likely to succeed. So far as the merits are concerned, I give due weight to the fact that the Judicial Registrar has dismissed Mr Rabel's application.

Mr Staindl said, properly, in the light of the evidence, that the evidence of impecuniosity was not strong.  Mr Rabel himself gave viva voce evidence that his wife has access to $10,000, if needed, and that he expects that she would lend him the money to meet an order for costs if he asked. Thus, Mr Rabel's evidence severely damages the initial basis of the Council’s application. Mr Rabel was concerned that the figure of $10,000 seems unreasonably high. I pointed out to Mr Rabel that it was no more than a very general guide, based upon an estimate given in an affidavit sworn by the solicitor for the Council of the likely costs of the review.

It is well established that the making of an order for security for costs is a discretionary matter and that the discretion is wide and unfettered.  It is, ultimately, a question of seeking to do justice between the parties in all the circumstances. There are two telling points in favour of Mr Rabel’s opposition to the application.  The first is that he has sworn to an ability to raise the funds to pay the costs, if necessary.  The second point is the lateness of the application - its proximity to the trial date, the time that elapsed between the making of the decision and the institution of the review, and the bringing of the application for security for costs. Mr Rabel has real difficulties in dealing with the review if it is adjourned. Not surprisingly, he is unable to raise any significant amount for security for costs before the start of the trial. In all the circumstances, it would be quite unjust to order Mr Rabel to pay security for costs.  I therefore dismiss the application brought by the Council and reserve the costs.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice North

Associate:

Dated:            21 October 1997

The applicant appeared in person.
Counsel for the Respondent:	Mr D. Staindl
Solicitor for the Respondent:	Gary Katz & Associates
Date of Hearing:	4 July 1997
Date of Judgment:	4 July 1997