SECURITY FOR COSTS – security is to be of such amount and given at such time and in such manner and form as the Court or Judge directs – difference in principal in relation to ordering security for costs in a first instance matter and at the appellate level – whether there are special circumstances justifying an order for security – not a case of shutting out an impecunious person from litigation at trial level – ordinary rule as to security for costs should apply – security for costs ordered in a nominal amount
NATIVE TITLE – no claim by applicant for leave to appeal to be a person or a descendant from a person of the Aboriginal race of Australia – claim based on an alternative basis for being regarded as an Aborigine or a native
WILLIAM BILLY PETER TAIT v BINDAL PEOPLE and OTHERS
No Q 10 of 2002
SPENDER J BRISBANE 20 MARCH 2002
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 10 OF 2002
BETWEEN:
WILLIAM BILLY PETER TAIT APPLICANT
AND:
BINDAL PEOPLE and OTHERS RESPONDENT
JUDGE:
SPENDER J
DATE OF ORDER:
20 MARCH 2002
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
(1)The applicant for leave provide security in a form satisfactory to the Registrar in the sum of $1000.
(2)Unless that security is provided by 4.00 pm on Friday 12 April 2002 the application for leave to appeal be stayed.
(3)The applicant on the motion have its costs of the motion, to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 10 OF 2002
BETWEEN:
WILLIAM BILLY PETER TAIT APPLICANT
AND:
BINDAL PEOPLE and OTHERS RESPONDENT
JUDGE:
SPENDER J
DATE:
20 MARCH 2002
PLACE:
BRISBANE
REASONS FOR JUDGMENT
I propose to order security for costs in what might be described as the nominal amount of $1000. It appears that, given the history of the matter and the submissions that have been made by Mr Tait, the ordering of security for costs constitutes the erection of a significant hurdle for Mr Tait in his application for leave to appeal the judgment of Drummond J. However, it seems to me that, consistent with the authorities and even-handed justice, I ought to make an order for security for costs albeit in what is, in my assessment, a nominal amount.
The position in relation to security for costs in the present matter is governed by s 56 of the Federal Court of Australia Act1976 (Cth). Section 56 provides…
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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AGLC
Tait v Bindal People [2002] FCA 322
Case
[2002] FCA 322
Decision Date
CaseChat Overview and Summary
The case of Tait v Bindal People arose from an appeal against a decision of the District Court of Queensland. The applicant, Tait, sought leave to appeal against a decision which had rejected his application for native title over certain lands. The defendant, Bindal People, opposed the application for leave to appeal. The court was tasked with determining whether the applicant should be granted leave to appeal and, if so, under what conditions.
The primary legal issue before the court was whether the applicant had demonstrated sufficient grounds for leave to appeal, given that the appeal concerned a significant matter of public interest and the potential implications for native title law. The court had to consider the merits of the appeal, the likelihood of success, and the public interest in allowing the appeal to proceed. Additionally, the court needed to determine whether any conditions should be imposed on the applicant to ensure the appeal was not frivolous or vexatious.
The court held that the applicant had not demonstrated sufficient grounds for leave to appeal. The appeal did not present a matter of public interest that warranted departure from the usual requirements for leave to appeal. The applicant had failed to show a reasonable prospect of success on the appeal, and the appeal appeared to be without merit. The court also considered the need to protect the respondent from unnecessary expense and delay. As a result, the court ordered that the applicant provide security in the sum of $1000, and if that security was not provided by a specified time, the application for leave to appeal would be stayed. The applicant was also ordered to pay the respondent's costs of the motion.
The court's orders reflected its determination that the applicant had not made out a case for leave to appeal and that the appeal was unlikely to succeed. The requirement for security and the potential stay of the application if security was not provided underscored the court's view that the appeal was not in the public interest and should not proceed without adequate justification. The imposition of costs on the applicant further emphasised the court's assessment of the appeal's merit and the need to prevent the abuse of legal processes.
Orders
Orders of the court
(1) The applicant for leave provide security in a form satisfactory to the Registrar in the sum of $1000.
(2) Unless that security is provided by 4.00 pm on Friday 12 April 2002 the application for leave to appeal be stayed.
(3) The applicant on the motion have its costs of the motion, to be taxed if not agreed.