Thomson v STX Pan Ocean Co Ltd

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FEDERAL COURT OF AUSTRALIA

Thomson v STX Pan Ocean Co Ltd [2011] FCA 254

Citation: Thomson v STX Pan Ocean Co Ltd [2011] FCA 254
Appeal from: STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd (No 2) [2010] FCA 1240
STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd (No 3) [2010] FCA 1374
Parties: DAVID JOHN THOMSON v STX PAN OCEAN CO LTD
File number(s): NSD 1767 of 2010
Judge: JAGOT J
Date of judgment: 23 March 2011
Catchwords: COSTS – security for costs of appeal – whether appellant should provide security for costs – whether appellant impecunious – whether order for security for costs would stifle appeal while allowing cross-appeal to proceed – relevance of fact that appellant was defendant in proceeding below – whether estimate of costs of appeal excessive
Legislation: Federal Court of Australia Act 1976 (Cth)
Cases cited: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1
Clack v Collins (No 1) [2010] FCA 513
Cowell v Taylor (1885) 31 Ch D 34
John Caines Management Pty Ltd v Adrenaline International Powersports Pty Ltd [2004] FCA 747
Moore v Macks [2007] FCA 509
Paton v Campbell Capital Limited [1993] FCA 449
Skyring v Sweeney [1999] FCA 61
Smith v Madden (1946) 73 CLR 129
Soh v Commonwealth of Australia [2008] FCA 1524
STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd (No 2) [2010] FCA 1240
STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd (No 3) [2010] FCA 1374
Date of hearing: 17 March 2011
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 24
Counsel for the Appellant: Mr G Carolan
Solicitor for the Appellant: Worcester & Co, Solicitors
Counsel for the Respondent: Mr P King
Solicitor for the Respondent: Hicksons Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1767 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

DAVID JOHN THOMSON
Appellant

AND:

STX PAN OCEAN CO LTD
Respondent

JUDGE:

JAGOT J

DATE OF ORDER:

23 MARCH 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1Within 21 days of the date of these orders the appellant provide security for the respondent’s costs of the appeal in the amount of $55,000 in a form acceptable to the Registrar of the Court.

2Failing compliance with order 1, the appeal be stayed pending further or other order.

3Costs of the notice of motion filed on 15 February 2011 be costs in the cause.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1767 of 2010

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

DAVID JOHN THOMSON
Appellant

AND:

STX PAN OCEAN CO LTD
Respondent

JUDGE:

JAGOT J

DATE:

23 MARCH 2011

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Details
Case
[2011] FCA 254
Decision Date

CaseChat Overview and Summary

The parties involved in this case are Thomson, the appellant, and STX Pan Ocean Co Ltd, the respondent. The dispute originates from an earlier proceeding in which Thomson was the defendant. The case was heard in the Federal Court of Australia, where Thomson is now appealing the decision of the lower court. The primary issue before the court was whether Thomson, as the appellant, should be required to provide security for the costs of the respondent's appeal. This was a critical consideration, given Thomson's status as an impecunious party. Additionally, the court had to assess whether the imposition of such an order would effectively stifle Thomson's appeal, while permitting the respondent's cross-appeal to proceed unimpeded. The court also needed to consider the relevance of Thomson's prior role as the defendant in the original proceeding and whether the estimate of the appeal costs was excessive.

The court examined the principles governing security for costs in the context of an appeal and the factors that should be considered in determining whether such security is necessary. It reviewed the appellant's financial situation and the potential impact of the security order on the appellant's ability to pursue the appeal. The court found that given the nature of the appeal and the potential costs involved, it was appropriate to require Thomson to provide security for the respondent's costs of appeal. The court was satisfied that the amount of $55,000 was a reasonable estimate, considering the complexity and length of the appeal. The court also determined that the order would not unduly stifle Thomson's appeal, as the respondent's cross-appeal would still proceed.

In light of the above, the court made several orders. Firstly, it required the appellant to provide security for the respondent's costs of appeal within 21 days from the date of the order. Secondly, if the appellant failed to comply with this order, the appeal would be stayed pending further or other order. Lastly, the court ordered that the costs of the notice of motion filed on 15 February 2011 be costs in the cause.

Orders

Orders of the court

1 Within 21 days of the date of these orders the appellant provide security for the respondent’s costs of the appeal in the amount of $55,000 in a form acceptable to the Registrar of the Court.

2 Failing compliance with order 1, the appeal be stayed pending further or other order.

3 Costs of the notice of motion filed on 15 February 2011 be costs in the cause.

Note:

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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