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 1374Parties: 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 1374Date 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
AppellantAND: 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
AppellantAND: STX PAN OCEAN CO LTD
Respondent
JUDGE:
JAGOT J
DATE:
23 MARCH 2011
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- Case
- [2011] FCA 254
- Decision Date
CaseChat Overview and Summary
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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