Waters v The Federal Court of Australia and the Judges Thereof
[2015] HCATrans 347
[2015] HCATrans 347
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S95 of 2015
B e t w e e n -
NATALIE ELIZABETH WATERS
Plaintiff
and
THE FEDERAL COURT OF AUSTRALIA AND THE JUDGES THEREOF
First Defendant
COMMONWEALTH OF AUSTRALIA (AUSTRALIAN TAXATION OFFICE)
Second Defendant
Directions hearing
GAGELER J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 18 DECEMBER 2015, AT 9.45 AM
Copyright in the High Court of Australia
MR P.E. KING: If your Honour pleases, I appear for the plaintiff, Ms Waters. (instructed by Gells Lawyers)
MR G.R. KENNETT, SC: May it please the Court, I appear with MR T.M. GLOVER for the second defendant. (instructed by DLA Piper Australia)
HIS HONOUR: Thank you.
MR KING: Your Honour, this is the first return of the summons in relation to proceedings by way of application for judicial review of a decision in the Federal Court.
HIS HONOUR: Yes.
MR KING: Both parties have served affidavits and, in accordance with a letter from the Registrar, have exchanged submissions. In our case, we filed submissions in September in accordance with what we understood to be the application of the rule. After getting the letter from the Registrar, we then filed a skeleton submission, hopefully to assist the Court, on the 11th, which was the same date as my friend’s submission.
HIS HONOUR: I have those documents.
MR KING: Thank you, your Honour. We have prepared a reply to my friend’s submission, which we have not filed – bearing in mind that we did not have leave to do that, and we understood today was a directions hearing, but we are in your Honour’s hands in that regard.
HIS HONOUR: I am prepared to proceed if you are.
MR KING: Yes, we have no difficulty with that.
HIS HONOUR: Very well.
MR KING: Can I hand to your Honour our reply, together with the working copy.
HIS HONOUR: Thank you. These are very elaborate documents, Mr King.
MR KING: The reply, your Honour?
HIS HONOUR: All of them. The outline of submission is much longer than would be permitted in an appeal. The skeleton argument is longer than would be permitted in a Full Court hearing, and so is the reply.
MR KING: The reply, I think, is five pages, your Honour. The skeleton argument, I thought, was less.
HIS HONOUR: Anyway, let us deal with it. We had better deal first with the evidence, I think.
MR KING: Yes, thank you, your Honour. The application was filed on 27 May, and I ask your Honour respectfully to refer to that.
HIS HONOUR: Yes.
MR KING: Then, supported by affidavit of Ms Waters ‑ ‑ ‑
HIS HONOUR: Yes, as I understand it, the second order of mandamus is not being pressed.
MR KING: We do not press that, having regard to some observations of the Chief Justice in a paper on this topic, which, it seems, my friend agrees with. We have noted that in our reply.
HIS HONOUR: I am sorry, Mr King, I have cut you off.
MR KING: Yes. There is Ms Waters’ affidavit of 27 May, which attaches the decisions and sets out the background. Ms Waters brought a claim, your Honour, for damages for workplace bullying in the Federal Court, and for contravention of the Disability Discrimination Act 1992 ‑ ‑ ‑
HIS HONOUR: Yes, I have read the decisions.
MR KING: It is not in dispute that that is a genuine and arguable claim ‑ ‑ ‑
HIS HONOUR: Let us just deal with the formalities of the evidence first, Mr King.
MR KING: Thank you. That affidavit goes to that.
HIS HONOUR: Mr Kennett, do you have any objection to that affidavit?
MR KENNETT: Your Honour, there are parts of the affidavit that are argumentative and more akin to submissions ‑ ‑ ‑
HIS HONOUR: They are obvious, I think.
MR KENNETT: ‑ ‑ ‑but I do not want to take up time with objections.
HIS HONOUR: Very well. I read the affidavit and I admit the exhibits. That is the totality of your evidence, Mr King?
MR KING: It is.
HIS HONOUR: Mr Kennett, do you have evidence?
MR KENNETT: Yes, I read the affidavit of Donna Maree Trembath, sworn on 11 December, and I tender the exhibits thereto, which I hope your Honour has.
HIS HONOUR: Yes.
MR KENNETT: Exhibit DMT-1 is an affidavit that was before the primary judge. Exhibit DMT-2 is – in case we need them, and I am not sure that we do – the complete copies of the transcripts of which your Honour has excerpts in the plaintiff’s material.
HIS HONOUR: Yes, I am not sure we do either.
MR KENNETT: I will not press the tender of that exhibit at the moment.
HIS HONOUR: Well, this is your opportunity.
MR KENNETT: Your Honour, I will tender that exhibit out of an abundance of caution.
HIS HONOUR: Mr King.
MR KING: No objection.
HIS HONOUR: Very well. I read the affidavit, and I admit the two exhibits.
MFI:Affidavit of Donna Maree Trembath, sworn on 11 December 2015, and exhibit DMT‑1 and exhibit DMT‑2 annexed thereto
HIS HONOUR: Now, Mr King, I have read the two decisions ‑ ‑ ‑
MR KING: Thank you, your Honour.
HIS HONOUR: I have looked carefully at your shorter document, styled the “Skeleton Argument”. I have looked – but not with the same degree of scrutiny, I confess – at the very long outline of submissions, and I have not yet read your reply, obviously.
MR KING: Thank you, your Honour. Your Honour, there appears to be no real dispute that, having regard to the operation of section 33(4B)(a) of the Federal Court Act, the due process has been filed and adopted. The question is whether or not the plaintiff can make out her case for the exercise of that jurisdiction in this case. It comes back to certiorari.
There is a significant error in my learned friend’s submission regarding the issue of certiorari. It is put in the defendant’s case that we need to show excessive jurisdiction in order to obtain a writ of certiorari. We say that is in error. We have given the citation in Kirk’s Case at paragraph 6, which demonstrates that what is required is either an error of law on the face of the record or, alternatively, a jurisdictional error. In the particular case, we say that there is both, in three respects, which we have outlined in the submissions, and which we asked your Honour to consider in the reply, which we adopt respectfully.
HIS HONOUR: Is there any case in which, in proceedings purportedly commenced in the original jurisdiction of the High Court under section 75(v) of the Constitution, this Court has ordered that a writ of certiorari quash a decision of a Federal Court for error of law on the face of the record?
MR KING: The decision which we have mentioned, the recent decision which was dealt – and these comments were dealt with at the time of the directions hearing by Justice Heydon in the matter of Edwards v Santos. To answer that question, my understanding is yes, that is the case. For example, we have also mentioned the Stevedoring Board Case where Justice Dixon said if it can be demonstrated that a federal judicial institution – in that case, it was an industrial relations tribunal, rather like Kirk’s Case itself in relation to a New South Wales tribunal – had made an error of law, or had not addressed the issues correctly, then that was a basis for intervention by way of certiorari or a prohibition.
HIS HONOUR: You are treating, of course, the reasons for decision as part of the record for this purpose?
MR KING: We are, and we do not understand that to be in dispute from my friend’s point of view.
MR KENNETT: I am not sure about that.
MR KING: Well, we will wait and hear what he has to say about that.
HIS HONOUR: All right.
MR KING: The position is that the three issues that we raise are raised both with respect to the way in which the application for leave to appeal was conducted, and then the adoption of the test of the primary judge in two respects. Just briefly, your Honour, our first proposition is that the Full Court erred in dealing with the leave application on the basis of the test of this Court in Jackamarra – that is to say, adopting what was called the “rough and ready” test – in relation to one aspect of an extension of time application. Your Honour may recall the federal Western Australian matter that came up to this Court on an entirely different issue.
HIS HONOUR: Yes.
MR KING: We say that to adopt the “rough and ready” approach, which the majority did in this matter, really deprives our clients of a genuine and realistic assessment of the leave application in accordance with principles that were discussed in Dranichnikov, and other judicial review proceedings because the longstanding authority in leave applications in the Federal Court, the filter test, is set out in Decor, and it is a twofold test, not a “rough and ready” test.
HIS HONOUR: Yes.
MR KING: It is not a commodities arbitration, your Honour, where the commodities dealer is appointed arbitrator, walks into the warehouse and touches the wheat bags and says “this is grade 1” or it is not. It is a judicial proceeding which obligates the Federal Court to do two things: firstly, as required by section 24(1A) of the Federal Court Act, to consider the reasons and orders of the court below in the light of the draft notice of appeal, and to determine whether or not there is a sufficiently arguable case; and secondly, to determine whether or not the interests of justice warrant a grant of appeal.
You cannot, we say, give genuine consideration of those issues by looking at two out of 12 draft grounds, which is what Justice Flick did with the agreement of Justice North, and adopting a “rough and ready” approach. That is the lazy man’s approach to justice, with the greatest respect to his Honour. Indeed, paragraph 12 of the judgment is interesting because his Honour ends up saying – perhaps it is 11 – “most probably” – these are his Honour’s exact words – if leave had been granted, Ms Waters would have failed.
To say “most probably” if leave had been granted, my client would have failed, is a concession that she may have succeeded. There was not that genuine consideration that is required in these matters, such as Dranichnikov endorsed. I appreciate that the learned authors, Aronson and others, have laboured long and hard over precisely what Dranichnikov means, but Justice Basten in Azriel’s Case and others in this Court since have said it means at least a genuine and real consideration of the arguments put to the Tribunal on the merits. We say that the learned majority did not do that.
My friend puts in his argument Justice North agreed with Justice Katzmann. But with the greatest respect, Justice North in one paragraph agreed with the reasons of Justice Flick, but then said, rather Delphically, “in the way” that Justice Katzmann has looked at the matter. He has expressly agreed with Justice Flick, and we say that is the majority position. It is interesting that this Waters decision of the Full Court refusing leave has been applied at least three times since March of this year.
We ask, your Honour, is it in the interests of justice in the Federal Court where the appeal filter, which has the effective result of ending the proceedings, is based on a “rough and ready” approach. We say the High Court never thought that its decision in Jackamarra would be applied in that way, and it is only in this Court that that issue can be set to right.
It comes back to an issue of access to justice too, your Honour, we respectfully say. They are worried about the number of cases – less cases being filed in the Federal Court. One of the reasons may be that it is just very, very hard for people to get through the front door, and that ought not to be the case. Courts are for ordinary people like Ms Waters, a tax officer wrongfully dismissed, she says, through workplace bullying, and who has been prevented from running her case. That is the first point. I have set out the relevant matters, and I will not delay your Honour ‑ ‑ ‑
HIS HONOUR: Have you covered in what you have just said to me the gist of what is contained in your written reply?
MR KING: I have, yes.
HIS HONOUR: All right, thank you.
MR KING: The second argument, your Honour, relates not to the process adopted by the Federal Court – just before I leave that, your Honour, can I just make one other point about the process and the oddness of the way the matter was dealt with? When the leave application came before the single judge in this case, as they usually do – Justice Katzmann – her Honour thought the matter was sufficiently important to refer to a Full Court.
Ms Waters has had to – slightly excited that a single judge thought the matter necessary for a Full Court, and then leave not even granted – it really does open up that observation of Justice Heydon in Edwards that there may be a real question as to the power of a Commonwealth Parliament to have passed section 33(4B)(a) in the first place. We do not make that point, but we do say that does reflect upon the issues of access and open justice to which we have referred, and I know this Court has had much to say about.
The second argument we have, your Honour – the second proposition – refers not to the process, but rather to the substance of the reasons. When one looks at the reasons, they look more like a disposition of the appeal than a question as to whether or not leave should be granted or not. Leaving that issue to one side, the question is was the court right to adopt the primary judge’s view that relative impecuniosity was a proper touchstone for disposition of the security for costs application.
If we ask ourselves, your Honour, what does “relative impecuniosity” mean – James Packer is relatively impecunious compared to the Commonwealth. That is perhaps an absurd comparison, but “relative” invites comparisons. My friend’s argument in response says what the judge meant was “relevant”, not “relative” – “relevant” in relation to the amount that might be required to secure the ATO’s costs against its former employee. But that is really a question‑begging exercise, because what is relevant really comes back to what is relative.
So, in our respectful submission, to begin to open up a possibility of arbitrary and open‑ended discretions in these matters where courts have laboured long and hard and successfully over the years to require proof by the security of costs applicant of an inability – not unwillingness – to pay security for costs is undermined.
It was necessary, your Honour, for the primary judge to adopt this test of relative impecuniosity – suggested, by the way, by the ATO to him, which he embraced – because the Commonwealth had no proof of impecuniosity. All it had was one paragraph in the affidavit of Ms Trembath, which has now been referred again to your Honour ‑ ‑ ‑
HIS HONOUR: Yes.
MR KING: ‑ ‑ ‑the AGS officer. They thought that Ms Waters was not impecunious, but because it appeared she had in her unsuccessful Supreme Court action, where she had initially tried to get a damages case against the ATO up, and it was dismissed summarily and then embraced by the Federal Court – because that was unsuccessful, and she had appeared to have had difficulty getting a lawyer, that meant that was the only evidence they had of her impecuniosity.
When that was struck out, and the Full Court accepted our proposition that his Honour had wrongly admitted that evidence, the Full Court said it did not matter anyway because the effective burden of proof – I think the word used was “evidentiary” burden of proof – was upon the security for costs respondent. If the test was relative impecuniosity, necessarily there was a shifting of the burden of proof, but it was said by the Full Court that was only an evidentiary shift, not a legal shift, of the burden. We say in this context that is a distinction without a difference.
Let us take a good old‑fashioned bailment case, where you have goods on a carrier. They arrive damaged, and the burden of proof shifts from the delivery party endorsee back to the carrier. The carrier proves that they had not done anything wrong during the voyage; it shifts back to the other party. The other party then proves negligence on the part of the carrier; it shifts back to the carrier.
Now, in each of those cases, the way in which judges have looked at the question of the shifting burden of proof is not an evidentiary way but it is ultimately a legal obligation, because in bailment – and we say in the present matter – the onus of proof, as Justice Lindgren held in Knight’s Case which we have cited, throughout was upon the security for costs applicant.
Once the evidence was struck out, rightly, of impecuniosity based on Ms Waters not having a lawyer in the Supreme Court, then we say that the onus was upon the Commonwealth to demonstrate that Ms Waters, who owned her own apartment – albeit subject to a mortgage – was in truth unable to pay any costs order that might be made in the Commonwealth’s favour, and they did not do that.
HIS HONOUR: What, they should have issued subpoenas, should they?
MR KING: They never issued subpoenas, no notice to produce – just put it up to the court.
HIS HONOUR: All right.
MR KING: Now, the third point, your Honour, is this, and we say that is a ‑ ‑ ‑
HIS HONOUR: Again, do I take it that you have ‑ ‑ ‑
MR KING: We have spelt this out.
HIS HONOUR: ‑ ‑ ‑ told me orally the gist of what is in your reply?
MR KING: I have. Now, your Honour, we have noted there some observations of Justice Gaudron and Justice Brennan ‑ ‑ ‑
HIS HONOUR: In your ‑ ‑ ‑
MR KING: Not in our reply, but in our initial submissions, outline and the skeleton.
HIS HONOUR: Yes.
MR KING: To the effect of the well‑known proposition which was considered recently by this Court in Barker, that it is not for primary judges to adopt novel propositions, especially in areas of received practice and procedure. They must adopt stare decisis. This Court is where that consideration may or may not occur, but it was wrong to adopt novel propositions, and jurisdictionally wrong, we say – at least an error of law.
HIS HONOUR: This is just completing your submissions on the second ground, is it?
MR KING: That is right.
HIS HONOUR: Yes.
MR KING: Then, if I can come to the third point, this is a mandatorily irrelevant consideration taken into account, and seems to have been the dispositive consideration against Ms Waters, at least in the Full Court, and probably by the primary judge. His Honour proceeded upon a failure to dislodge the shifted burden of proof.
On the third point, it is quite a simple point, again, we hope, and a legal point, and it is this; it is a considerations point. That is to say, it was not only irrelevant, but mandatorily irrelevant, for the Federal Court to have regard to an unassessed costs debt in the prior unresolved proceedings in the Supreme Court as the reason for tipping the balance against the applicant; the plaintiff in this case.
Why do we say that, your Honour? We say that because firstly, there are some decisions by a number of judges, including Justice French when he was in the Federal Court, that demonstrate it is only when you have assessed costs, not unassessed costs, in another court giving rise to a debt that that may be a relevant consideration. It is not so much the fact that it relates to costs; it is the fact that it relates to a debt.
On the question of the anterior position in another court, we respectfully say that the Legal Profession Act in its operation, and section 355 of the 2004 Act is the first one – I think it is 196 in the 2015 Uniform Law now, although it is actually easier on the respondent and they still do not pass the test. All they had to do after Ms Waters disputed the costs bill was to assess it, or at least prepare a bill of costs and send it to her, but they never did that. They wrote to her twice – once, when she exercised her right of appeal from the primary judge summarily dismissing her case in the Supreme Court; and twice, when she brought the Federal Court proceedings – and then did nothing. The provisions are very clear. We have prepared a compilation bundle, your Honour, to assist the Court. It is a red colour.
HIS HONOUR: Yes, I have the compilation bundle. To what proposition is this material going?
MR KING: This is the third proposition that the court had regard to an irrelevant consideration. The reason it is irrelevant, in our respectful submission ‑ ‑ ‑
HIS HONOUR: An irrelevant consideration you put as the untaxed or unassessed costs in the previous proceeding, in the Supreme Court proceeding?
MR KING: Yes, and what was said to be Ms Waters’ unwillingness to discuss payment of those costs, albeit unassessed. If your Honour looks behind tab 3 in our compilation bundle, your Honour will see the 2004 Act. We have not put the whole of 354 – I will come back to one aspect of that. Section 355 ‑ ‑ ‑
HIS HONOUR: I am sorry, what tab did you say?
MR KING: Tab 3. Does it not line up with your Honour’s ‑ ‑ ‑
HIS HONOUR: No, I have got a couple of 3’s, as usual, but I have got the correct “3” now, thank you.
MR KING: Section 355, your Honour:
If an application for a costs assessment is made in accordance with this Division –
That is the only way it can be made –
(a)the costs assessment must take place without any money being paid into court on account of the legal costs the subject of the application, and
(b)the law practice must not commence or maintain any proceedings to recover the legal costs until the costs assessment has been completed.
The point is reinforced by the Uniform Law, which is the next page in our bundle, section 194:
A law practice –
and that includes the AGS under the Judiciary Act, Part VIIIB, Division 3 –
must not commence legal proceedings to recover legal costs from a person unless a bill has been given for the legal costs and the bill complies with the requirements of this Law and the Uniform Rules.
That pushes the matter back a little bit from the costs certificate, but nonetheless, in this case, neither a bill nor a certificate has been obtained. It is, we say, either expressly or, by clear implication, mandatorily irrelevant to have regard to an unassessed costs bill in a different court.
We say also that is the fairness of the matter here. It is true, unrepresented, Ms Waters did start her action for damages against the respondent relying upon, I think, section 42 of the superannuation legislation of the Commonwealth, thinking that it was still possible for her to bring a common law claim. It was not. Justice Basten pointed out she really needed to go to the Federal Court, and she did. It was not unreasonable for her firstly to dispute it, and section 354(3), which is in our bundle, contemplates that process of assessment of costs only begins once the assessor is told that there is no prospect of settlement of the costs issue.
There is nothing wrong with somebody saying “I am not prepared to settle this costs issue unless you go through the process of firstly giving me a bill of costs, what it is – nice of you to tell me, but let us look at it”, and that is fair, and then “Let us get it assessed”. That is what the whole process of assessment is about. We think that is what Justice French was referring to in a decision that we have referred to in our notes.
Your Honour, we respectfully submit that it was an irrelevant consideration to have regard to that. Interestingly enough, there is a decision from the Full Court only just the other day – and I do apologise, I have not got copies of this; it has only just been brought to my attention – called Vata‑Meyer v The Commonwealth, in which the court pointed out in saying that we cannot refer costs issue off to other courts – in that case, the Federal Circuit Court – because we have to decide our own costs issues, and noted that section 43(2) of the Federal Court Act in referring to costs meant costs in that court. We think that section 56, the provision relating to security for costs in proceedings, must refer to proceedings in that court, not proceedings in another court. We think, therefore, the statute itself mandates the principle that we have outlined. I do apologise; I will provide a copy to my friend. I am going to hand to your Honour the only copy I have got.
HIS HONOUR: Well, perhaps you could allow him to look at it momentarily, and then hand it to me.
MR KING: Your Honour, for those three reasons of principle, we respectfully put that there is both an error of law in the face of the record, and indeed a jurisdictional error, such that a certiorari should issue. On the issue of certiorari, the Supreme Court of the United States issues certs all the time. That does not mean this Court does ‑ ‑ ‑
HIS HONOUR: No, no, but of course ‑ ‑ ‑
MR KING: The reason it does it is the very reason that has occurred in this case, that the Congress, or Parliament, has prevented an appeal to this Court; no right to a special leave application from the decision.
HIS HONOUR: The procedure in the United States is that what we call “special leave” is there called “certiorari”. It is certiorari to remove.
MR KING: Certiorari to be moved.
HIS HONOUR: To remove proceedings into the court.
MR KING: Into the court.
HIS HONOUR: It is just a different process.
MR KING: It is a different process. We are saying, your Honour, it is not surprising, but what we do, just to answer the question your Honour raised with me so that I can give your Honour a considered response – if I could put in a note about other examples, I would do that by close of business on Monday. It is a matter for your Honour.
HIS HONOUR: I am not currently inclined to grant any liberty in that respect.
MR KING: Yes. It is a matter for the Court.
HIS HONOUR: Now, what did you want me to read in the judgment in Vata‑Meyer?
MR KING: Just the reference to the fact that when the court dealt in that case – although it was a security for costs application, it was a question as to whether or not the question of costs could be referred to another court and whether or not section 43 of the Federal Court Act permitted such a course. I think it is on the last page; the judges held – interestingly enough, Justice North and Justice Katzmann were in that decision – that that was not permissible and it must be dealt with in that court itself.
Now, I appreciate that is not a parallel situation of the present, but it does demonstrate, we say, the force of the principle that we have put, that it was irrelevant to have regard to what might happen if due process was followed in another court in relation to costs. Those are our submissions.
HIS HONOUR: Yes, thank you. I will just take a moment to read your document.
MR KING: Thank you, your Honour.
HIS HONOUR: I do not need to hear from you, Mr Kennett.
This proceeding was commenced by an application for an order to show cause filed in the original jurisdiction of the High Court on 27 May 2015 naming the Federal Court of Australia and its Judges as the first defendants, and the Commonwealth of Australia as the second defendant.
The background to the application can, for present purposes, be succinctly stated. The plaintiff was employed by the Australian Taxation Office between 2000 and 2004. Towards the end of that time she was diagnosed as having a disability. In 2014, she commenced a proceeding against the Commonwealth in the Federal Court in which she alleged, amongst other things, contravention of the Disability Discrimination Act 1992 (Cth).
The Commonwealth filed an interlocutory application in that proceeding seeking security for costs. The application was heard and determined by Justice Griffiths, who ordered that the plaintiff provide security in the amount of $30,000. The Full Court of the Federal Court, comprising Justices North, Flick and Katzmann, refused the plaintiff leave to appeal from that decision of Justice Griffiths. The medium neutral citation for the decision of Justice Griffiths is [2014] FCA 1107. The medium neutral citation for the decision of the Full Court is [2015] FCAFC 46. I do not propose to summarise either decision, save to note that the decision of Justice Griffiths was a discretionary decision on a matter of practice and procedure and that the Full Court considered there to have been no sound basis for concluding that his Honour’s discretion had miscarried.
The application for an order to show cause in this Court is framed to seek a writ of mandamus directed to the Federal Court to compel the Full Court of that Court to grant the plaintiff leave to appeal and to allow her appeal from the decision of Justice Griffiths, but the plaintiff has indicated through her counsel, Mr King, that the application for mandamus is not pressed. No issue having been raised by the Commonwealth as to whether the invocation of the original jurisdiction of this Court by seeking mandamus was colourable, I proceed to consider the balance of the application, which is framed to seek writs of certiorari directed to the Federal Court to quash both the decision of the Full Court and the decision of Justice Griffiths at first instance.
To the extent that the application seeks a writ of certiorari directed to the decision of Justice Griffiths, it is dismissed in accordance with rule 25.03.3(a) of the High Court Rules 2004 (Cth) in the exercise of my discretion, on the basis that it is inappropriate for the original jurisdiction of this Court to be invoked to challenge a decision which was amenable to appeal, subject to leave, particularly in circumstances where the plaintiff, as applicant for such a writ of certiorari, has sought and was refused that leave to appeal.
To the extent that the application seeks a writ of certiorari directed to the decision of the Full Court, it is to be dismissed in accordance with the same rule, on the basis that the application fails to disclose an arguable basis for the relief sought. It is sufficient, in that respect, that I conclude that the grounds of the application, as amplified in the extensive written submissions of the plaintiff, and also as articulated in oral submissions by Mr King, cannot be sustained on a fair reading of the reasons for decision of the Full Court. Nothing in my reasons should be taken to endorse the notion that any of those grounds, if established, would constitute a want or excess of jurisdiction on the part of the Full Court so as to justify the quashing of its decision by a writ of certiorari. Nor should my reasons be taken to endorse the notion that certiorari is available to quash a decision of the Federal Court, merely on the basis that an error of law appears on the face of the reasons for decision of that court.
The plaintiff’s first ground is that the Full Court, in purporting to apply well‑known principles articulated in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 to 399, applied the wrong test to the determination of whether or not the decision of Justice Griffiths was attended by sufficient doubt to warrant it being reconsidered by the Full Court. The gravamen of the complaint is that the Full Court, by express reference to the decision of two members of this Court in Jackamarra v Krakouer (1998) 195 CLR 516 at 522, adopted what is styled a “rough and ready” test which caused the Full Court then to fail to undertake a principled analysis of the decision of Justice Griffiths.
The only reference to Jackamarra in the Full Court was in the reasons for judgment of Justice Flick. As I read his Honour’s decision, he stopped short of equating what was said in Jackamarra to the Dart Industries principles which he had previously correctly identified. His Honour appears to have used the terminology of which the plaintiff complains only to emphasise that an application for leave to appeal is not ordinarily the occasion for the same level of detailed scrutiny of the merits as would be appropriate were leave to be granted.
None of the members of the Full Court can be said to have failed to give careful consideration to each of the plaintiff’s proposed grounds of appeal from the decision of Justice Griffiths. Justice Flick went on to explain that he gave separate consideration to each of the plaintiff’s grounds of appeal and concluded that none of them had any real prospect of success. Justice Katzmann, with whom Justice North agreed, undertook a review of the plaintiff’s proposed grounds of appeal in detail, which she laid out in her reasons for judgment, and came to the same conclusion. In the circumstances, I can see no merit in the plaintiff’s argument that the Full Court applied a wrong test to the determination of the grant of leave to appeal, or that it failed to give proper consideration to the merits of the application for leave in accordance with the principles identified in Dart Industries.
The plaintiff’s second ground arises from the way in which the Full Court dealt with arguments advanced by the plaintiff concerning statements made by the trial judge to the effect that he accepted, on the evidence before him, that the plaintiff was “relatively impecunious” and that she had not discharged her onus of establishing that her relative impecuniosity was caused by the second defendant’s conduct. The plaintiff characterises the Full Court as having endorsed the primary judge’s adoption of what the plaintiff describes as a novel test of “relative impecuniosity” when determining whether or not to order security for costs, opening up the possibility, so it is said, of arbitrary and open‑ended discretionary decision‑making undermining well‑established principles concerning security for costs. It is also said that the Full Court erred in permitting an evidentiary and a legal onus to be placed upon a respondent to a security for costs application, who is the moving party in the substantive proceedings “to demonstrate that [he or she] is able to meet an adverse costs order”.
The plaintiff’s submissions, in my opinion, misunderstand the manner in which the expression “relative impecuniosity” came to be used by the primary judge, and how it was interpreted by the Full Court. As explained by Justice Katzmann, in particular, in the Full Court, the term “relative” appears to have been used to denote the relationship between the financial position of the plaintiff and her ability to pay the second defendant’s costs should she fail in the proceeding. It was not used, as I read it, and as the Full Court read it, to introduce a “novel test”. Rather, it was used by the primary judge in the course of having regard to a factor which has been traditionally considered relevant to the exercise of the discretion to order security for costs.
I cannot accept that the Full Court impermissibly shifted any “legal onus” as regards the plaintiff’s impecuniosity. I consider Justice Katzmann to have been correct in her assessment of Justice Griffiths’ statement of which the plaintiff complains, and I do not accept the submission of the plaintiff that the distinction Justice Katzmann drew between a legal and a persuasive onus is a distinction without a difference.
The third and final ground of the application for an order to show cause is that the Full Court erroneously endorsed the primary judge’s acceptance, as a consideration relevant to the exercise of his discretion to order security for costs, of the fact of costs having been ordered in previous proceedings in the Supreme Court of New South Wales in circumstances where those costs had not been assessed and no actionable debt existed, and that the Full Court further erroneously endorsed the primary judge’s acceptance as a relevant consideration of the plaintiff’s unwillingness to engage in discussions concerning those unassessed costs.
At first instance, Justice Griffiths relevantly stated that he considered that the relevant issue was not whether a debt immediately arose upon the Supreme Court having made the costs order, as opposed to after costs had been assessed, but rather the reasonableness of the plaintiff’s refusal to enter into discussions with the second defendant with a view to agreeing an amount and thereby obviating the need for those costs to be assessed. His Honour went on to explain how he regarded that conduct of the plaintiff as relevant to the assessment to be made in the exercise of his discretion to order security for costs.
Upon it being put to the Full Court that his Honour had thereby taken into account an irrelevant consideration or irrelevant considerations, Justice Katzmann endorsed the language of Justice Griffiths, to which I have referred, and went on herself to say this:
[O]ne of the matters appropriate for consideration in an application for security for costs is whether there are any particular discretionary matters peculiar to the circumstances of the cases . . . This was such a matter. The applicant’s failure or refusal to enter into discussions with the respondent about payment of its costs in the Supreme Court proceedings was far from irrelevant to the question of whether this Court should require her to put up security for the respondent’s costs in the present proceedings, particularly after the High Court dismissed her application for special leave. It could signify an inability or an unwillingness to pay. The weight to be attached to this circumstance was entirely a matter for his Honour.
The plaintiff’s submissions do not raise any reason to doubt the correctness of her Honour’s analysis, or of the principles implicit in it.
In the result, I am not satisfied that the plaintiff has made good any of the errors which she alleges to have infected the reasoning of the Full Court.
The orders I will make are as follows:
1.The application for an order to show cause is dismissed.
2.The plaintiff is to pay the defendants’ costs.
I will now adjourn to noon.
AT 10.37 AM THE MATTER WAS CONCLUDED
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