FEDERAL COURT OF AUSTRALIA

Mark Foys v TVSN (Pacific) Limited [2000] FCA 1417

COSTS – application for security of costs for appeal – whether the court can take into account a prima facie amount outstanding in respect of the costs of proceedings at first instance – whether an appeal is a proceeding brought on a cause of action – whether an appeal constitutes a proceeding to review a decision based on a cause of action.

Federal Court of Australia Act 1976 (Cth) s4

Federal Court Rules O36 r6, O35 r6(2)

MARK FOYS PTY LTD v TVSN (PACIFIC) LIMITED

N635 of 2000

CONTI J

30 AUGUST 2000

SYDNEY

THE COURT ORDERS THAT:

1.         Security for the Respondent’s costs of the Appeal be assessed in the amount of $37,000.00 payable as to $18,500.00 by 15 September 2000 and the further $18,500.00 by 2 October 2000.

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

REASONS FOR JUDGMENT

1                     The Respondent to the original proceedings at the first instance who is the respondent to the presently pending appeal seeks an order for security for costs of the appeal.  Insofar as security for the costs of the appeal proceedings themselves are concerned the Registrar, Mr Tesoriero, has made an assessment of $37,000 by reference to the concept of party and party costs and in my opinion security for such sum of $37,000 but no more should be provided by the Appellant.

2                     That particular issue was debated on the last occasion, that is to say the issue as to security for costs on appeal and it was accepted by the appellant, Mark Foys, that Mr Tesoriero's proposed assessment of the costs of the appeal could be the subject of a legitimate order for security.  When I say an order for security, the order would be in the nature of a stay of the appeal proceedings unless and until the relevant security was provided by and within a time schedule which I will stipulate and I will come back to that form of order in a moment.

3                     The respondent also pressed for additional security representing in principle, the difference between the amount the subject of a bill of costs which has been propounded for assessment and if an assessment not be accepted then the amount would be that awarded on taxation.  Such amount the subject of the bill of costs to be assessed would be the sum of approximately $134,000 comprising a gross amount of $234,000 set out in the bill of costs less $100,000 which was already provided by way of security for the proceedings in the first instance.

4                     The first question arises is whether any provision by way of order for security for costs of an appeal can take into account an amount prima facie outstanding in respect of the costs of proceedings at first instance, here the sum of $140,000. Mr Green has put an argument in support of that proposition by reference to order 35 rule 6 of the Federal Court Rules which reads as follows:

“(1)     Where the Court makes an order for the dismissal of proceedings or for the dismissal of proceedings so far as concerns any cause of action or the whole or any part of any claim for relief, the Court may order that such dismissal shall be without prejudice to any right of the applicant or claimant to bring fresh proceedings or to claim the same relief in fresh proceedings.

(2)               Where:

(a)               the Court makes an order for the dismissal of proceedings so far as concerns any cause of action or the whole or any part of any claim for relief by any party;

(b)               the Court orders that party to pay any costs; and

(c)                before payment of the costs, that party brings against a party to whom the costs are payable further proceedings on the same or substantially the same cause of action or for the same or substantially the same relief;

the Court may stay the further proceedings until those costs are paid.”

In my opinion the language of the rule to the effect:

further proceedings on the same or substantially the same cause of action or for the same or substantially the same relief.

is inapposite to apply to the circumstance of an appeal by the applicant from the decision in the proceedings.  It is true that the expression proceedings includes an appeal unless the contrary intention applies, section 4 of the Federal Court of Australia.  However, order 35 rule 6 subrule 2 addresses the circumstance that the party subjected to a costs order in a proceeding brings further proceedings on the same or substantially the same cause of action or for substantially the same relief.

5                     It does not seem to me that this rule could apply in relation to an appeal such as in the circumstances here involved, at least for the following reasons:  Firstly it is an inapposite use of language to describe an appeal as a proceeding brought on a cause of action.  An appeal constitutes a proceeding to review a decision which is concluded based on a cause of action.

6                     Secondly, the relief sought in a proceeding at first instance relates to a cause of action which may result in an order for an injunction or damages or simply a declaration.  Whereas by way of contrast the relief sought in a proceeding in relation to an appeal is the setting aside of a judgment at first instance in which a cause of action has merged.  It is, as I have said before, inapposite to speak of an appeal as seeking relief on a cause of action.

7                     The third reason is that if TVSN’s contention is correct, the enigmatic situation would obtain to the effect that security could be ordered in relation to costs at first instance in circumstances of an appellant who was an unsuccessful plaintiff below, such as here, but not against an unsuccessful defendant below.

8                     If that construction be wrong, I would, as a matter of discretion, decline to have made any order for security by reference to any amount in excess of what has already been ordered by way of security for costs of the proceedings at first instance.  I would have taken the view as a matter of discretion that what was seen fit to be awarded or agreed to be paid by way of security for costs in the first instance should remain.  In the circumstance that a party has brought in a bill of costs for a greater sum has no bearing on what has constituted the proper quantification of the security below.

9                     I appreciate that Mr Green has invited me to look at a discounted figure in relation to the application for increased security for the cost below. I would not do so in principle for the reasons I have indicated, or in any event as a matter of discretion. I note that the matter for assessment of the bill of costs will come before the Registrar very shortly on 6 September 2000.  If judgment is subsequently entered for an amount which is assessed by Mr Tesoriero, the Registrar, or whichever other registrar attends to the matter, and the present respondent, TVSN, is content with that sum, then of course in the absence of a stay, TVSN would be at liberty to enforce against the appellant, Mark Foys, the additional sum which may have been assessed.

10                  On the other hand TVSN may be unhappy with the Registrar's assessment on a party and party basis and may seek taxation, that would be a matter for its own election.

11                  I assess security for the respondent's costs of the appeal in the sum of $37,000 payable as to $18,500 by 15 September 2000 and a further $18,500 by 2 October 2000.  I have filled in those sums in the short minutes order which I have signed and I formally make orders in terms of those short minutes bearing the date 30 August 2000.  Those short minutes will be placed with the papers.

Associate:

Dated:              9 October 2000