FEDERAL COURT OF AUSTRALIA

Tait v Bindal People [2002] FCA 322

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

Federal Court of Australia Act 1976 (Cth), s 56

Native Title Act 1993 (Cth)

Cowell v Taylor (1885) 31 Ch D 34, applied

Wiest v Director of Public Prosecutions and Anor (1988) 23 FCR 472, applied

Bethune v Porteous (1892) 18 VLR 493, applied

Ciappina v Ciappina (1983) 70 FLR 287, cited

WILLIAM BILLY PETER TAIT v BINDAL PEOPLE and OTHERS

No Q 10 of 2002

SPENDER J

BRISBANE

20 MARCH 2002

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.

REASONS FOR JUDGMENT

1                     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.

2                     The position in relation to security for costs in the present matter is governed by s 56 of the Federal Court of Australia Act 1976 (Cth). Section 56 provides that security is to be of such amount and given at such time and in such manner and form as the Court or Judge directs. As to whether security for costs should be ordered, Cowell v Taylor (1885) 31 Ch D 34 at 38, a case of more than 100 years ago, sets out the fundamental principle:

“The general rule is that poverty is no bar to a litigant, that, from time immemorial, has been the rule at common law. There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of Her Majesty's Courts, and so an insolvent party is not excluded from the Courts, but only prevented, if he cannot find security, from dragging his opponent from one Court to another”.

3                     What that passage demonstrates is that there is a difference in principle in relation to the ordering of security for costs in a first instance matter and the ordering, or the consideration of the ordering, of security for costs where one is at the appellate level. The difference is that, at the appellant level, there has already been a determination adverse to the person against whom security for costs is sought and, if it be shown that there is a substantial risk that even if successful the respondent to the application for leave to appeal, or to an appeal, will be deprived of his costs, such an outcome would clearly be unjust.

4                     In a sense, it would be giving to a person who has been on the receiving end so to speak of a determination by the courts a free hit at great cost to the other party in the appeal proceedings. That consideration, it seems to me, is also reinforced by the judgment of Gummow J in Wiest v Director of Public Prosecutions and Anor (1988) 23 FCR 472. That case involved appeals against extradition with penal consequences. Such consequences were clearly very relevant considerations, but discretionary reasons moved the Court to order security for costs. Such discretionary considerations, which were particularly noted by Gummow J, included the delay between the filing of the papers and the bringing of the applications for security. His Honour referred to a particular circumstance which is relevant here, and that is that the applicant for security has a judgment in its favour. There was a reference by Gummow J to Bethune v Porteous (1892) 18 VLR 493, again an old case. In that case, Hood J said (at 494):

“the reason underlying the numerous and varying cases in which appellants have been ordered to give security will be found in the injustice to a successful litigant that may be caused if he be compelled to contest the matter for a second time without a probability of obtaining his costs if ultimately successful.”

That really is the fundamental question of justice behind my decision to order security for costs.

5                     Mr Tait has been candid in his statements that he is, within the relevant meaning of impecunious, for these purposes impecunious. It is also true that there has not been put before the Court a detailed setting out of the costs likely to be incurred on the appeal. For instance, there is to be found no outline of likely costs referred to by Neaves J in the case to which extensive reference has been made by both sides on this application for security for costs, Ciappina v Ciappina (1983) 70 FLR 287. In that case Neaves J, in the passage which is set out in the written submissions of counsel for the Bindal People, is merely, in my view, re-stating the principle from Cowell v Taylor which I have earlier set out. Neaves J (as he was in 1983) said at 290:

“It is now well established that the impecuniosity of an appellant resulting in an inability to pay the costs of an appeal should that appeal not be successful amounts to a special circumstance justifying an order for security.”

6                     That passage is directed to whether there are special circumstances at a threshold level justifying an order for security. It is the case, as Mr Tait has correctly pointed out, that every case has to be looked at in all its circumstances. Here, while he has contended that there are serious questions which he wishes to raise, in my assessment the ground of appeal based on Mr Tait's assertion of Aboriginality borders on the frivolous. Nowhere does he claim to be a member of the Aboriginal race of Australia within the necessary context of the Native Title Act 1993 (Cth), nor does he claim to be a person or a descendant from a person of the Aboriginal race of Australia. His ground for claiming native title is based not on that circumstance, but on what he wishes to argue as an alternative basis for being regarded as an Aborigine or a native.

7                     Another aspect of his application for leave to appeal is based on a terminated permit to occupy. That interest is a determined interest and it is difficult to see how that could have attempted to have been relied on in the proceedings which led to the order of Drummond J.

8                     The primary basis for the order of Drummond J was his Honour's finding that there had been a wilful deception of the Federal Court concerning whether Mr Tait had or had not withdrawn an application. On 11 December 2001, in light of the documentary evidence which seems to be in Mr Tait's own hand and which was before the Court, Drummond J described Mr Tait's actions in September as deliberately misleading the Court. I would prefer not to base any order for security for costs on that assessment or any assessment of the merits of the purported application for leave.

9                     What I do regard as important is the principle to which I have referred, namely that this is not a case of shutting out an impecunious person from litigation at the trial level. It is really seeing that justice is done to the Bindal People, in circumstances where they are being compelled to contest a matter for the second time and there is a probability, in the absence of security, that they would not be able to obtain their costs if they are again successful.

10                  I do not think the time within which to provide security is going to be determinative of the matter, that if given more time the nominal or token sum that I have indicated will be able to be obtained. What I propose to do is to order 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.

11                  On the question of costs it seems to me that, notwithstanding that there has been a non-compliance on the part of the Bindal People in respect of directions given by the Court in relation to this matter, the ordinary rule ought to apply and that the Bindal People should have their costs of the motion, to be taxed if not agreed. I should point out, and this picks up a matter that Mr Tait earlier referred to, that this application for security for costs is interlocutory and, in the absence of an order by the Court, the provisions of O 62 of the Federal Court Rules are such that taxation is not to be undertaken until the conclusion of the matter.

12                  Notwithstanding this observation, the orders of the Court are as I have indicated in relation to the provision of security and the staying of the application if that security is not provided to the satisfaction of the Registrar at the time that I have indicated. By way of costs I order that:

(3) The applicant on the motion have its costs of the motion to be taxed if not agreed.

Associate:

Dated: 22 March 2002