FEDERAL COURT OF AUSTRALIA

Shumack v Secretary, Department of Health and Ageing [2005] FCA 538

PRACTICE AND PROCEDURE – appeal from Administrative Appeals Tribunal – security for costs – application against an individual – security not awarded

PETER JAMES SHUMACK v SECRETARY, DEPARTMENT OF HEALTH AND AGEING

ACD 43 OF 2004

GYLES J

21 APRIL 2005

SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The motion be dismissed.

2.      The applicant on the motion (the respondent to the proceeding) pay the costs of the appellant.

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an application for security for costs of an appeal which is to be heard in the near future by a Full Court.  The submissions for the applicant on the motion, the respondent to the appeal, have, as I said in the course of argument, very clearly set out the grounds which are relied upon and the background to the case and reference is made to a number of the authorities on these provisions. 

2                     There is a long practice that security for costs will not be ordered against a private individual on the basis of impecuniosity and I am grateful that my attention has been drawn, as was proper, to a recent decision of Tamberlin J which has once again given effect to that principle, Theo v The Secretary, Department of Family and Community Services [2005] FCA 436.  It is argued that, recognising that practice, the section of the rules nonetheless do not contain such a statutory limitation and that it would be appropriate in this case to take into account what is argued to be an appeal which could be described as having very little prospect of success. 

3                     In my view, there are difficulties with mixing up the two concepts.  If the appeal is hopeless and an abuse of process, then no doubt it could be struck out and I understand a motion along those lines has been listed at the time of hearing.  But I do not think that I can indirectly rule on that in the course of the security for costs application. 

4                     The general principle is that a claim by an individual which is arguable, either at first instance or on appeal, will not be stultified by reason of the grant of an order for security for costs where there is doubt whether that order can be met.  It seems to me that that is the case here.  If an order were made, it might well stultify an appeal which, at least at the moment, I have got to assume is arguable as it has not been struck out.  Therefore, whilst I can well understand the concern of the respondent in this matter, I feel that authority compels me to dismiss the motion.

5                     I dismiss the motion.  I order that the applicant on the motion and the respondent to the proceeding pay the costs of the appellant.

Associate:

Dated:              2 May 2005