FEDERAL COURT OF AUSTRALIA

Kiefel v State of Victoria [2014] FCA 604

THE COURT ORDERS THAT:

1.    The interlocutory application for security for costs, filed by the respondent on 6 May 2014, is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        James Kiefel (the appellant) is 14 years old. He suffers from autism spectrum disorder and language disorders, both expressive and receptive. His symptoms of autism spectrum disorder mean he is prone to anxiety, avoidance of things he does not like and periods of physical aggression. His speech is limited, he can have loud outbursts in a variety of circumstances and he has great difficulty concentrating or maintaining attention. Although it was the subject of dispute at trial, it seems that it is accepted he has at least a mild intellectual disability. He is currently attending a school specifically for children with autism in Indiana, United States of America (USA), and has been there since July 2011.

2        His mother, Mrs Wendy Kiefel, commenced proceedings in this Court as his litigation representative, in which it was alleged that, between the period 2005 to 2010, the respondent (the State) engaged in unlawful discrimination against James at several government schools, contrary to various provisions of the Disability Discrimination Act 1992 (Cth) (DDA) and the Disability Standards for Education made pursuant to the DDA.

3        On 20 December 2013, Tracey J dismissed his applications. An appeal was lodged against that decision on 3 February 2014. An amended notice of appeal was filed on 16 April 2014. The appeal is yet to be heard, but since argument on this interlocutory application the parties have been notified the appeal will be heard in the August 2014 sittings.

4        By interlocutory application filed with the Court on 6 May 2014, the State of Victoria (the respondent) seeks an order that Mrs Kiefel provide security for its costs of the appeal, in the following terms:

• On or before 14 days from the date of this order the Appellant’s Next Friend, Wendy Kiefel, provide security for the Respondent’s costs of the appeal in the sum of $52,943.24 (including GST) to be paid into Court or by any other method ordered by the Court or agreed between the parties.

• Failing compliance with order 1 above, the appeal is stayed subject to further order.

5        For the reasons set out below, I have decided it is not appropriate to make an order for security for costs. The application will be dismissed.

EVIDENCE ON THE APPLICATION

6        In support of its application, and pursuant to the requirement set out in r 36.09(2), the State relies on an affidavit of Ms Alexandra Jane Cuthbertson, sworn 6 May 2014. In that affidavit, Ms Cuthbertson sets out details of searches undertaken by the State on 14 February 2014, in order to identify any assets Mrs Kiefel, or her husband Mr Peter Kiefel, may hold in Australia. Ms Cuthbertson deposes:

The above searches show that the Appellant’s Next Friend currently has no registered interest in real property within Australia, but that Mr Kiefel holds a registered interest in a property located at 15 Pakenham Street, Blackburn Victoria (the Blackburn property).

The searches show that the Blackburn property was previously held jointly by the Appellant’s Next Friend and Mr Kiefel. On 27 March 2011, an application was made to transfer the Appellant’s Next Friend’s interest in the Blackburn property to Mr Kiefel for “natural love and affection”. The transfer was completed on 6 May 2011. The underlying proceeding to which this appeal relates was commenced by application filed in the Federal Magistrates Court on 5 February 2010. Pursuant to orders made on 23 December 2010, the proceeding was transferred to the Federal Court of Australia. The Respondent filed its defence to the Applicant’s claim on 21 April 2011.

7        Ms Cuthbertson deposes that, on 17 March 2014, the State’s solicitors wrote to the appellant’s solicitors, indicating the State’s intention to seek security for costs, and requesting details of Mrs Kiefel’s interest in the Blackburn property, and any other assets, including personal property, in Australia. No response was received from the appellant’s legal representatives, and a follow-up letter was sent by the State on 11 April 2014. On 15 April 2014, Mr Joseph Ridley, solicitor for the appellant, sent an email to the State’s solicitors, stating:

• Our client does not hold any interest in 15 Pakenham Street, Blackburn Victoria (the Blackburn property);

• Our client does not hold any other interests in any other real property in Australia;

• Our client does not hold any interests in any other assets in Australia.

8        In her evidence, Ms Cuthbertson states that, on 17 April 2014, a letter was sent to the appellant’s solicitors requesting that Mrs Kiefel provide security for the State’s costs in the amount of $52,943.24 (including GST). Ms Cuthbertson’s affidavit annexes a series of email correspondence between the parties’ legal representatives, dated 28 April 2014, regarding the respondent’s request for security for costs. In email correspondence to Ms Rachel Nicolson, Mr Ridley states:

I confirm that my client is not in a position to forward the sum of $52,943.24 to your office being your request for security of costs.

…

I confirm … that my client does not have any interests in the property in which you inquired into by letter dated 17 March 2014.

9        Ms Cuthbertson’s evidence is that the appellant and Mrs Kiefel are both currently residing outside Australia, in the USA, and have been residing there for some time. Ms Cuthbertson annexes to her affidavit a copy of a letter sent to the State’s legal representatives from the appellant’s then solicitors on 2 June 2011, seeking an adjournment of a directions hearing in the first-instance proceedings (to which the State ultimately consented, and for which consent orders were made by the Court on 6 June 2011). The letter states:

(a) Relocation of the Keifel Family to the USA

The Applicant, his parents, and his sister (a child with Asperger’s syndrome) will travel to the USA at the end of June 2011. The Applicant has been accepted into a specialist school, with 35 students, in Indiana. This school will provide him with 40 hours per week of an Applied Behavioural Analysis (Verbal Behaviour) program. At present, the Applicant is enrolled in the school for a period of 12 months. Depending upon his progress, the Applicant may return to Australia in July 2012.

10        The possible return to Australia in mid-2012 did not occur. Ms Cuthbertson’s affidavit also annexes an affidavit, sworn by Mrs Kiefel on 14 May 2012. This affidavit was relied upon by Mrs Kiefel to seek a further adjournment of the trial until January 2013, in order to minimise disruption to James’ participation in his educational program in the USA. In that affidavit Mrs Kiefel states:

Jimmy [this is Mrs Kiefel’s reference to James] and I arrived in the USA on 9 July 2011. We have remained in the USA since that date.

11        The request for a further adjournment was refused by Tracey J at a directions hearing on 16 May 2012. Mrs Kiefel returned to Australia for the trial, which took place during the period September-December 2012.

12        Ms Cuthbertson deposes:

It is my understanding that the Appellant’s Next Friend returned to the USA following the trial and both the Appellant and Appellant’s Next Friend are currently resident in the USA.

13        By her lawyers, Mrs Kiefel informed the Court she did not propose to adduce any evidence to resist the State’s interlocutory application. She also informed the Court through her lawyers that she did not intend to file any written submissions in accordance with directions the Court had given.

14        Instead, at the hearing of the interlocutory application counsel appeared on behalf of James and Mrs Kiefel and sought leave to make oral submissions. Despite non-compliance with the Court’s orders as to the filing of written submissions, which left both the State and the Court without any notice of the position taken by Mrs Kiefel on this application, leave was granted for oral submissions to be made. Counsel, who informed the Court he had drafted the amended notice of appeal, indicated he had been briefed only the night before. He apologised to the Court and there is no basis in the evidence for any personal criticism of him. It is apparent that many of the unsatisfactory features of the way in which this proceeding has been conducted on behalf of James continue unabated.

15        The Court was also provided with a copy of the judgment of the primary judge in respect of the costs of the trial, which had been handed down on 30 April 2014. In that, the primary judge ordered that Mrs Kiefel pay the State’s costs on a party–party basis from 17 June 2010 to 10 August 2012, and from 11 August 2012 to judgment on an indemnity basis. His Honour refused the State’s application that the costs should be paid by Mrs Kiefel’s current solicitors.

THE ROLE AND FUNCTION OF A LITIGATION REPRESENTATIVE

16        Not only because some attention was paid in submissions to the power of the Court to make orders for security as to costs against a litigation representative, but also because of the nature of this proceeding, it is necessary to say something about the role and function of a litigation representative generally, and specifically in proceedings under legislation such as the DDA.

17        In NSW Insurance Ministerial Corporation v Abualfoul (1999) 94 FCR 247; [1999] FCA 433, Sackville J traced the history of the concept of litigation on behalf of minors through a “next friend”, noting that the early writings (such as Daniell’s Chancery Practice (7th ed, 1932)) explained the practice at least partially by reference to the proposition that, since a minor could not bind himself or herself, or incur liability for costs, the law did not allow a minor to bring a proceeding. At [27]-[29], his Honour set out the historical basis for this “well-established” principle:

Under the general law, because of an infant’s inability to bind himself or herself, or to incur liability for costs, the infant was incapable of bringing an action without the assistance of some other person responsible to the court for the proper conduct of the suit: p 116. This person was known as the next friend (or “prochein amy” in the earlier cases), apparently because he or she was usually a near relative of the plaintiff. If an action was instituted by an infant without a next friend, the defendant could apply to have the action dismissed: p 116. The limitation on the capacity of infants did not extend to matters of substantive entitlement or liability, since at common law an infant could sue and be sued: Haines v Leves (1987) 8 NSWLR 442 (CA) at 449 per Street CJ. The limitation on capacity was procedural.

One reason for requiring an infant plaintiff to sue by a next friend was so that there would be a person answerable to the defendant for the costs of the litigation, although the defendant could waive this benefit: Daniell’s Chancery Practice, p 116; Ex parte Davis (1901) 1 SR (NSW) 187 at 189. The next friend was liable for all costs incurred in the actions brought by the infant, until the infant attained his or her majority: Bligh v Tredgett (1851) 5 De G & SM 74; 64 ER 1024; Simpson on the Law of Infants (3rd ed, 1909), 391. The next friend could be attached for the non-payment of the costs of an action in which the defendant obtained a verdict: Radford v Cavanagh (1899) 15 WN (NSW) 226. However, the next friend was ordinarily entitled to recover the costs from the infant’s estate (if there was one), provided he or she acted bona fide: Pritchard v Roberts (1873) LR 17 Eq 222.

The next friend was regarded as an officer of the court appointed to safeguard the interests of the infant: Rhodes v Swithenbank (1889) 22 QBD 577 at 579 per Bowen LJ; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 113-114 per Williams J; Ex parte Davis. The conduct of the proceedings was in the hands of the next friend: Rhodes v Swithenbank at 578, per Lord Esher MR. The next friend was not, however, a party to the action: Pink v J A Sharwood & Co Ltd [1913] 2 Ch 286 at 289 per Eve J. The next friend derived his or her authority from the court, not the infant, and could be removed if, for example, he or she acted improperly or had an interest adverse to that of the infant: Stephenson v Geiss [1998] 1 Qd R 542 at 557 per Lee J; Simpson on the Law of Infants, pp 384-385.

18        It can be seen from this extract that, although one purpose of appointing a litigation representative concerned the law’s lack of recognition of the legal capacity of a minor, there was also a fiduciary aspect to the role. That fiduciary aspect is emphasised by the authorities, which recognise a litigation representative as an officer of the Court who is susceptible to removal by the Court. It also inheres in the rules which prevent a person acting as a litigation representative if that person has an interest in the proceeding that is adverse to the interest of the person under a legal incapacity: see Federal Court Rules 2011 (Cth) r 9.64 (Federal Court Rules). The Court’s mandatory supervision over settlements in favour of a person with legal incapacity is a further indication that a litigation representative is not seen as having unfettered control over a proceeding brought on behalf of such a person. These provisions are consistent with the protective jurisdiction courts exercise over persons who lack capacity. The parens patriae jurisdiction in state courts remains important: see Re Beth [2013] VSC 189 at [115]-[127] per Osborn J and the cases there referred to. As a statutory court, this Court has similarly been given protective powers and functions in the way in which it deals with litigants who lack legal capacity, and it may be that further powers would be implied if circumstance arose. That is not a matter which need be pursued further in this case, but it is important in my opinion to note the aspects of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and the Federal Court Rules that recognise a protective function in the Court.

19        In L v Human Rights and Equal Opportunity Commission (2006) 91 ALD 258; [2006] FCAFC 114 at [23], a Full Court of this Court observed:

The law relating to the appointment of a litigation guardian for a person who lacks the requisite capacity to conduct litigation or the capacity to give instructions to a person conducting litigation on their behalf, has a long history. Its origins can be traced back to the prerogative power of the Crown to protect those in need of protection on account of mental incapacity.

20        The Full Court referred to the following observations by Kennedy LJ in Masterman-Lister v Brutton and Co (Nos 1 and 2) [2003] 1 WLR 1511, that “[i]n the context of litigation, rules as to capacity are designed to ensure that plaintiffs and defendants who would otherwise be at a disadvantage are properly protected”.

21        Although the appointment of a litigation representative ensures there is a person available to incur liability for any costs awarded against the person with legal incapacity, in my opinion the protection of the rights and interests of that person is the principal function. Litigation representatives conduct and give instructions in proceedings only because a person with legal incapacity cannot do so. They do not serve their own interests in this role. In Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 113, Williams J quoted with approval the following passage from Rhodes v Swithenbank (1889) 22 QBD 577 at 579 per Bowen LJ:

The only reason that the next friend of an infant is entitled to bind the infant in matters connected with the cause is that he is the officer of the court to take all measures for the benefit of the infant in the litigation in which he appears as next friend. One of the purposes of appointing a next friend is to have a person on the record who is personally liable for costs. But that is not the only purpose for which a next friend is appointed. He is appointed principally to institute and carry on the proceedings on behalf of the infant because the law considers that an infant is incapable of asserting or protecting his rights or forming a judgment as to the necessity of applying for protection or redress to the tribunals of the country. …

22        See also Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200 at 203-204 per Hodgson J; Australia and New Zealand Banking Group Ltd v Dzienciol (by his guardian ad litem Dzienciol) [2001] WASC 305 (S); Fernando (by his tutor, John Ley) v Minister for Immigration and Citizenship (No 9) [2009] FCA 833 at [15] per Siopis J.

23        In proceedings brought on behalf of a person who is both a minor and who has a permanent disability, such as James, the responsibilities of a litigation representative, and the protective function of the Court, are acute. When, in addition, the proceeding concerns allegations of unlawful discrimination, there is considerable tension between the nature and subject matter of the proceeding and the making of an order for security for costs.

24        Further, I have referred to the prohibitions in the Federal Court Rules to the effect that a litigation representative must not have an interest in the proceeding adverse to that of the person with legal incapacity. There is a question whether, if an order for security is made against Mrs Kiefel, the prospect of choosing between a stay of the appeal and committing in advance significant funds (whether of her own, or her family’s) to the appeal places her in a position of conflict with her son’s interests. While it may be one thing to consider and accept possible exposure to a costs order after trial as an incident of becoming a litigation representative for one’s child, the process of having to find or raise funds in advance and pay them out might be said to create a potential conflict of interest. It may place a parent in an invidious position in terms of deciding whether the funds she is ordered to pay should be allocated from the family’s resources to James’ appeal, rather than to other expenses. Matters other than James’ own interests in the continuation of the appeal may inevitably come into that decision-making. That is no criticism of Mrs Kiefel, rather it is a recognition of the reality of being required to produce a significant sum of money in a short time, in advance of the appeal and so as to avoid a stay.

AN ORDER AGAINST JAMES KIEFEL?

25        Although the terms of its application sought an order against Mrs Kiefel, in oral submissions counsel for the State went further and submitted that the State also sought, in the alternative, an order for security for costs against James. It seemed this submission was made to accommodate the possibility the Court might find there was no power under s 56 of the Federal Court Act to order a litigation representative to provide security.

26        Putting to one side how it might be said such an order could be made against a 14-year-old boy with autism when the child cannot comprehend, let alone himself take steps to satisfy, the order said to bind him (if indeed it could bind him), it is clear that a distinct set of considerations might arise in construing s 56 as operating against such a person. No more need be said about this submission given I take the view that s 56 empowers the Court to order security for costs be provided by a litigation representative.

APPLICABLE POWER

27        Section 56(1) of the Federal Court Act confers discretionary power upon the Court to order an appellant in an appeal under Div 2 of Part III of the Federal Court Act to give security for costs that may be awarded against the appellant.

28        Rule 36.09(1) of the Federal Court Rules provides:

A party may apply to the Court or an order that:

(a) the appellant give security for the costs of the appeal, and for the manner, time and terms for giving the security; and

(b) the appeal be stayed until security is given; and

(c) if the appellant fails to comply with the order to provide security within the time specified in the order — the appeal be stayed or dismissed.

29        Rule 36.09(2) of the Rules provides that the respondent must file with any such application an affidavit setting out the facts in support of the application.

30        The State properly identified at least a question whether the Court has power under s 56 to order provision of security by a litigation representative, when that person is not a party to the proceedings. The State submits that, because the litigation representative controls the proceeding, and can be liable for costs, the power in s 56 should be construed as including a power to order a litigation representative to provide security. The State relies on the decision of the Western Australian Court of Appeal in Farrell (by her next friend Waugh) v Royal Kings Park Tennis Club (Inc) [2007] WASCA 173, where security was ordered against a next friend under that Court’s rules in relation to an appeal, where the next friend was an undischarged bankrupt.

31        In Farrell [2007] WASCA 173, the Court was first concerned with the existence of the power to award costs at all against a next friend. Buss JA noted the “general rule” articulated by Sackville J in NSW Insurance 94 FCR 247; [1999] FCA 433 as justified by the considerations Sackville J set out. Buss JA noted (at [31]) that, if the next friend has acted properly in the proceedings, he or she will be entitled to an indemnity from the plaintiff or appellant. He also considered the fact that a next friend has the conduct of the proceedings was significant in construing the costs discretion in the Supreme Court Act 1935 (WA) as extending to the award of costs against a next friend. In relation to the exercise of a power to order security, his Honour did not undertake any explicit analysis of that and it seems to me his Honour saw the exposure to an order for security for costs as flowing implicitly from exposure to a general order for costs at the conclusion of the proceeding.

CONSIDERATION

The appropriate approach in principle

32        Like the costs power itself, the Court’s power under s 56 is widely expressed. It is closely linked to the Court’s general costs power and I see no reason to construe s 56 in a way which introduces discordance between the established approach to the costs direction in s 43 of the Federal Court Act. There is nothing in the text, context or purpose of either provision which suggests Parliament intended to constrain the discretions in s 43 or s 56 so as to place a litigation representative appointed under the Federal Court Rules in a different position in terms of potential exposure to costs to a party who had the conduct of a proceeding. A variety of factors may well mean the discretions are differently exercised, but the power exists.

33         The power conferred on the Court by s 56 to order payment of security for costs is a “wide power”, which “must be exercised judicially, but that is the only relevant limitation”, and “each case must depend on its own circumstances”: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 at 3-4.

34        The potential chilling effect of requirements to provide security for costs on individual litigants are well recognised, and the impediment which such orders could otherwise impose on access to justice means, at first-instance level, an individual impecunious litigant will rarely be ordered to provide security.

35        The State of Victoria contended there was a different approach generally taken on appeal and there are authorities which support that proposition. One explanation is that the judgment under appeal, representing the exercise of the litigant’s right to access the court, is presumed to be correct: see Kennedy v McGeechan [1978] 1 NSWLR 314 at 315; Fletcher v Commissioner of Taxation (1992) 37 FCR 288 at 292 per Hill J.

36        Many authorities, and the State’s submissions, refer to a case from the 19th century, Cowell v Taylor (1886) 31 Ch D 34, where Bowen LJ said (at 38):

The general rule is that poverty is no bar to a litigant, that, from time immemorial, has been the rule at common law, and also, I believe, in equity. 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.

37        It might be thought that a statement such as this is taken from a time where the law’s performance on access to justice issues was less than admirable. For example, it was not until 1882 in England that a married woman was under general law entitled to own property, transact against it, or sue in her own name to enforce her rights in relation to such property in the courts: see Married Women’s Property Act 1882 (UK). In Australia, similar provisions recognising the property rights of married women were first enacted in Tasmania and South Australia in 1883, with the other states following, some much later: see Married Women’s Property Act 1883 (Tas); Married Women’s Property Act 1883-4 (SA); Married Women’s Property Act 1884 (Vic); Married Women’s Property Act 1890 (Qld); Married Women’s Property Act 1892 (WA); Married Women’s Property Act 1893 (NSW).

38        For my own part and with respect to those who take a different view, I am not persuaded by an authority such as this that there should necessarily or generally be a different approach taken on appeal. Nor am I persuaded that some kind of presumption is to be applied on an appeal where an appellant is said to be impecunious, which seemed to be the import of the State’s submissions. There is no authority binding on me which compels such an approach. The circumstances which obtained in litigation in the 19th century are too far removed from those of the 21st century for dicta such as this to be applied too literally. That is particularly so where there is, as here, a right of appeal. That right of appeal is not of any lesser quality than a right to issue proceedings in the first place. The task of a court on appeal by way of rehearing being the correction of error (see Branir v Owston Nominees (No 2) (2001) 117 FCR 424; [2001] FCA 1833 at [22] per Allsop J, and the cases cited therein), access to an appellate court is a central aspect of the administration of justice. More so, it might be said, where a litigant under a legal incapacity is concerned.

39        In Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [24], Gleeson CJ, Gummow and Kirby JJ observed:

mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence. In part, it was to prevent and cure the miscarriages of justice that can arise from such mistakes that, in the nineteenth century, the general facility of appeal was introduced in England, and later its colonies.

40        Orders for security for costs are capable of interfering with the free exercise of that right both at an individual level and at a more general level because they are capable of being seen as a deterrent to the exercise of the right. When the applicant for security is a regular or repeat litigant in a particular court, or a particular jurisdiction, as is the case here, the possibility of a deterrent effect is greater.

41        In Dye v Commonwealth Securities Ltd [2012] FCA 992 at [26], in a proceeding considering applications for security for costs in two appeals from two separate proceedings heard together, Emmett J described some of the considerations which might be relevant to whether an order for security for costs should be made on an appeal:

The relevant considerations include, at least, the following matters:

(a) the prospects of success for the appeals;

(b) the risk that an order for costs will not be satisfied;

(c) whether the making of an order for security would be oppressive insofar as it would stifle a reasonably arguable claim;

(d) whether impecuniosity of an appellant arises out of the conduct that is the subject of complaint in the relevant proceeding;

(e) whether there are any aspects of public interest that weigh in the balance against granting security; and

(f) whether there are any other particular discretionary matters peculiar to the circumstances of the case.

42        There is no doubt these considerations can relevantly inform the exercise of the power. Where the third and fifth factors set out by Emmett J are present, their combination might carry some weight against the ordering of security: see Cameron’s Unit Services Pty Ltd v Kevin R Whelpton & Associates (Australia) Pty Ltd (1986) 13 FCR 46 at 50, 52 per Burchett J. There is a burden however, on the party resisting security to show that the making of an order to provide security for costs would stultify the proceeding (or appeal): see Madgwick v Kelly (2013) 212 FCR 1; [2013] FCAFC 61 at [81] per Allsop CJ and Middleton J.

43        Accepting the broad discretion in s 56 is not constrained by lists of factors or considerations, like many other discretionary powers to be exercised by a Court in the conduct and management of a proceeding or an appeal, the touchstone may be summarised as fairness. In Madgwick 212 FCR 1; [2013] FCAFC 61 at [92], Allsop CJ and Middleton J identified two components of fairness in the exercise of the s 56 discretion — fairness as to whether security should be ordered, and then fairness as to the amount. Their Honours referred (at [82]) with approval to the reasons of Hodgson JA in Dae Boong International Company Pty Ltd v Gray [2009] NSWCA 11, where his Honour used fairness as the touchstone. Dae Boong [2009] NSWCA 11 involved an application for security pursuant to s 1335(1) of the Corporations Act 2001 (Cth), and Madgwick 212 FCR 1; [2013] FCAFC 61 involved an application in a class action proceeding, so the circumstances were different to those in the present appeal. The differences in circumstances do not, in my opinion, mean that it is inappropriate to see fairness as a relevant touchstone in the exercise of the s 56 discretion on this application.

44        There are authorities which describe allowing an impecunious appellant to proceed on an appeal without paying security as giving that appellant a “free hit” (see Skyring v Sweeney [1999] FCA 61 at [6] per Spender J; Tait v Bindal People [2002] FCA 322 at [3] per Spender J). Yet there are large numbers of appeals conducted in this Court every year where the appellant is impecunious and would, if the descriptions in those authorities were applied, be given a “free hit”. Many of those appeals might be thought to enjoy little prospects of success. However, neither this Court nor respondents approach these appeals as if they are a “free hit” for the appellant because no security for costs is ordered. Thus, it is not the existence of impecuniosity, nor the fact of having lost at first instance and having appealed, nor the prospects of success on the appeal, which are the driving forces behind those appeals running through to their conclusion without an application for security for costs. Rather, an appeal in this Court is as of right and is treated as such, and this Court’s appellate processes are allowed to run their course. Frequently in such circumstances the respondent is a government respondent or public authority.

45        To restrict reliance on principles of access to justice to trial level, in my opinion, fails to accord to the appellate process (where it is of right) its fundamental role in the administration of justice. For my own part, and with respect to those who take a different opinion, I prefer to avoid the characterisation of appeals by impecunious appellants as a “free hit”.

46        The practical difference between the large numbers of appeals which run through to their conclusion in the usual way, and the circumstances in which observations have been made about the considerations which inform the exercise of the power to order security for costs, is first and simply the fact of an application for security. This compels the Court to examine the considerations which might be relevant to the exercise of the discretionary power to order security. In that sense, the unilateral decision-making of a respondent determines the occasions on which the Court must consider awarding security for costs, rather than any particular features of a given appeal. Why particular respondents (whether at trial or on appeal) make the decision to seek security for costs is not something which is generally revealed on the evidence in such applications. There may be any number of forensic, policy or strategic reasons, which are matters confidential to those respondents. Once such a unilateral decision is made, the Court is then required to confront the circumstances in which the power should appropriately be exercised. The lack of uniformity or consistency about the circumstances in which these unilateral decisions are taken, and the fact that the Court does not and cannot know what has motivated the decision to apply, means, in my opinion, care must be taken in extrapolating to the point of “rules” any of the considerations which might inform the exercise of power.

Evaluation of relevant factors in this application

Prospects of success

47        The State submits the prospects of success are minimal, because the appeal is “weak”. It points to the wholesale failure of the case as pleaded. The identification by the trial judge of serious flaws in the pleading was said to be a fatal aspect of the appellant’s claims at trial, especially that the appellant failed to allege and prove anything was done “because of” his disabilities. In other words, he failed to plead and prove the causal nexus. There are a lot of factual findings which the State submits would need to be overturned to reach an outcome favourable to the appellant.

48        The amended notice of appeal does deal with numerous grounds. Many of those raise legal questions about the primary judge’s understanding of the legislative scheme. The appellant challenges the way the primary judge approached the claims of discrimination, and contends in the notice of appeal that his approach was erroneous. For example, ground 7 of the amended notice of appeal challenges the primary judge’s rejection of the claims concerning inadequate or non-existent behaviour management plans and individual education plans for James by, in substance, contending the primary judge asked the wrong question and did not address his consideration to the concept of reasonable adjustments under the DDA. The way the primary judge approached the question of a causal nexus between the conduct said to constitute discrimination and the appellant’s disabilities is also the subject matter of ground 11 of the amended notice of appeal. Another ground involves contentions about whether the correct approach to a claim such as this under the DDA is to look at the resources of a particular school, or the resources of the State as a whole (see ground 10).

49        There are other reasonably straightforward contentions, such as the existence of an obligation in the primary judge to apply the Disability Standards to the whole of the State’s conduct from 2005 to 2010, as the appellant contends s 32 of the DDA required (see ground 6 of the amended notice of appeal). It is true that there are some challenges to the primary judge’s fact finding (see ground 9), although they are of smaller compass than was the case in the original notice of appeal. It remains difficult, on the face of the amended notice of appeal when read with the reasons for judgment, to see how some of those factual challenges might be said to have materially affected the outcome of the trial, but that is a matter for argument on the appeal. The State sought to emphasise ground 9 in its submissions on the security for costs application, but it is only one of 11 grounds. The remaining grounds, in my opinion, seek to raise issues of some importance in the construction and operation of the DDA, which is a statutory scheme of not inconsiderable complexity in terms of the concepts it employs and the circumstances of human conduct to which they must be applied.

50        Adopting the cautious approach to this factor which the authorities require, I can see no basis on the available evidence to describe the prospects of this appeal as hopeless, or the grounds as fanciful.

Impecuniosity/ access to assets to satisfy costs orders

51        There is something of a contradiction in examining impecuniosity in the context of an application for security for costs. Asserted impecuniosity may be the catalyst for an application, because that status provides a rational foundation for the proposition that a respondent cannot reasonably expect to recover its costs if a proceeding (or appeal) is successfully defended. Yet, asserted impecuniosity also tells against capacity to provide security for costs. This seems to be what underlies the consistent line of authority to the effect that impecuniosity by itself is not a justification for an order for security for costs.

52        Consideration of, and evidence about, potential stultification of a proceeding if security is ordered is capable of resolving the apparent contradiction. The stultifying effect of a security order may be obvious in some circumstances, or require detailed evidence in others. Whatever the factual circumstances, consideration of impecuniosity by reference to the likelihood of stultification is one of the key matters which should inform the exercise of the s 56 discretion. It also provides the foundation for an evaluation of the fairness of such an order. Finally, the level of impecuniosity of a particular party may be important: a specified amount of security may be within the means of a litigant, whereas immediate satisfaction of an estimated taxable party–party costs order may not. The question in those circumstances then is whether the court is imposing a lesser amount for the purpose of providing the moving party with access to a fund for costs, or for some other purpose.

53        There is evidence, and there are admissions, that Mrs Kiefel owns no real property or other assets in Australia. That is not in my opinion necessarily sufficient to describe her as impecunious. Her decision not to adduce evidence on this application means that there is an incomplete evidentiary picture before the Court. Mrs Kiefel was under no obligation to adduce evidence: any evidentiary or persuasive burden on this application was carried by the State, which I discuss below. Her affidavit, sworn in May 2012 and exhibited to Ms Cuthbertson’s affidavit, does provide some information. There being no submission or evidence to the contrary, I am prepared to infer that the circumstances of Mrs Kiefel and her family to which she deposes in that affidavit remain the circumstances at the time the Court considers the State’s application.

54        Mrs Kiefel, her husband, James and his sister all reside in Indiana in the USA. James is attending the Behavior Analysis Centre for Autism (BACA), and has done so since July 2011. BACA provides programs for students up to 22 years of age. The course involved 40 hours per week at the Centre in 2012 and further teaching and consultation in the home. Prior to going to the USA, James had been home tutored between November 2010 and June 2011 by tutors employed by Mr and Mrs Kiefel in Melbourne. The corporation “Anthem”, which Mrs Kiefel described in her evidence as James’ insurer, makes payments towards James’ expenses at BACA. The amount of the payments, or the proportions of the overall costs of BACA which those payments represent, is undisclosed. James sees other consultant specialists in Indiana outside BACA. Mrs Kiefel intends to stay in the USA to enable James to complete his education there (recalling that James is currently only 14 years old).

55        Mr Kiefel had a job in the USA in May 2012. Ms Cuthbertson’s evidence is that he is the registered proprietor of a property in Blackburn. In May 2011, the evidence discloses Mrs Kiefel transferred her interest in that property to Mr Kiefel for “natural love and affection”. It is open to infer, and I do infer, the Blackburn property was the family’s home when they lived in Melbourne.

56        There is no evidence whether Mrs Kiefel is employed in the USA. There is no evidence about access by the family to other funds. There is no evidence about the role of Anthem, said to be James’ insurer. I can, and do, take judicial notice of the fact that moving a family of four to the USA is not inexpensive.

57        Although the primary judge made costs orders against Mrs Kiefel on 30 April 2014, there is no evidence about the quantum of taxable costs she is likely to have to pay under those orders. Since the trial occupied 15 days, and there were pre-trial processes, it will no doubt be a considerable sum.

58        Doing the best I can with the incomplete evidentiary picture, it is not immediately obvious that Mrs Kiefel should be described as “impecunious”. Much may depend on what is meant, qualitatively, by such a term. Some litigants — an asylum seeker without any migration status in Australia and no rights to work or to receive social security benefits — may be aptly and readily described as “impecunious”. An Australian resident, whose only income is a social security benefit and who owns no assets, might be similarly described. An Australian resident in full-time employment in, for example, the retail sector, who has a heavily mortgaged home may not be so described in any general sense but might nevertheless be seen as “relevantly impecunious” in circumstances where the evidence of that person’s exposure to costs runs to the millions: see Madgwick 212 FCR 1; [2013] FCAFC 61 at [10] per Allsop CJ and Middleton J. The notion of “relevant” impecuniosity, in litigation of any size involving individual applicants, is likely to lead to the characterisation of a high proportion of individual applicants — especially those seeking to vindicate complaints under discrimination legislation — as “relevantly impecunious”.

59        There is no evidence that Mrs Kiefel is impecunious in the general sense of that word. What evidence there is suggests she, with her husband, has been able to fund the moving of her family to the USA and their continued residence there. She has travelled back to Australia at least for the trial in this proceeding. The absence of any evidence on the present application about her overall financial circumstances, taken together with the evidence which is available, lead me to conclude that she may well be able to access funds to satisfy a modest order for security for costs. Nevertheless, my satisfaction as to that matter is but one consideration.

Public interest

60        The State submitted there were no particular issues of public interest in the present appeal. It based that submission on a characterisation of the claim at trial and the grounds of appeal. The suggestion appeared to be that the failure of this proceeding at trial (and, in the State’s submissions, its poor prospects on appeal) all stemmed from forensic decisions made about how the case was pleaded and conducted. That may or may not turn out to be the view taken by the Full Court on appeal.

61        Although this proceeding is brought to vindicate what are said to be the individual entitlements of James under the DDA to have been educated in Victorian public schools in a way which, it is contended, reasonably and properly accommodated and took account of his disabilities, in my opinion there is some substance to the appellant’s submissions that there are issues of public interest involved. That is in part because the respondent is the State, and the entity charged with delivering public education in Victoria: there is a public interest in the manner in which it does that, consistently with its obligations under the DDA. There is also a public interest in the way in which the legislative scheme established by the DDA, including the operation and application of the Disability Standards, should be construed and applied as between an individual school and the State, and in the day-to-day education of a child with disabilities. The grounds of appeal to which I have referred at [48]-[49] above are capable of involving these matters. Whether as they are developed they will do so, and whether the primary judge’s reasoning is susceptible to challenges framed in that way, are matters for the Full Court. At this early stage, the State’s submission that this appeal has no public interest elements cannot be accepted.

Property transfer and residence in the United States of America

62        Considerable emphasis was placed in the State’s submissions on two particular facts in this case. First, that Mrs Kiefel had transferred her interest in the Blackburn property to her husband in 2011, not for any monetary consideration. Second, that Mrs Kiefel and James (and, indeed the whole family) were currently resident outside Australia, and had been so since mid-2011.

63        The State submitted that the first fact needed to be considered in light of the evidence that one of the first-instance proceedings the subject of this appeal was transferred from the Federal Magistrates Court to the Federal Court in December 2010, and the State filed its defence in April 2011. The State submitted the Court should infer that Mrs Kiefel transferred her interest in the Blackburn property to her husband so as to make that property unavailable as an asset against which any judgment for costs in this proceeding could be executed. In the State’s submission, by seeking to put assets out of reach of the State in this way, Mrs Kiefel “can hardly be heard to complain when an application for security is brought and the transfer is a factor weighing in favour of the application”.

64        The inference the State seeks the Court to draw is available and Mrs Kiefel, being on notice that the State sought to rely on her transfer to her husband in this application, has not sought to adduce any evidence to explain the transaction or to contradict the inference the State submits should be drawn. There may be, nevertheless, innocent explanations also available which are not connected with the foresight in May 2011 of the failure of these proceedings at first instance. The transfer was only a few months before Mrs Kiefel and James travelled to the USA. Counsel for Mrs Kiefel and James did not seek to advance any such explanations, it must be said. On balance, I am not sufficiently persuaded the inference for which the State contends should be drawn, given the seriousness of the accusation inherent in it.

65        I note also that in Logue v Hansen Technologies Ltd (2003) 125 FCR 590; [2003] FCA 81 at [54] Weinberg J observed:

Any person is entitled to render themselves “litigation proof” if they so choose. Many high wealth individuals in this country have done so, sometimes for sound commercial reasons. That fact alone will not be sufficient, in my view, to warrant the making of an order for security for costs under s 56.

66        Even if the inference for which the State contends is drawn, it is difficult to see how this weighs in favour of the grant of security for costs to any greater extent than a consideration of the whole of the evidence about Mrs Kiefel’s financial circumstances. The fact of that transfer means her impecuniosity is, for the purposes of this application, greater. It is not possible to know whether the State might still have brought an application for security if she held an interest in the Blackburn property. Perhaps any such application would have enjoyed less prospects because Mrs Kiefel did have an asset in the jurisdiction. Perhaps her holding of that asset might have been seen to provide a mechanism by which she could satisfy a security for costs order, which might have been contended to be necessary lest she transfer away, or dissipate, that interest before the outcome of any appeal was known. These are no more than matters of speculation, but they illustrate the difficulty in giving too much weight to this fact.

67        The second fact — current residence outside Australia — is in a different category. I consider this an important factor for the exercise of the s 56 discretion in this case. Under the previous Federal Court Rules 1979 (Cth) (then O 28 r 3), the fact a person was “ordinarily resident outside Australia” was specified as a condition empowering an order for security. In Logue 125 FCR 590; [2003] FCA 81, Weinberg J considered the meaning of this phrase, and referred to the then practice of this Court in such cases of ordering security, or at least seeing this as a factor of great weight in determining whether such an order should be made. The accepted purpose of ordering security in such circumstances is to create a fund within Australia against which a successful respondent may enforce a judgment for costs: see Logue 125 FCR 590; [2003] FCA 81 at [18]. Logue involved a commercial dispute concerning s 52 of the Trade Practices Act 1974 (Cth). The applicant’s claim was alleged to be for “millions of dollars”. The respondent in that proceeding had a substantial cross-claim of in excess of US$800,000, and sought security in a sum exceeding $300,000. Weinberg J found the applicant not to be “ordinarily resident in Australia” within the meaning of the rule. His Honour focused on where a person could be said to be habitually and normally resident, and whether a person had a “settled purpose” in residing in Australia: at [26].

68        Under r 36.09 and s 56, despite no express reference to this consideration, there is no doubt the fact that a person is not resident in Australia (“ordinarily” or otherwise) could in a particular case be of significance. The reasons for its relevance, as outlined by Weinberg J in Logue 125 FCR 590; [2003] FCA 81, remain applicable. It may be more difficult, time consuming and expensive to execute a costs judgment obtained at the conclusion of a proceeding against a person ordinarily resident outside Australia.

69        In the present case, the evidence discloses that the reason Mrs Kiefel, and her family (including James) are living in the USA is James’ perceived educational needs. There is no suggestion in the evidence that the Kiefel family intend to stay in the USA beyond a time when James’ educational needs no longer require them to do so. Mr Kiefel is still the registered proprietor of the Blackburn property. The Kiefels have a daughter whose interests no doubt they must also consider. Although it might be inferred the Kiefel family, and Mrs Kiefel and James in particular, may stay in the USA for some time yet, perhaps measured in years, there is no basis for the Court to conclude that Australia, and Victoria, does not remain their usual place of residence in a longer term sense.

70        Thus it is not so much the inability of the State, should it choose to do so, to execute a costs judgment against Mrs Kiefel which makes her (and James’) residence in the USA of importance. Rather, I see this fact as relevant to the utility of the appeal, and to the relief sought. Although counsel for Mrs Kiefel submitted he had no instructions about the abandonment of the relief sought at trial, which was intended to secure for James the delivery of education in a Victorian public school consistent with the appellant’s view of the requirements of the DDA, it seems to me on the evidence highly unlikely that relief could still seriously be pressed. The choice made by Mr and Mrs Kiefel in 2011 to move James, and their family, to the USA, to further what they considered to be James’ educational needs, the fact that they remain in the USA and that — at least on the evidence as at mid-2012 — Mrs Kiefel considers James to have substantially benefited from the education programs he receives in the USA means, in my opinion, the character of this proceeding has changed. Some of the public interest characteristics of a DDA claim, to which I have earlier referred, may be less visible even if the appeal were to succeed and the matter was to be remitted for a further trial. Where the appellant and his mother are residing outside the jurisdiction and appear to intend to do so for some time to come, in my opinion the nature and purpose of the litigation has altered in a material way, weighing in favour of the State having access to a fund of some level to secure any liability for costs.

Timing of the security application

71        The evidence reveals that the State has been pursuing provision of security for costs since shortly after the appeal was lodged. Having been unsuccessful at resolving this matter by direct communication with the appellant’s solicitors, it made this application. It would not be appropriate to characterise the steps the State took before issuing this application as “delay” in making the application. Nevertheless, the fact of the timing of the application when considered against the listing of this appeal for hearing in August 2014 means that, to avoid the effect of the stay, Mrs Kiefel would have to find any security amount very quickly.

Potential stultification of the appeal if security is ordered

72        Despite the State having the burden of persuading the Court that security should be ordered, the authorities suggest that, if it is said that the proceeding will be stultified if an order for security is made, then the party resisting security has an onus to demonstrate that effect: see Madgwick (2013) 212 FCR 1; [2013] FCAFC 61 at [81] per Allsop CJ and Middleton J; Australia China Business Bureau v MCP Australia Pty Ltd [2004] FCA 1207 at [9] per Emmett J. A failure to prove stultification does not mean security will necessarily be ordered, but such a failure does remove one of the obstacles to the making of such an order.

73        Mrs Kiefel adduced no evidence on any possible stultification of James’ appeal if an order for security were made against her. Her counsel thus had no evidentiary foundation on which to build a submission to that effect.

74        The absence of evidence means that an important factor which could have assisted Mrs Kiefel to resist the proposed order cannot be established.

The amount of any security

75        The State sought an order representing the whole of its estimated taxable costs for the appeal: namely $52,943.24. In oral submissions, counsel for the State submitted that an alternative approach would be for the Court to order security in a lesser amount. Mrs Kiefel’s counsel made no submissions about the amount of security. He also did not submit that the figure put forward by the State was anything but a reasonable estimate of its taxable costs on the appeal.

76        The absence of evidence from Mrs Kiefel means inferences must be drawn about her current capacity to meet any order for security. I have found at [59] above that she is not impecunious in the general sense. The fact that her husband owns real property suggests funds might be raised from that real property. The fact her husband has been employed in the USA suggests the family has access to regular income. The fact that James has an insurer covering some of his education costs suggests the Kiefels are not bearing the entire costs of his education themselves. The fact the whole family moved to the USA and continues to reside there suggests they have access to sufficient funds to maintain themselves outside Australia. Taken cumulatively, and in the absence of evidence from Mrs Kiefel to contradict these matters, I am satisfied Mrs Kiefel has some capacity to provide a sum by way of security for costs.

77        Unlike the situation in Tait [2002] FCA 322, where it appears Spender J had some evidence or material from the prospective applicant on which to base his finding (at [1]) that a security in the sum of $1000 “constitutes the erection of a significant hurdle for Mr Tait”, in the current application the Court has no evidence of whether Mrs Kiefel could provide the sum sought, or half of it, or a quarter of it.

78        To mitigate adequately the risk the State might not be able to recover its costs if the appeal is dismissed, something approaching the figure proposed by the respondent would need to be ordered. Yet, there is no evidentiary basis to find Mrs Kiefel could provide $52,000 in a month or so. Conversely, to select a figure other than something close to the figure proposed by the State would be to engage in nothing more than speculation, without evidence, about what Mrs Kiefel reasonably might be able to provide.

79        The only sound basis to consider the exercise of discretion is whether the Court should order Mrs Kiefel to pay the $52,943.24 sought, or a rounded figure close to it.

CONCLUSION

80        This has not been an easy decision. The Court has power to order security against a litigation representative. The role and function of such a representative, especially when the proceeding concerns the interests of a disabled child, means the Court should be cautious before requiring such security. In a proceeding concerning whether he has been subjected to unlawful discrimination, placing James in a position where he cannot exercise his right to appeal because his parent has failed to provide a significant sum of money as ordered seems in my opinion to lack fairness unless there were the most extraordinary of circumstances. The circumstances of this case cause me concern, but they are not so extraordinary as to persuade me I should interfere with James’ right of appeal.

81         I have found that, on the current state of the evidence, Mrs Kiefel has capacity to pay some sum by way of security. The evidence does not permit me to infer that she can only provide a sum substantially less than that sought by the State. The State’s estimate of $52,943.24 as its taxable costs has not been challenged by evidence or submission. If security were to be ordered, there is no basis in the evidence to strike a sum substantially less than that sought by the State on the basis of Mrs Kiefel’s capacity to access funds. Any sum ordered will need to be provided relatively quickly because the appeal is listed in August 2014 and steps will need to be taken to prepare the matter.

82        Mrs Kiefel has not established, and there is no basis in the evidence in any event, to conclude the appeal will be stultified if security is ordered.

83        The Kiefel family, including James and Mrs Kiefel, have resided in the USA for three years now and I infer will continue to stay there while James’ educational and developmental needs are being better met there, from his parents’ perspective. Mrs Kiefel has been ordered by the primary judge to pay what I infer will be a large sum in costs for the trial. There is presently no real property or other asset belonging to Mrs Kiefel in Australia against which that costs judgment can be executed. Execution of any further costs judgment on the appeal will be problematic, in part because the Kiefels remain outside the jurisdiction.

84        The change in James’ situation, and the inference I have drawn that this proceeding is no longer directed at coercive orders designed to deliver to James a different kind of educational experience in Victoria, reduces the public interest in the matters to be ventilated on appeal. It might also be seen to increase the risk of non-satisfaction of any costs orders made against Mrs Kiefel on appeal, in the sense that, by her own election, she has moved her family on and taken a different path to address what she perceives to be James’ educational needs.

85        There are many aspects of the conduct of this proceeding at first instance and also on appeal on behalf of the appellant which are unsatisfactory to say the least. At trial level, many of those unsatisfactory matters are dealt with in the judgment of the primary judge. On appeal, the initial state of the notice of appeal, the failure (without explanation) to comply with the Court’s directions about submissions on this application, and then the late briefing of counsel on this application — without any evidence to support his submissions —reflect poorly on Mrs Kiefel, and on her solicitors.

86        This proceeding is about the State’s treatment of James, and is being conducted on his behalf. Mrs Kiefel as his litigation representative is required to act in his best interests in her decision-making about this proceeding. In Walker v State of Victoria [2012] FCAFC 38 at [114], Gray J made some observations about the poor conduct of a similar matter under the DDA. His Honour said:

This is a case in which the appellant is a very vulnerable person. In this kind of case it is not surprising that there is a high degree of parental anxiety about the inadequacies, perceived or real, of the education services provided to a disabled child. The mechanism whereby a complaint to the Commission is a necessary step preliminary to the bringing of a proceeding in the Court encourages the making of complaints about a wide range of grievances. Before a proceeding is brought after such a complaint has been terminated, the legal representatives engaged on behalf of a vulnerable person have a particular duty to ensure that complaints and grievances that are not capable of being brought within the Disability Discrimination Act are not pursued, and that those that are pursued are related clearly and directly to the provisions of the Disability Discrimination Act. It is possible that, in the present case, there might have been acts or omissions of the respondent that did amount to unlawful discrimination against the appellant. The diffuse manner in which the appellant’s case, both at first instance and on appeal, was prepared and presented may well have served to obscure any such instances. That is something that ought not to occur. In the course of the proceeding, the respondent has no doubt incurred considerable expense in preparing for and conducting the trial and the appeal. The money it has expended would have been better spent in the provision of services for disabled students, including the appellant, than in contesting a very wide-ranging and vague series of allegations such as those made in the present case. As a result of the orders for costs made at first instance and in this appeal, if the respondent should see fit to enforce those orders, the effect on the appellant’s family will no doubt be ruinous. The interests of the appellant have certainly not been advanced in the conduct of litigation of this kind in the manner in which it has been conducted.

87        It is to be hoped his Honour’s remarks are heeded in the conduct of this appeal. Nevertheless, an order for security is not made as a mechanism for coercing a litigant into conducting a more efficient and focused proceeding. Nor is it not intended to operate as some kind of additional assurance by the person subject to the order that she has the requisite degree of seriousness concerning the appeal, or the proceeding. It is not a mechanism by which a litigant can be forced to “think twice” about whether to continue a proceeding or an appeal. The sole purpose is to provide access to a fund for a respondent in the event that respondent secures a costs order at the conclusion of the proceedings.

88        The discretion is exercised, in my opinion, because the Court concludes that it is fair in the particular circumstances of a case that a particular respondent not assume the risk usually assumed by respondents in litigation, and have available something in addition to the usual mechanisms for pursuing costs orders.

89        In the context of all the evidence in the current application, the inferences I have been able to draw, and those I have not, I come back to the vulnerability of James and the fact this proceeding is about his interests, not those of his mother. Fairness in these circumstances means that the Court should not, at this stage of the appellate process and given the issues raised on the appeal, erect a hurdle to the exercise of his right of appeal (or, potentially, stay his appeal) by imposing an order not on him but on his mother. In reaching this conclusion I have carefully considered the more unusual circumstances obtaining in this proceeding that James and Mrs Kiefel are currently resident in the USA. However, they do so for a specific purpose related to James’ perceived educational needs and there is no basis for the Court to conclude they will remain outside the jurisdiction simply to avoid the effect of costs orders made by this Court. Although Mrs Kiefel may not have assets in the jurisdiction, I cannot be satisfied she has no access to funds so as to be incapable of repaying a debt by other means.

90        I have also taken into account that the State will be the appropriate respondent in all cases involving the delivery of public education in Victorian schools and an order for security is capable of being seen as a deterrent to appeals from a judgment favourable to the State. That, in my opinion, is not a potential effect which is conducive to the administration of justice, no more than security for costs orders at first instance against impecunious litigants have been seen as appropriate because they may have the same chilling effect.

91        For those reasons I refuse the application for an order that Mrs Kiefel pay security for the costs of the appeal.

92        Mrs Kiefel, on behalf of James, did not comply with directions for written submissions. Ignoring those directions, she instructed counsel the night before the hearing, who attended without any evidence on which to rely and in large part unable to advance any meaningful submissions. No criticism of counsel is made: he was placed in an invidious position.

93        The manner in which the response to the State’s application was conducted by Mrs Kiefel on behalf of the appellant means she should not be compensated for any costs incurred in resisting that application. There will be no orders as to costs on the application.

Associate:

Dated:    12 June 2014