FEDERAL COURT OF AUSTRALIA

Ritson v Australian Building and Construction Commissioner [2017] FCA 888

ORDERS

THE COURT ORDERS THAT:

1.    The appellant give security for the costs of the appeal in the amount of $25,000, such amount to be paid by 4.00 pm on 6 September 2017 by way of electronic funds transfer into the trust account of the respondents’ legal representatives.

2.    The appeal be stayed until security is given, in accordance with order 1.

3.    The appeal be dismissed in the event that the appellant fails to comply with order 1.

4.    The appellant pay the respondents’ costs of this application on a party-party basis.

5.    The matter be listed for case management at 9.30 am on 12 September 2017.

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

REASONS FOR JUDGMENT

COLLIER J:

1    In Ritson v Director of Fair Work Building Industry Inspectorate [2016] FCCA 2923 (Ritson No.1) the Federal Circuit Court of Australia dismissed an application for judicial review brought by Mr Brendan Ritson against the first respondent (then the Director of Fair Work Building Industry Inspectorate, now known as the Australian Building and Construction Commission (ABCC)) and the second respondent (the Commonwealth of Australia). Mr Ritson sought judicial review of a decision of the first respondent to dismiss him from his employment with them. Subsequently, in Ritson v Director of Fair Work Building Industry Inspectorate (No.2) [2016] FCCA 3466 (Ritson No.2), the Federal Circuit Court ordered that Mr Ritson pay the costs of the first respondent on an indemnity basis and the costs of the second respondent on a party-party basis.

2    Mr Ritson appealed both decisions. He subsequently filed an amended notice of appeal on 24 March 2017 (notice of appeal).

3    The respondents have filed an interlocutory application seeking security for costs against Mr Ritson in relation to his appeal.

4    The background facts were set out comprehensively by the primary Judge in Ritson No.1. It is useful to recite them, as well as more recent events, in order to understand the proceedings currently before the Court.

Background

5    Mr Ritson was a police officer with the New South Wales Police Force (NSW Police Force) for several years. Materially, during that time he was the subject of numerous complaints and investigations. In Ritson No.1, the primary Judge summarised these matters as follows:

P0601488

10.    It was alleged that on 19 March 2006, the Applicant assaulted a prisoner by the name of Christopher McEvoy whilst he was in custody at the city Central police Station. This complaint was investigated and found to be “sustained”. The Applicant, in his affidavit, said that he had been told by the investigating officer that there was no unreasonable force used but that he was somehow overruled.

P0604627

11.    It was alleged that on 24 September 2006, the Applicant, together with another police officer, disclosed the personal information of Ms Bridget Fell to Garrick Jacobsen who was then a prisoner in custody. In short, it was alleged that the Applicant knew that Jacobsen was in a sexual relationship with Ms Fell. The Applicant knew that Ms Fell was a transgender person but that the prisoner, Jacobsen, did not know this. To prove what he said, the Applicant allegedly printed out a police profile of Ms Fell to prove that she had been born a male. It was alleged that the Applicant taunted Jacobsen about his relationship with someone who was, genetically, a male. Upon Jacobsen’s release from custody, it is alleged that he seriously assaulted Ms Fell.

12.    On 13 March 2007, the Applicant was charged with an offence of contravening the Privacy and Personal Information Protection Act 1998 (NSW). He was suspended from the Police Force on that date as well. In addition to facing the criminal charge, the Applicant was also subject to a show cause notice from the Commissioner of Police.

13.    As will become evident later in these reasons, the Applicant was convicted of the criminal offence before the Magistrate but that conviction was overturned on appeal by the District Court of New South Wales. This acquittal occurred on 30 July 2010.

14.    The Applicant answered the show cause letter from the Commissioner of Police and refused to go into details, quite properly, because the criminal proceedings had not yet been finalised. He did however issue denials of any wrongdoing and provided the Commissioner with a number of character references.

15.    In a letter dated 18 April 2008, the Police Commissioner recorded that he had not lost faith in the Applicant but had issued him a warning. In his statement of reasons, the Commissioner determined that the Applicant had breached the New South Wales Police Code of Conduct and Ethics and the Code for Best Practice for Information Management.

16.    The Applicant gave evidence that he did not receive those letters until after he had been acquitted by the District Court; that is, over two years after the letters had been signed by the Commissioner of Police. I have to accept the Applicant on this issue but it does expose some extremely shoddy management practices by the New South Wales Police Force.

P0702087

17.    It was alleged that on 19 April 2007, whilst off duty (and under suspension) the Applicant improperly interfered with an investigation and failed to treat persons with respect courtesy and fairness. These two allegations were found to be “sustained”. Four other offences, investigated at the same time and related to the same incident, were not found to be sustained.

P0803603

18.    It is alleged that on 21 May 2007 (again whilst on suspension), the Applicant fraudulently obtained $8,000.00 travel insurance by submitting a false travel claim. It was also alleged that he failed to comply with a direction by a senior officer to participate in an interview and that he failed to comply with the Code of Conduct and Ethics when he did lodge that claim. All of those allegations were investigated and found to be “sustained”.

P0802631

19.    It is alleged on 8 June 2008 (again whilst on suspension), the Applicant did not comply with a lawful and reasonable direction and that he acted inappropriately and unprofessionally. These offences were investigated and were both found to be “sustained”.

The Applicant leaving the NSW Police Force

20.    There were other complaints made about the Applicant during his time with the New South Wales Police Force. Those investigations concluded with a finding of “not sustained”. There was one further complaint that had not reached any conclusion by March 2011.

21.    On 3 August 2010, the suspension from duty was lifted and the Applicant was to return to duty on full pay. However, he was still certified as unfit for work due to a psychological ailment. He remained on sick leave. He said in evidence that it was after this time that he received the Commissioner’s warning notice and statement of reasons.

22.    Around the same time, he was notified as to the findings in relation to all of the other complaints made. The matters for which there was a finding of “sustained” were sent to management for appropriate action. In September 2010, the Applicant asked what management action was being taken for the sustained findings.

23.    It seems that the Applicant and the Police Force made a mutual decision that the Applicant would retire from the Police Force because of his medical condition. Nevertheless, in October 2010, the Applicant was promoted to the rank of Senior Constable.

24.    On 3 December 2010, Superintendent Fitzgerald informed the Applicant that the original Commissioner’s warning notice would be the only action taken in regards to complaint P0604627. With regard to the other five complaints of which there was a “sustained” finding, the superintendent recommended that no further management action take place. He wrote, “I have made this decision following a review of each matter, the time that has elapsed since the incidents in question and the fact that you will not be returning to duty before being medically discharged in March 2011”.

6    In 2009, and while still employed by the NSW Police Force, Mr Ritson sought documents held by the NSW Police Force regarding a number of complaints that were found to be sustained. He did so pursuant to the Freedom of Information Act 1982 (Cth) (FOI Act). The NSW Police Force did not make a determination within the 21 days allowed for by the FOI Act, which was deemed to be a refusal of the application, and Mr Ritson then sought an internal review of that deemed refusal. No determination of this request was made within the 14-day statutory time period. Mr Ritson subsequently brought proceedings for an external review by the New South Wales Administrative Decisions Tribunal (NSW ADT). On 25 January 2010, the NSW ADT found against Mr Ritson and affirmed the decision of the NSW Police Force not to release those documents.

7    Subsequently Mr Ritson sought information from the NSW Police Force to explain the publication of material known to the NSW Police Force on a newspaper Internet site. He also queried how the NSW Police Force gained information from the Department of Immigration and Citizenship.

8    His Honour noted that all claims made by Mr Ritson against the NSW Police Force were settled by a deed of release executed on 22 November 2011. Following settlement Mr Ritson received a letter from the NSW Police Force confirming that his discharge from the Police Force was because of recognized work-related injuries and not any misconduct or unacceptable behaviour. He also received a certificate of service by the Commissioner of Police.

9    It appears that around this time Mr Ritson sued four parties in the Supreme Court of New South Wales over nine publications that the Applicant said had defamed him. It seems that three of the four parties defended the claim. In relation to the party who did not defend the claim, Mr Ritson was awarded damages in the amount of $7,500.

10    His Honour observed that Mr Ritson sued the insurance company which paid out his insurance claim that was found to be fraudulent upon investigation by the police (that is, complaint P0803603). Mr Ritson informed the Court below that this proceeding had settled.

11    In October 2013, Mr Ritson made an application for employment as a police officer in the Northern Territory Police Force (NT Police Force). In that application, Mr Ritson made disclosures relevant to allegations concerning his improper accessing of and divulgence of police information from his time in New South Wales. Mr Ritson was unsuccessful in his application, and was informed that this because of “integrity issues”. He subsequently commenced proceedings in the Northern Territory Civil and Administrative Tribunal against the NT Police Force pursuant to the Anti-Discrimination Act (NT). In the Court below, Mr Ritson deposed that these proceedings had also settled.

Events relating to the first respondent

12    As the primary Judge noted, Mr Ritson began employment with the first respondent on 20 July 2015. On his first day of employment, he filled out a form nominating himself for appointment as a Fair Work Building Industry Inspector. The following prompt was on the front page:

if you have any queries in relation to this form or the declaration contained in this form, please contact your current manager (EL 1 or above) prior to completing the form.

(Original emphasis.)

13    In the nomination form Mr Ritson signed a declaration which was in the following terms:

a)    I have not been subject to disciplinary action;

b)    I am not aware of any other matter which would bring my good character into question or compromise the activities of Fair Work Building Industry Inspectorate.

14    In November 2015, the first respondent became aware of media reports relating to the $7,500.00 defamation payout, the quashing of the conviction by the New South Wales District Court and the decision by the NSW ADT to refuse Mr Ritson access to police records. On 14 December 2015, Mr Ritson attended a meeting with Ms Pina Busato, a senior officer of the first respondent. Ms Busato informed Mr Ritson that it had come to her attention that he may not have completed the nomination form with honesty and integrity, and that as a result the first respondent was considering terminating his employment. There followed email correspondence between Mr Ritson and Ms Busato, including requests by Mr Ritson for additional time in which to prepare his response and an application for sick leave. On 16 December 2016, the first respondent terminated Mr Ritson’s employment by letter signed by Mr Bernie O’Keeffe, the Chief Operating Officer of the first respondent.

Substantive proceedings

15    In the Federal Circuit Court proceedings Mr Ritson claimed, in summary, that:

    There was a breach of the rules of natural justice;

    There was an improper use of power because the decision-maker (Mr O’Keeffe) took into account irrelevant considerations and failed to take into account relevant considerations;

    The exercise of power was so unreasonable that no reasonable person could have so exercised the power;

    The decision-maker did not have the power to make the decision;

    There was no evidence or other material to justify the making of the decision; and

    The first respondent contravened the Fair Work Act 2009 (Cth) (FW Act) by failing to allow the Mr Ritson sick leave as requested.

16    In Ritson No.1 the primary Judge dismissed Mr Ritson’s application. In summary his Honour found:

    Mr Ritson was ultimately given 48 hours to respond to the concerns of the first respondent, which was a reasonable timeframe in circumstances where he was familiar with relevant facts and material;

    Mr Ritson was dishonest when he completed the nomination form. At the very least, his knowledge should have been sufficient for him to approach Ms Busato when filling out the form;

    Mr Ritson did not identify any mandatory matter that was not considered by Mr O’Keeffe, or any prohibited matter that was considered by Mr O’Keeffe;

    Mr O’Keeffe had authority to make the decision dismissing Mr Ritson; and

    Notwithstanding that Mr Ritson was on sick leave, there is no evidence that he was unfit or unable to respond to the matters to which he was required to respond by 16 December 2015. Mr Ritson failed to so respond. Whether he was on sick leave or not was irrelevant. In any event, Mr Ritson was not deprived of his entitlement to sick leave.

17    The respondents asked to be heard in respect of costs and his Honour said that he would hear submissions.

18    In Ritson No.2 his Honour found, in summary:

    The application could not properly be characterised as a Fair Work matter under the FW Act. It was an application for judicial review, in respect of which costs would ordinarily follow the event;

    Even if the matter were a Fair Work matter, or partially a Fair Work matter, s 570 of the FW Act was enlivened. This is because his Honour was satisfied that Mr Ritson had instituted the proceedings vexatiously and without reasonable cause, with the result that costs should be awarded against him;

    Mr Ritson had acted dishonestly in filling out that form and in giving evidence before the Court. For those reasons alone Mr Ritson should pay the costs of the first respondent;

    Mr Ritson took an unreasonable approach to the conduct of the litigation in that:

○    He failed to engage in discussions with the first respondent’s lawyers in relation to the timetabling of the proceeding;

○    He made serious and unfounded allegations to the effect that a document produced to him had been manipulated;

○    He sent repetitive and unnecessary correspondence to the first respondent’s solicitors regarding the production of internet searches and a proposal to seek leave to amend his application in a case filed on 3 February 2016; and

○    He sent dozens of emails to the first respondent’s solicitors in the first three months between filing his originating application and filing his amended originating application.

    Mr Ritson had been put on notice during the course of the proceeding that his conduct was increasing the respondents’ costs;

    Mr Ritson has a history of being litigious; and

    It was unreasonable for Mr Ritson to seek to join the Commonwealth to the proceedings.

19    As I noted earlier in this judgment, his Honour ordered that Mr Ritson pay the costs of the first respondent on an indemnity basis and the costs of the second respondent on a party-party basis.

20    In the notice of appeal Mr Ritson relied on six broad grounds of appeal against the decisions of his Honour. In summary, these grounds related to the failure of his Honour to find that:

(1)    There was a denial of procedural fairness regarding termination of Mr Ritson’s employment;

(2)    There was a failure by the first respondent to take into account relevant considerations and/or give genuine, proper or realistic consideration to Mr Ritson’s claims when terminating his employment;

(3)    In deciding to terminate Mr Ritson’s employment, Mr O’Keeffe acted without authority;

(4)    There was an insufficient logical or evidentiary basis for the first respondent to terminate Mr Ritson’s employment;

(5)    The first respondent acted unreasonably by requiring Mr Ritson to respond to allegations against him while on sick leave; and

(6)    Mr Ritson was deprived of his entitlement to sick leave.

21    The first respondent has also filed a notice of contention seeking affirmation of the primary judgment in respect of ss 44 and 50 of the FW Act.

The current proceedings

22    The respondents seek orders in the following terms:

1.    The appellant give security for the costs of the appeal in the amount of $115,300 or such other amount as the Court considers appropriate.

2.    The appellant provide the security within 30 days by way of electronic funds transfer into the trust account of the respondents’ legal representatives.

3.    The appeal be stayed until security is given.

4.    The appeal be dismissed in the event that the appellant fails to comply with orders 1 and 2 above.

5.    The appellant pay the respondents’ costs of this application.

6.    Such further or alternative orders as the Court considers appropriate.

23    In support of their interlocutory application the respondents submit as follows:

    The appeal has poor prospects of success. In the original proceedings, Mr Ritson was represented by Counsel instructed by experienced workplace relations solicitors. The claim was nonetheless “resoundingly dismissed”;

    The first respondent’s costs of the proceeding at first instance are in the amount of $458,197.47. The respondents informed Mr Ritson of this on 13 December 2016, however Mr Ritson has not paid these costs in accordance with his Honour’s orders;

    According to an affidavit of Mr Ritson, the only property in his name is mortgaged in excess of his estimate of its current value. It follows that there is a risk the respondents will not be paid their costs if Mr Ritson is unsuccessful;

    Mr Ritson’s impecuniosity is not caused by the respondents. He provided evidence that he is currently unemployed having been certified as unfit to work since December 2015 due to suffering from anxiety and a depressed mood. Mr Ritson also gave evidence that he continued in employment with Queensland Corrective Services until resigning in December 2016;

    The present proximate cause of Mr Ritson’s impecuniosity appears to be legal costs for several proceedings and a loss of approximately $1.4 million in a failed business venture on the stock exchange;

    There is no substantive question of law in contention in the appeal and no issue that might affect matters of public importance; and

    The primary Judge found that Mr Ritson had taken an unreasonable approach to the conduct of litigation. The appeal promised more of the same.

24    In summary, Mr Ritson opposed the interlocutory application because:

    An order for security of costs would be oppressive and would effectively end his right of appeal. He was suffering from financial hardship and had been certified unfit from work due to mental illness;

    The amount of $115,300 sought by the respondents is oppressive for what was likely to be a hearing of half a day in the Federal Court;

    The appellant had recently engaged legal representation and any concern about the appellant’s capacity to self-litigate is misplaced;

    The amended notice of appeal raised arguable points;

    There is a manifest imbalance between the litigation strength and resources of the respondents and Mr Ritson;

    There is a significant public interest element in the matter, being alleged breaches of the FW Act by a regulator of that legislation; and

    The proceedings are defensive in nature or have a substantial defensive element in that he is effectively defending himself against the termination of his employment by the first respondent.

Consideration

25    Section 56 of the Federal Court of Australia Act 1976 (Cth) confers power on the Court to make orders for security for costs. It is as follows:

(1)    The Court or a Judge may order an applicant in a proceeding in the Court, or an appellant in an appeal under Division 2 of Part III, to give security for the payment of costs that may be awarded against him or her.

(2)    The security shall be of such amount, and given at such time and in such manner and form, as the Court or Judge directs.

26    Further, r 36.09 of the Federal Court Rules 2011 provides:

(1)    A party may apply to the Court for 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.

An application under subrule (1) must be accompanied by an affidavit stating the facts in support of the application.

27    In Fard v Secretary, Department of Immigration and Border Protection [2016] FCA 1224 I set out the following principles relevant to applications for security for costs in appeals:

47.    As the respondent correctly submits, the position in respect of security for costs orders on appeals differ from proceedings at first instance. The position in appeals was articulated in Cowell v Taylor [1885] 31 ChD 34 at 38 in the following terms:

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.

48.    More recently Spender J in Tait v Bindal People [2002] FCA 322 at [4] observed:

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 …

49.    Appellate courts have, however, taken a more stringent view against ordering security for costs in circumstances where substantive questions of law are in contention (Cummings v Lewis (1991) 32 FCR 534), where points of law raised in appeal may affect matters of public importance (Smail v Burton [1975] VicRp 76; (1975) VR 776), and where the appeal had penal consequences (Hood Barrs v Heriot (1896) 2 QB 375).

50.    Otherwise, relevant factors for consideration in applications for security for costs include the prospects of success, the risk that a costs order would not be satisfied, whether the order would stifle a reasonably arguable claim, whether any impecuniosity of the appellant arises out of conduct that is the subject of the complaint, and whether there are particular discretionary matters peculiar to the circumstances of the case: Dubow v Official Receiver (NSW) [2013] FCA 709.

28    Having regard to these principles I consider that an order for security for costs is warranted in this case. I take that view for the following reasons.

Prospects of success

29    First, I consider that the respondents accurately identified significant weaknesses of Mr Ritson’s case. Notwithstanding that these issues were litigated before the primary Judge, his Honour found that Mr Ritson had been dishonest, that the first respondent had accorded him procedural fairness in inviting him to address its concerns, that the decision of Mr O’Keeffe was within power, and that the first respondent took into account relevant considerations regarding the termination of Mr Ritson’s employment. His Honour also considered in some detail Mr Ritson’s arguments concerning the power of the first respondent to terminate him whilst he was on sick leave, whether he was on sick leave, and the evidentiary basis for the first respondent to terminate Mr Ritson’s employment, and found in favour of the respondents in respect of these issues. In grounds of appeal 1, 2, 3, 5 and 6 Mr Ritson in essence contends simply that the primary Judge erred in his findings. In ground 4 Mr Ritson claims that his Honour failed to deal with Mr Ritson’s claim that there was insufficient logical or evidentiary basis for the first respondent to terminate Mr Ritson’s employment, notwithstanding his Honour’s direct findings in Ritson No.1 at [70], [71], [79] and [80] that Mr Ritson was dishonest when he completed the nomination form. I have not had the benefit of full submissions in the hearing of the appeal, however the broad issues raised in the appeal were canvassed before the primary Judge, and unequivocally rejected. To that extent I consider Mr Ritson’s prospects of success in respect of the grounds of appeal on which he relies are, at this stage, poor.

Satisfying an adverse order for costs

30    Second, it is common ground that Mr Ritson is of limited financial means. The evidence before the Court indicates that his only asset of substance is heavily mortgaged. The likely scenario is that Mr Ritson would have great difficulty satisfying an adverse costs order against him in this appeal. This is particularly so in light of the unpaid costs order from the proceedings below.

31    The corollary of this is that there is a risk that an order for security for costs in any amount – much less the amount sought by the respondents – would prevent him pursuing his appeal. Indeed, Mr Ritson asserts that he is unable to satisfy any order for security for costs.

32    The quantum of security sought by the respondents is significant. On balance, I consider that the risk of Mr Ritson failing to pay the respondents’ costs in the event of failure of his appeal outweighs the merits of an appeal with poor prospects, particularly as issues raised by Mr Ritson have already been considered by the Court below.

The respondents’ conduct

33    Third, although Mr Ritson’s Counsel submitted that Mr Ritson’s impecuniosity could be attributed to the depression Mr Ritson experienced, which in turn related to alleged conduct of the first respondent, there is more persuasive evidence on the file that his distressed financial circumstances result from failed investments and legal costs.

Substantive issues of law

34    Fourth, Mr Ritson claims that alleged breaches of the FW Act by the regulator of that legislation give rise to substantive issues of law warranting refusal of security for costs. I do not accept at this stage that this is the case. To the extent that the proceedings fall under the FW Act, entitlement to sick leave can be considered within the framework of that statute. The status of the first respondent as a regulator does not, for that reason alone, cause the proceedings to be of public importance.

Imbalance of power

35    Fifth, while Mr Ritson is an individual and the respondents are the Commonwealth, I am not persuaded that the power imbalance in this litigation prevents me making an order for security for costs. Mr Ritson is represented by Counsel, and has the benefit of legal advice. Further, as the primary Judge observed, Mr Ritson appears to be experienced in both initiating and conducting litigation, and has experienced some success in proceedings to which he has been a party.

“Defensive proceedings”

36    Finally, while the effect of the decision of the first respondent was that Mr Ritson’s employment was terminated, I do not accept that this is a factor militating against an order for security for costs as Mr Ritson submits.

Quantum of security

37    However, while I consider an order for security for costs is appropriate, I am not satisfied that it is appropriate for me to order security for costs in the amount sought by the respondents.

38    Materially, in an affidavit sworn 22 December 2016 the solicitor for the respondents, Mr Dominic Fleeton, deposed that

    The primary Judge ordered costs to be paid by Mr Ritson on an indemnity basis;

    Mr Ritson did not serve the earlier iteration of the notice of appeal on either respondent, and only did so on 18 December 2016 following requests by Mr Fleeton over a period of four days and a statement by Mr Fleeton that Mr Ritson’s conduct had caused the respondents to unnecessarily incur costs. Mr Ritson’s conduct in this regard caused Mr Fleeton to be concerned that, going forward, Mr Ritson would deal with the proceeding in a manner which would cause the respondents to incur substantial unnecessary costs;

    Mr Ritson’s conduct in the appeal bears strong similarity to conduct in which he engaged in respect of the proceeding at first instance;

    The first iteration of the notice of appeal identified 60 alleged errors made by the primary Judge. A substantial amount of work would need to be performed by Mr Fleeton, other solicitors and Counsel in analysing the appeal grounds and alleged errors; and

    The respondents are likely to incur costs in the order of $115,300 in the appeal, comprised as follows:

(a)    reviewing Notice of Appeal and considering against written reasons of [the primary Judge] – $5,000;

(b)    analysing each of the six grounds of appeal and the 60 alleged errors described in the Notice of Appeal and formulating position in respect of each – $30,000;

(c)    work in relation to the preparation and finalisation of the appeal book index – $5,000;

(d)    reviewing Appellant’s outline of submissions, chronology and list of authorities – $2,500;

(e)    preparing outline of submissions, chronology and list of authorities for each Respondent – $15,000

(f)    preparing for hearing – $25,000;

(g)    attendance at hearing (on the assumption that the hearing will last for between one and two days) – $12,800;

(h)    attendances on client to discuss developments, provide advice and seek instructions – $10,000; and

(i)    correspondence with the Appellant and the Court prior to hearing – $10,000.

39    At the hearing, Mr Bradley QC for the respondents submitted that the notice of appeal raised substantially the same issues as the earlier iteration of that document. I understand that this was not disputed by Mr Ritson. To that extent, I infer that the amount of work the respondents’ lawyers will need to undertake in answering the notice of appeal is, substantially, the same as in relation to the iteration of the notice of appeal the subject of Mr Fleeton’s affidavit.

40    However, the amount the respondents seek by way of security for costs has been calculated on an indemnity basis. It is well-settled that in ordering security for costs the Court does not set out to give a complete and certain indemnity to a respondent: see, for example, Health Information Pharmacy Franchising Pty Ltd v Khoo [2010] FCA 438 at [77]; Allied Environmental Solutions Pty Ltd v North Burnett Regional Council [2016] FCA 713 at [18]; Brundza v Robbie [No. 2] [1952] HCA 49; (1952) 88 CLR 171 at 175.

41    Further, the estimate was prepared on the basis that Mr Ritson would remain self-represented and conduct himself in an obstructive or unco-operative manner. Mr Williams of Counsel informed me at the hearing that he would represent Mr Ritson at the appeal. Counsel’s first duty is to the Court, and to that extent I expect that the pre-hearing liaisons between the parties will be conducted with greater efficiency than in circumstances where one of the parties is inexperienced and/or unrepresented. I would also expect the hearing to be completed within half to one day, a proposition with which Mr Williams agreed.

Conclusion

42    The Court should adopt a “broad brush” approach to determining the quantum of an order for security for costs, by reference to all relevant circumstances. The Court is not required to engage at this stage in a taxing of costs exercise, however the standard fees set out in the Federal Court of Australia National Guide to Counsel Fees and sch 3 of the Federal Court Rules 2011 (Cth) are a relevant guide for any consideration. In this case, and taking into account the circumstances I explained earlier in this judgment, I consider that security in the amount of $25,000 would be appropriate.

43    The costs of this application should follow the event and be borne by Mr Ritson.

Associate:

Dated:    7 August 2017