Soh v Commonwealth of Australia [2009] FCA 32 (28 January 2009)

Last Updated: 12 February 2009

FEDERAL COURT OF AUSTRALIA

Soh v Commonwealth of Australia [2009] FCA 32

PRACTICE AND PROCEDURE – application for extension of time and leave to appeal – orders for security for costs and for dismissal of the proceedings contingent on non-compliance, in accordance with s25(2B)(bb)(i) of the Federal Court of Australia Act 1976 – what conditions must be satisfied in order for leave to be granted

PRACTICE AND PROCEDURE – whether a contingent self-executing order exhausts the appellate jurisdiction of the court – the decision is that the court has jurisdiction to extend time and grant leave where the requisite conditions are made out

Federal Court of Australia Act 1976 (Cth) ss 25(2B)(bb)(i), 56
Federal Court Rules O 3 r 3(2)

Soh v Commonwealth of Australia [2008] FCA 520
Décor Corp Pty Ltd v Dart Industries Pty Ltd [1991] FCA 655; (1991) 33 FCR 397
House v R [1936] HCA 40; (1936) 55 CLR 499
Adam P Brown Male Fashions Pty Ltd v Phillip Morris Incorporated [1981] HCA 39; (1981) 148 CLR 170
Bourke v State Bank of New South Wales [1995] FCA 139
FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268
Sammy Russo Meat Supplies Ltd v Australian Safeway Stores Pty Ltd [1999] FCA 1381
Equity Access Limited v Westpac Banking Corporation (1989) ATPR 40-972
Tait v Bindal People [2002] FCA 322

JAY HO SOH v COMMONWEALTH OF AUSTRALIA
NSD 1827 of 2008

TAMBERLIN J
28 JANUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1827 of 2008

BETWEEN:	JAY HO SOH Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	28 JANUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed with costs.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1827 of 2008

BETWEEN:	JAY HO SOH Applicant
AND:	COMMONWEALTH OF AUSTRALIA Respondent

JUDGE:	TAMBERLIN J
DATE:	28 JANUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These reasons concern an application by Mr Soh for an extension of time and leave to appeal against orders of Moore J made on 14 October 2008 requiring Mr Soh to provide security for costs in a form acceptable to the Commonwealth in an amount of $30,000 by 4.00 pm on 14 December 2008, and a consequential order that if the applicant did not comply then the proceedings should be dismissed.
2. Mr Soh is a citizen and resident of Korea who commenced proceedings for damages against the Commonwealth of Australia and the State of New South Wales in 2003 for time which he alleges was wrongly spent in immigration detention and in New South Wales Correctional facilities.
3. On 18 April 2008 this application by Mr Soh was dismissed by Madgwick J: see Soh v Commonwealth of Australia [2008] FCA 520, where his Honour has set out the history of the application and the issues involved. There is no need to repeat those matters in these reasons.
4. Mr Soh then filed a Notice of Appeal on 15 May 2008 from the orders of Madgwick J and on 28 May 2008 sought an extension of time to file the Notice of Appeal.
5. The Commonwealth then filed an application for an order requiring security for costs from Mr Soh on the ground that he was (i) impecunious, (ii) resides in Korea, (iii) has no assets in Australia, and (iv) his appeal had no real prospect of success. The Commonwealth pointed out in submissions before Moore J that it had already spent in excess of $210,000 in successfully defending the claim by Mr Soh, the costs of which had not been recovered, and it was estimated the predicted costs of defending the appeal would be $30,000. This amount was the security ordered by Moore J on 14 October 2008, to be paid on or before 14 December 2008, and in default of which the appeal would be dismissed.
6. It is important to note that the decision of Moore J in relation to security for costs was an interlocutory decision and that consequently leave must be obtained, and also that the current application was out of time so that an extension of time is required. Leave will normally be granted if it can be shown that the decision below is attended by sufficient doubt to warrant reconsideration or where substantial injustice would be caused if leave is refused: see Décor Corp Pty Ltd v Dart Industries Pty Ltd [1991] FCA 655; (1991) 33 FCR 397 at 398-400. In addition, the order in relation to security for costs was a discretionary judgment which on accepted principles will not be varied unless it is shown that exercise of that discretion was miscarried for specific reasons, or more generally that the decision is outside the limits of what could be considered to be sound discretionary judgment: see House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-5. The Court in that case identified the general types of error which must be shown, namely; that the primary Judge acted upon a wrong principle, took account of extraneous or irrelevant matters, was mistaken as to material facts, or where some material consideration was not taken into account. In addition, the application relating to an appeal on questions of practice and procedure enlivens the principles in Adam P Brown Male Fashions Pty Ltd v Phillip Morris Incorporated [1981] HCA 39; (1981) 148 CLR 170, namely that in such a case an appellate court will exercise particular caution in reviewing challenged decisions. These principles must be applied when considering the application in this case.
7. The Commonwealth submits that in making a direction as to security for costs Moore J has exercised and exhausted the appellate jurisdiction of the Federal Court so that a single Judge has no jurisdiction to hear the present application. The Commonwealth submits that the effect of the self-executing order made by Moore J on 14 October 2008 to require security for costs and dismissing the matter in the event of non-compliance is that, in the event of security not being provided by 14 December, the matter stands finally dismissed pursuant to s 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth) (the Act) which provides that a single Judge or a Full Court may make an order that an appeal to the Court be dismissed for failure to comply with a direction of the Court. In making his orders of 14 October 2008, Moore J, it is submitted, exhausted the appellate jurisdiction of the Court and therefore I have no power or jurisdiction to grant an extension or leave.
8. The matter came before me for hearing on 10 December 2008, which was four days before the last day for providing for security for costs. The position is that at the date of these reasons no security has been provided and no application has been made for an order to prevent his Honour’s order coming into effect.
9. On the question of jurisdiction, it is submitted on behalf of Mr Soh that the way in which his Honour’s order of 14 October 2008 operated was that first there had to be non-compliance with the direction, and that if the matter were to be dismissed it was necessary for the Commonwealth to bring the matter back before the Court and seek a specific order based on that failure and only after establishing non-compliance. In other words, the submission is that the Court does not have power to make a self-executing order which does not require a fresh exercise of the judicial function before the proceeding be dismissed.
10. There is no doubt that the Court has power to make contingent self-executing orders that in the event of non-compliance the matter stands dismissed. It is not unusual for courts to make such conditional orders which come into effect on the occurrence of a contingency. However, the authorities indicate that the power of the Court to extend time under O 3 r 3(2) of the Federal Court Rules (the Rules) may be exercised before or after the time has expired in relation to self-executing orders: see Bourke v State Bank of New South Wales [1995] FCA 139 (per Beaumont, Einfeld and Beasley JJ) at [7]-[11]. In FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 at 289, Gaudron J observed that the making of a conditional order of dismissal necessitates the exercise of the further judicial function of determining that the condition was satisfied at the relevant time: see also Sammy Russo Meat Supplies Ltd v Australian Safeway Stores Pty Ltd [1999] FCA 1381 at [13]. Having regard to these authorities I consider that the jurisdiction of the Court has not been exhausted and that there is power to extend time and grant leave.
11. When taking into account whether to grant an extension of time the Court will have regard to the length of the delay in bringing the proceedings and the explanation for it together with the prospects of success of the appeal. In this case the delay is not great and there was an explanation as to the need for the extension of time based on an error on the part of Counsel. If there was any sufficient doubt as to the correctness of his Honour’s decision in this matter I would not dismiss the application for extension solely on the basis of the period of delay in initiating the application for an extension.
12. Applying the principles set out above I am not persuaded that on the questions of security for costs the decision is attended with sufficient doubt to warrant the granting of leave for appeal or to extend time. Nor am I persuaded that any injustice would be suffered if leave to appeal or an extension of time were not granted. The reasons given by his Honour and the circumstances adverted to by him in the exercise of his broad discretion on this question of practice and procedure do not indicate or disclose any error of principle, fact or consideration on his part.
13. The reasoning of Moore J in his judgment of 14 October 2008 shows that his Honour applied s 56 of the Act and O 28 of the Rules, and the relevant general principles relating to security for costs as formulated in Equity Access Limited v Westpac Banking Corporation (1989) ATPR 40-972 at 50, 635, as well as the observations of Spender J in Tait v Bindal People [2002] FCA 322 at [3]- [4]. In particular, Moore J noted that the appellant was outside the jurisdiction with no assets in Australia and that he was clearly impecunious. I also agree with his Honour’s conclusion that there was no sufficient prospects of success in this matter on the substantive claim for damages, and am satisfied that no error has been pointed to in relation to his Honour’s reasoning in relation to the prospects of success on this matter
14. Accordingly, for the above reasons I dismiss the present application with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:
Dated: 28 January 2009

Counsel for the Applicant:	Mr A Crossland
Solicitor for the Respondent:	Ms D. Watson

Date of Hearing:	10 December 2008
Date of Judgment:	28 January 2009