He v Monash University (Security for Costs)

[2025] VSC 842

Supreme Court of Victoria

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Interrogate

Catchwords

1. Practice and Procedure
2. › Security for Costs
3. › Natural person — inherent jurisdiction — threshold requirement of impecuniosity
1. Practice and Procedure
2. › Security for Costs
3. › Distinction between unwillingness and inability to pay costs orders
1. Administrative Law
2. › Judicial Review and Appeals
3. › VCAT Act s 148(7)(b) — substitutive orders — temporal limitation — interlocutory stage
1. Practice and Procedure
2. › Security for Costs
3. › Rule 62.02(1)(f) — whether security available under Act — VCAT Act ss 79 and 148(7)(b)

Quick Take

The Court held that s 148(7)(b) of the VCAT Act, which empowers the Court to make 'an order that the Tribunal could have made in the proceeding', only authorises substitutive orders after an error of law has been identified on appeal, and cannot be invoked at an interlocutory stage to ground an application for security for costs under s 79 of the VCAT Act via r 62.02(1)(f). On the inherent jurisdiction, the Court held that the respondent failed to establish the threshold requirement of a real risk of an unenforceable costs order where the applicant owned or co-owned multiple properties and remained employed, notwithstanding two unpaid costs orders — the Court distinguished non-payment (unwillingness) from inability to pay. The Court also held that a security for costs application should not be used as a mechanism for enforcing past costs orders from related proceedings.