Q: I heard that it is illegal for an interviewer to ask questions about personal information, such as age, family structure, medical history and nationality during a job interview. Is that true? (a HR personnel)
A: It is not illegal to ask questions about such personal information. However, federal and state laws prohibit discrimination in Australia, and in principle, discrimination based on role and gender in a family, medical history, disability and age is prohibited.
Therefore, it is generally acknowledged that in order to avoid claims of discrimination from interviewees, asking for any personal information that is not material to the work should be avoided.
It should also be noted that companies of a certain size are obliged to disclose notes taken by interviewers during interviews in accordance with privacy laws, if requested by interviewees.
Below are comments on some questions in relation to personal information.
Example 1: Questions about age
A question about age during an interview is sometimes necessary if a position requires a candidate to be at or over a certain age to do the job. For example, in liquor shops, employers must ensure that employees are at least 18 years old.
Example 2: Questions about family structure, especially about pregnancy / childbirth and having dependents
Any question about family structure should be avoided unless there is a solid ground for the need of such information. In addition, it is against the anti-discrimination law in Australia if a person is not employed due to the need to raise children, care for elderly parents and care for families with physical and mental disabilities.
Example 3: Questions about medical history
Discrimination on the grounds of disability, such as illness or injury, is illegal in Australia, so you should avoid asking questions like "Do you have any major injuries or have a chronic illness?" in the interview unless your job requires such information. Some types of work are incompatible with illness or injury. For an occupation such as mover in which carrying heavy loads is a major part of the job, asking the question "Do you currently have an injury or illness that prevents you from carrying heavy loads?" is considered reasonable.
In addition, although occupational discrimination due to HIV infection is basically prohibited, in a case held in 1999, occupations with a high risk of bleeding (e.g. military personnel) were allowed to ask questions about HIV infection. As such, depending on circumstances, it may not be illegal to ask questions about medical history.
Example 4: Questions about race or nationality
Discrimination based on race or nationality is prohibited. However, employers are allowed to ask questions to confirm whether candidates are eligible to work, such as questions about visa conditions or Australian citizenship. For this reason, it may be reasonable to ask for visa details, a copy of your Australian birth certificate or a copy of your passport.
Related
MORE >
Closing Loopholes: The Right to Disconnect
On 26 February 2024, the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) received Royal Assent, amending the Fair Work Act 2009 (Cth) (the Act).One of the changes enacted by this amendment is the introduction of “the right to disconnect” – the right for employees to not respond to work communications outside of ordinary work hours from 26 August 2024. 1. What is the Right to Disconnect? The right to disconnect is the employees’ right to refuse monitoring, reading, or responding to emails, telephone calls or any other kind of communication from their employer outside of work hours, except where such contact is reasonable. This applies to any contact from communications from a third party relating to work outside of work hours. The right to disconnect will become a protected right under the general protection regime in the Act, meaning that the employer is barred from taking any adverse action (e.g., disciplinary action, demotion or dismissal) against the employee for reasonably refusing work-related contact or attempted contact. This provides a broader avenue for employees to bring a claim against employers – in comparison to the unfair dismissal claim. However, this right to disconnect does not mean that employers are not allowed to contact their employees outside ordinary working hours – rather, while the employers may attempt contact with their employees, the employees have a right to refuse to consider any contact relating to their work. Small businesses exemptions Small businesses are exempt from the application of the right to disconnect until 26 August 2025, which gives them more time to prepare and adjust for any changes. Under the Act, you are a small business employer at a particular time if you employ less than 15 employees at that time. A casual employee is not counted unless the employee is a regular casual employee, and your associated entities (e.g. parent company or subsidiaries) are taken to be one entity. 2. What is a reasonable contact? The salient caveat to this new right is that employees cannot exercise their right to be disconnected where such contact is deemed reasonable and necessary. The new legislation provides the following factors that could be used to judge whether the contact is reasonable: 1. Nature and urgency of the reason for contact; 2. Method of contact and the level of disruption for the employee; 3. Degree of compensation for employees for the work outside their normal working hours; 4. Nature of employee’s role and level of responsibility; and 5. Employee’s personal circumstances. For instance, where contact is required under a law of the Commonwealth, State or Territory, the contact would be deemed to be a reasonable exception to the employees’ right to be disconnected. Also, the expectation of a managerial-level employee to respond to urgent emails will be higher than that of a low-level employee involved in clerkish duties. 3. Dispute over the Right to be Disconnect? As there are no case precedents to expand on the meaning of “reasonable contact”, many workplaces may face disputes over the application of this novel right. Where such a dispute occurs, employers and employees should primarily attempt to resolve the dispute at the workplace level through internal discussions. Nonetheless, if the dispute cannot be resolved internally, either party may apply to the Fair Work Commission to make a “Stop Order” that is presumed to operate similarly to the current anti-bullying order. The employee may order the employer to stop taking adverse actions, and the employer may also apply for a stop order to oblige the employee to stop unreasonably refusing to monitor, read or respond to contact or attempted contact from the employer. Currently, a breach of such a stop order may attract civil penalties of up to 60 penalty units (currently equivalent to $11,538.60) under the Act. 4. What does this mean for employers? Proper responsiveness to this new legislation will require appropriate adjustments to existing business policies. Employers should begin by considering how they may change existing work standards, practices and policies whilst also providing training to managers on this new change. We recommend that employers establish internal procedures for any after-hour communications, based on the specific role of each employee. Specifically, we propose employers to review their current employment contracts and job descriptions as well as employment handbooks to ensure no clauses expect the employees to work outside the normal working hours (depending on the nature of the role), and also consider providing internal training to all employees on this new right to disconnect. 5. Our thoughts While this right to disconnect may seem a little odd for many hard-working Australians, this right has existed from as early as 2016 in European countries, such as Spain and France. Since then, other countries around the globe, including Belgium, Portugal, India, Argentina, Chile, and Brazil, have implemented this right to disconnect to assist with growing occupational health issues that have arisen due to digital connection and growing work hours. We have seen successful implementation of this right to disconnect in other jurisdictions, overcoming prior concerns over workplace productivity and communication. Some practical recommendations for this right to be disconnected could include technical solutions like automatic forwarding of messages from inboxes of people on holiday or the use of a delayed sending option so people do not receive messages outside their working hours. Other humanistic approaches can be implemented by including information that the sender does not expect a reply on the same day, or by conducting firm-wide training on the new right, which some firms have already been doing for a long time before this right became a law. Please do not hesitate to contact us if you have any questions about this new law and how best to prepare your business and employees. Disclaimer: The contents of this publication are general in nature and do not constitute legal advice. The information may have been obtained from external sources and we do not guarantee the accuracy or currency of the information at the date of publication or in the future. Please obtain legal advice specific to your circumstances before taking any action on matters discussed in this publication.
Are you at risk of being penalised for “vague” and “onerous” contractual terms?
Key Takeaway Points: • There has been increasing scrutiny over the use of standard form contracts containing unfair contract terms. • Unfair contract terms are those that (a) cause a significant imbalance in the parties' rights and obligations; (b) are no reasonably necessary to protect a party’s legitimate interests; and (c) would cause detriment to the other party if given effect. • New and increased penalties (which could be up to $50 million) will start applying from 10 November 2023. On 4 April 2023, the Australian Securities and Investments Commission (ASIC), filed a case in the Federal Court against Auto & General Insurance Company Limited (Auto & General) over a contractual term which is alleged to have aided in Auto & General being able to unfairly reject consumer claims. Under the contract in question, customers were required to notify Auto & General “if anything changes about [the customers] home or contents”. ASIC came to the view that the clause: • imposes an obligation on customers to notify Auto & General if ‘anything’ changes about their home or contents, which would have been too onerous, vague and/or impractical; • suggests that Auto & General has a broader right to refuse claims or reduce the amount payable under claims if the customer does not meet the notification obligation, than is available under the Insurance Contracts Act 1984; and • could mislead or confuse the customer as to their true obligations and rights under the contract. Accordingly, ASIC alleges that the contract term is unfair under the Australian Securities and Investments Commission Act 2001 (ASIC Act). What are ‘unfair contract terms’? An ‘unfair contract term’ is unenforceable in an Australian court. Whether a term is “unfair” is determined by applying a 3-limbed test set out in the ASIC Act or the Australian Consumer Law (contained in Competition and Consumer Act 2010) (ACL) as follows: 1. The term will cause a significant imbalance in the parties’ rights and obligations under the contract; and 2. The term is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term; and 3. The term would cause detriment (whether this be financial or otherwise) to a party if the term was applied or relied on. The ACL specifically protects consumers and small businesses from unfair contract terms contained in ‘standard form contracts’. ‘Standard form contracts’ refer to those where there is an imbalance in parties’ bargaining powers, the contract is based on a template with little scope for negotiations or amendments, and/or are presented on a “take it or leave it” basis. There is a presumption that a contract is a standard form contract, in that the person who prepared the contract has the onus of proving that it is not. Recent amendments to the unfair contract term provisions The Auto & General case follows recent amendments which significantly expand the ambit of the unfair contract terms provisions contained in the ACL and the ASIC Act, both of which demonstrate the government’s focus on enforcement (and in turn the need for businesses to review their legal documentation). A key change is the introduction of civil penalties under the ACL and ASIC Act for breaches of the unfair contract term prohibition, reinforced by significant increases in maximum penalties for breaches under the ACL. These penalties will take effect from 10 November 2023, and addresses the issue of the unfair contract terms provisions having largely been “toothless” until now. A brief summary of the key changes to the law can be seen below: Current Law New Law The unfair contract terms protections apply to a small business contract where one party is a business employing less than 20 persons and the upfront price payable under the contract is under $300,000, or $1 million for contracts lasting more than 12 months. Under the ACL, the unfair contract terms protections will apply to a small business contract where one party is a business employing fewer than 100 persons or has a turnover for the last income year of less than $10,000,000. Under the ASIC Act, the protections will apply to a small business contract if the upfront price payable does not exceed $5,000,000, and one party employs fewer than 100 persons or has a turnover for the last income year of less than $10,000,000. No pecuniary penalties. For corporations, increased penalties up to the greater of: • $50,000,000; • 3 times the value of "reasonably attributable" benefit obtained; or • 30% of the corporation's adjusted turnover during the period it engaged in the conduct. $2,500,000 for individuals. Where a court determines a term in a standard form contract to be unfair, it is automatically void. The court can also make orders for the whole or any part of a contract or collateral arrangement, including that the contract is void. The orders can only be made when a person or class of persons has suffered, or is likely to suffer, loss or damage. The court can make orders for: • a whole contract or collateral arrangement, including to void, vary or refuse to enforce the contract, if this is appropriate to prevent loss or damage that is likely to be caused (i.e. there is no need for actual loss or damage). • on the application of the regulator, preventing a term that is the same or substantially similar in effect to a term that has been declared as unfair, from being included in any future standard form small business or consumer contracts; • on the application of the regulator, to prevent or reduce loss or damage which is likely to be caused to any person by a term that is the same or substantially the same in effect to a term that has been declared unfair. How does this affect you and how can we assist? Sarah Court, the Deputy Chair of ASIC, stated that: ‘Contract terms need to be proportionate, transparent and clear, so any obligations are easily understood and able to be realistically adhered to by customers. They must accurately describe the actual rights and responsibilities of the parties under the contract.’ It is not long until the amendments kick in. As such, we strongly recommend that you review your standard form contracts to ensure no issues arise regarding any unfair contract terms. Please contact us if you are unsure whether your contracts are standard form contracts containing unfair contract terms.
Domestic Violence (DV) in Migrant Communities
In Australia, domestic violence is a serious issue that affects both women and men, with one woman every 9 days and one man every month losing their lives to domestic violence. This issue is particularly prevalent among migrant communities, with victims of domestic violence being more common among migrants and those on temporary partner visas. This may be due to a range of factors, including concerns about their visa status, language barriers, lack of knowledge about government support, limited family networks, lack of alternative accommodation, or financial constraints that prevent them from leaving their abusive partners. Domestic violence includes not only physical violence but also psychological and financial abuse. If you are experiencing domestic violence, it's important to know that there are national and state helplines (service providers) that you can contact to seek assistance. These helplines can connect you with support services that can provide information, assistance, and referrals to local services that can help with safety planning, emergency accommodation, legal assistance, and counseling. Contact details can be viewed via below link. Support Services: respect.gov.au If you cannot speak English, you can request an interpreter to help you communicate with service providers. Some service providers can help you find short-term or medium-term accommodation to escape the violence, including accommodation where you can stay with your children. Qualified professionals such as social workers and counselors can advise you on available services that can meet your specific needs, and they will not force you to take any action against your will. By gathering information about available services, you can be empowered to act when you need to. Remember, domestic violence can happen to anyone, and seeking help is an important step towards ensuring your safety and well-being.
Key changes to Australian employment law
On 6 December 2022, the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 received Royal Assent, amending the Fair Work Act 2009 (Cth). The key amendments to the Fair Work Act are as follows: 1. Casual Conversion – currently in effect Casual conversion is allowing casual employees to become employed on a permanent basis. It is available for an eligible casual employee, being one who: Has been employed for at least 12 months; Has worked regular pattern of hours during the last six months of employment; and Is able to continue working the regular pattern of hours as a full time or part time employee without significant changes. Employers must offer casual conversion within 21 days of an eligible employee’s 12 month work anniversary. This is an ongoing obligation, and employers must consider an employee’s eligibility each year to make the offer. If a casual employee requests casual conversion, employers must respond in writing by accepting or rejecting within 21 days. An employer must have reasonable grounds for rejecting a request, or not making a casual conversion offer. Employers must also provide casual employees with the ‘Casual Employment Information Statement’ in addition to the Fair Work Information Statement, at the commencement of employment. 2. Pay Secrecy Terms – currently in effect The Fair Work Act now gives employees the right to disclose their salary information. It also prohibits employers from entering into a contract (or other written agreement) with an employee which includes a term which prohibits an employee from disclosing their salary or other terms and conditions reasonably necessary to determine an employee’s salary. Any existing employment agreements which do include a pay secrecy term have no effect, and can no longer be enforced. 3. Prohibiting Workplace Sexual Harassment – effective 6 March 2023 The Fair Work Act will prohibit sexual harassment in connection with work. Employers will potentially be made liable for sexual harassment committed by an employee or agent in connection with work, unless they can prove they took all reasonable steps to prevent the sexual harassment. 4. Flexible Working Arrangements – effective 6 June 2023 The amendments allow pregnant employees and employees experiencing domestic violence to request flexible working arrangements. In addition to existing obligations on employers to provide reasons for refusing an employee’s request for flexible working arrangements, employers may only refuse a request for flexible work arrangements if they have: (a) Discussed the request with the employee;(b) Genuinely tried to reach an agreement with the employee about making changes; (c) Had regard to the consequences of refusal for the employee; and (d) The refusal is on reasonable business grounds. Employers must also set out the particular business ground that it relies on for refusing the request, and explain how those grounds apply to the request. The Fair Work Commission will now be able to hear and make orders about disputes regarding flexible workplace arrangement requests. 5. Fixed Term arrangements – effective 6 December 2023 The term of a fixed term employment contract must not exceed 2 years (including extensions). Fixed term contracts may not be extended more than once. Some fixed term contracts are excluded from this rule, e.g. those relating to casual employees, seasonal labour, specialised skill employment and high-income employees. From 6 December 2023, employers will need to give ‘Fixed Term Contract Information Statement’ prepared by the Fair Work Ombudsman. This has not yet been made available. Disclaimer: The contents of this publication are general in nature and do not constitute legal advice. The information may have been obtained from external sources and we do not guarantee the accuracy or currency of the information at the date of publication or in the future. Please obtain legal advice specific to your circumstances before taking any action on matters discussed in this publication.
Security of Payment NSW - Know your right to receive progress payments for construction works and related goods and services
As a direct or indirect result of the COVID-19 pandemic and uncertainty in a global economy, various issues have been adversely impacting the construction industry, such as an increase in raw material price and supply chain disruption. Particularly, contractors and subcontractors are struggling with their cash flow due to their outstanding payments for the works carried out. Accordingly, security of payment legislation in each state has played a role in ensuring that anyone carrying out construction work, and supplying related goods and services under a construction contract gets paid promptly. This article discusses and explains your rights under the NSW Security of Payment Act, and each state has its own security of payment legislation, which may differ from each other in detail. Know Your Rights In New South Wales, the relevant security of payment legislation is the Building and Construction Industry Security of Payment Act 1999 (NSW) (“SOPA”). The significance of the SOPA is that it grants contractors rights to receive progress payment even if there is no formal written contract or even if a contract says that you are only allowed to receive a payment at the end of works, i.e., after the completion of works. Fundamentally, the SOPA entitles a person or a company, who carried out construction work or supplied construction related goods and services, to receive progress payment. A progress payment means a partial payment for works as the project progresses even if the assigned works are not completed. Therefore, the progress payment facilitates cash flow for contractors and suppliers in the construction industry. Under SOPA, the following rights are granted to you: A right to receive a progress payment at least on a monthly basis; Maximum time limits to respond to claims for progress payments; Maximum payment terms; A right to suspend work in the event of non-payment; No ‘pay when paid’ clause: No need to wait until a contractor you worked for gets paid by a head contractor or principal; and Interest rates applicable on unpaid progress payment. Who is entitled to receive a progress payment? A person or company who, under a construction contract or any other construction arrangement, has undertaken to carry out construction work or supply construction related goods or services in New South Wales is eligible to receive a progress payment under the SOPA.[1] The “construction work” is broadly defined, including construction, alteration, repair, maintenance or demolition of buildings or structures forming part of land.[2] The “related goods and services” also include various related goods and services such as materials for construction or plant for use in construction work, labour service, design or engineering service.[3] While the SOPA is drafted to cover contractors, subcontractors, suppliers and service providers as broadly as possible, it should be noted that there are also exceptions such as those engaged in the extraction of oil, natural gas or minerals. Payment Claims The procedure for receiving a progress payment is triggered by a person entitled under the SOPA (Claimant) making a Payment Claim in writing to the other person who is responsible to make a payment under a construction contract (Respondent) In making a Payment Claim, Claimants must ensure that the following requirements are met:[4] 1) The construction work related to the progress payment must be identified; 2) The amount of the progress payment must be indicated; 3) A statement that a Payment Claim is made under this SOPA must be inserted; 4) A Payment Claim must be served on the Respondent within 12 months after the construction work was last carried out; and 5) A Payment Claim is only made one (1) time in a month on and from the last day of each month in which the construction work was carried out. How to respond to a Payment Claim? The Respondent is required to respond to the Payment Claim by providing a Payment Schedule to the Claimant within 10 business days after receipt of the Payment Claim. By failing to do so, the amount claimed in the Payment Claim is fixed and Respondents are liable for such amount on the due date. In issuing a Payment Schedule, Respondents also are required to comply with the following requirements:[5] 1) A Payment Claim related to a Payment Schedule must be identified; 2) The amount of the payment the Respondents propose to make must be indicated; and 3) If applicable, reasons why the amount in the Payment Schedule is less than that in the Payment Claim and reasons for withholding payment must be identified. Maximum payment terms One of the most important benefits available under the SOPA is that there are statutory deadlines for a progress payment to be made.[6] If the Respondents fail to pay the progress payment by the deadline in the diagram below, such amount is deemed due and payable, and interest on the unpaid amount is also payable at the prescribed rate. Your rights to suspend works A Claimant also has a right to suspend construction work or supply of related goods and services if a Respondent fails to pay the amount by the due date for payment as described above.[7] At least two (2) business days prior to the suspension, the Claimant must serve on the Respondent a Notice of Intention to Suspend Work in writing. As the date on which the Notice is given is not counted, the Claimant is eligible to suspend work on and from the fourth day of the Notice. Please see the above diagram. Once the work is suspended under SOPA, the Claimant is not liable for any loss or damage suffered by the Respondent as a result of such suspension. However, once the whole outstanding amount is paid, the Claimant must resume the work within three (3) business days from the payment date. Don’t wait until a head contractor gets paid The SOPA expressly prohibits and invalidates any clause in a construction contract that the payment of money is contingent on a milestone or an event in other contracts including a head contract.[8] A common example of these clauses is that a payment under a subcontract is made upon the payment by a principal under a head contract or upon the practical completion of a head contract. Such clauses are deemed unenforceable under the SOPA, and you have a right to claim the progress payment regardless of the operation of other contracts. Adjudication A person eligible under the SOPA also can start an adjudication process for unpaid or disputed progress payments. Adjudication is an informal and independent process which an issue or issues are determined by an independent adjudicator regarding the payment claims. The adjudicator’s determination can be enforced as if it is a judgment rendered in a Court. However, the Claimant must file an adjudication application in writing by the following deadlines:[9] Type Deadline When: 1) Respondent issues a Payment Schedule, and 2) the amount in a Payment Schedule is less than the amount in a Payment Claim Within 10 business days after a Payment Schedule is issued When: 1) Respondent issues a Payment Schedule; and 2) Respondent fails to pay the amount in the Payment Schedule by the due date Within 20 business days after a Payment Schedule is issued When 1) Respondent fails to issue a Payment Schedule; 2) Respondent fails to pay the amount in a Payment Claim by the due date; 3) Claimant serves written notice of intention to apply for adjudication of the payment claim on Respondent within 20 business days from the due date; and 4) Respondent has been given an opportunity to provide a Payment Schedule within 5 business days after receiving notice of intention to apply for adjudication of the payment claim Within 10 business days after the end of the 5 business days for Respondent to provide a Payment Schedule after receiving notice of intention to apply for adjudication of the payment claim Detailed procedures, requirements for adjudication and enforcing the adjudicator’s determination will be discussed in future articles. Payment Withholding A subcontractor who has made an adjudication application for a progress payment is also entitled to request a principal contractor to retain money owed to a head contractor to cover the claimed amount.[10] This is called a ‘payment withholding request’. Upon receipt of the payment withholding request, the principal must retain the amount of money to which the payment claim relates.[11] When a successful outcome is given in the adjudication process, a subcontractor is able to recover the withheld money from the principal through the procedures set out in the Contractors Debts Act 1997 (NSW). How can we assist If you are involved in construction work in New South Wales, the SOPA entitles you to claim the progress payment and have protections accordingly. However, your rights under SOPA may vary depending on your satisfactory fulfilment of requirements and on whether you took proper actions in a timely manner. Although the SOPA sets out a statutory regime for prompt payment for construction work, there are still a number of disputes arising from unpaid progress payments in a construction contract, which ends up with unsatisfactory outcomes for unpaid contractors and suppliers. If you are unsure what rights you have in your construction payment issues, H & H Lawyers will be happy to review your case to check whether it might fall within a case protected under the Security of Payment Act or other relevant laws. We can further assist in finding a way to enforce your rights. Disclaimer: The contents of this publication are general in nature and do not constitute legal advice. The information may have been obtained from external sources and we do not guarantee the accuracy or currency of the information at the date of publication or in the future. Please obtain legal advice specific to your circumstances before taking any action on matters discussed in this publication. [1] SOPA ss4 and 8. [2] SOPA s5 [3] SOPA s5 [4] SOPA s13 [5] SOPA s14 [6] SOPA s11 [7] SOPA s27 [8] SOPA s12 [9] SOPA s17 [10] SOPA s26A [11] SOPA s26B
Security for costs in the context of the foreign judgment registration in Australia: KR & C Co Ltd v Soon Ok Hwang [2021] NSWSC 551
On 18 May 2021, the Supreme Court of New South Wales in KR & C Co Ltd v Soon Ok Hwang [2021] NSWSC 551 held that a security for costs application brought by a judgment debtor in its Notice of Motion to set aside a foreign judgment registered in Australia is to be dismissed with costs. This case provides a useful authority where there is limited case law dealing with security for costs applications in the context of the foreign judgment registrations in Australia. H & H Lawyers successfully opposed the security for costs application in these proceedings. Background In this case, the plaintiff, a foreign company, was a judgment creditor in a judgment held in the Republic of Korea against the defendant who was a judgment debtor. Based on that judgment, the plaintiff filed a Summons seeking an order for registration of the foreign judgment under the Foreign Judgments Act 1991 (Cth) (FJA). The foreign judgment from Korea was ordered to be registered, and the defendant applied to set it aside. A case concerning an application seeking to set aside a registered foreign judgment will be discussed separately in a further case note. Following the setting aside application, the defendant, by another Notice of Motion, sought security for costs against the plaintiff, which is the subject of this case note. The defendant by seeking the security for costs relied upon the prospects of success on the application to set aside the registration of the Korean judgment. The plaintiff opposed the security for costs on, amongst others, the following bases: 1. While security for costs under r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) is limited to applications made by a defendant in the proceeding, r 53.4 is intended to preclude a judgment debtor from making an application for security; 2. There is no reason to believe that the plaintiff would not pay any costs order if ordered; and 3. The defendant’s prospects of success are minimal. The Court dismissed the defendant’s security for costs application by upholding the plaintiff’s 2nd and 3rd arguments above. The Supreme Court’s Reasoning The first question before the Court was the interpretation of UCPR r 53.4. That rule relevantly provides that: “For the purposes of proceedings under the Foreign Judgments Act 1991 of the Commonwealth, the Supreme Court may make an order under rule 42.21 otherwise than on the application of the judgment debtor.” In the previous hearing, on a motion for extension of time to apply to set aside the registration of foreign judgment before Campbell J in KR & C Co Ltd v Soon Ok Hwang [2021] NSWSC 164, one of the defendant’s contentions concerning r 53.4 was that it allows the Court to make a security for costs order of its own motion. However, Campbell J, referring to Richie’s commentary, stated to the effect that either the judgment debtor or creditor may make an application for security under r 53.4. The Court in the present proceedings disagreed with Richie’s commentary, and accepted and cited obiter dicta of Adams J in Raffaele Viscardi SRL v Qualify Centre Food Services Pty Limited (No 2) [2013] NSWSC 2055 (“Viscardi”), which stated that: “Though awkwardly drafted, this (being r 53.4) appears to prevent a judgment debtor, though a defendant, from making an application under r 42.21.” Nevertheless, the Court did not determine this issue as it was not necessary for the Court to decide that in the circumstance where the judgment creditor was found to be not impecunious. During the proceedings, it was not contested that the plaintiff is a company registered in Korea, ordinarily resident outside Australia, and has no assets in Australia. Therefore, the threshold required in r 42.2(1)(a) of UCPR was enlivened without difficulty. The plaintiff is a wholly-owned subsidiary of a statutory authority in Korea that has a similar function to that of the Australian Prudential Regulation Authority (APRA). There was no evidence establishing that the plaintiff, despite it being a foreign entity, is impecunious or will be unable to pay any adverse costs if ordered. Further, given the substantial reciprocity of treatment of judgments between Australia and Korea, the defendant can enforce the costs order in Korea, if ordered. As to the prospect of success on the application to set aside the registration of the Korean judgment, the defendant relied on public policy grounds under s 7(2)(a)(ix) of the FJA for reasons that: 1. There was a time interval between the foreign judgment and the registration in Australia; 2. The defendant did not receive notice of the proceedings in Korea; and 3. The quantum of the registered judgment is excessive. The Court found that the defendant’s public policy arguments were weak. The detailed arguments and analysis of the above contentions will be discussed in a further case note as that is the gist of the further proceedings, however, in summary, it was resolved that the prospect of success in the defendant’s contentions was modest at best. Implications This case is one of the limited authorities that have decided the security for costs application in the context of foreign judgment registrations in Australia. There are three key takeaways to be learned from this case. Firstly, the mere fact that a party is not an ordinary resident and does not possess assets in Australia does not necessarily mean that that party would be unable to pay the costs. There must be something more than evidence simply showing that a party is a foreign entity, particularly in circumstances where that foreign entity is a government-owned company and where an original court and Australian courts mutually recognise judgments of each other. Secondly, when relying on the prospect of success ground in a security for costs application, a party applying for security is required to prove more than a moderate possibility of success in their arguments. In the present case, the Court found that the prospect in the defendant’s arguments was moderate but did not accept that that was sufficient. Lastly and most importantly, it is a persuasive ground to argue that, while it is obiter dicta in this case and also in the Viscardi case, UCPR r 53.4 operates to preclude a judgment debtor from making an application for security. In New South Wales, the registration of a foreign judgment is determined ex parte (i.e. without the other party’s attendance and notice), and it is always the case that a judgment debtor applies for setting aside after the registration is completed. As such, a judgment creditor is relevantly in the position of a respondent/defendant who needs to respond to a motion brought by a judgment debtor. On that premise, it is unreasonable to view that UCPR r 53.4 is interpreted in a way that a moving party seeking a court order, i.e. a judgment debtor, is also allowed to seek security for costs that may stop a judgment creditor from responding to a judgment debtor’s motion