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Bhatia v Gill

Bhatia v Gill

Case [2022] WASC 341 13 October 2022

Jurisdiction

Security for Costs

Discovery & Disclosure

Contempt of Court

Legal Privilege

Admissibility of Evidence

Civil Litigation & Procedure

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   BHATIA -v- GILL [2022] WASC 341
CORAM:   KENNETH MARTIN J
HEARD:   6 SEPTEMBER 2022
DELIVERED          :   13 OCTOBER 2022
FILE NO/S:   CIV 1426 of 2021
BETWEEN:   SANDEEP BHATIA
Plaintiff
AND
GURINDER GILL
First Defendant
GURWINDER BUTTAR
Second Defendant
HARMANJEET SINGH
Third Defendant
KANWARPAL SINGH
Fourth Defendant
BHUPINDER SINGH
Fifth Defendant
JAGSIR SINGH CHOUHAN
Sixth Defendant
VAKEEL SINGH
Seventh Defendant

Catchwords:

Practice and procedure - Security for costs application - Defamation and injurious falsehood actions against seven defendants across 17 distinct publications

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Security ordered

Category: B

Representation:

Counsel:

Plaintiff	:	Mr L Allen
First Defendant	:	Mr M Goldblatt
Second Defendant	:	Mr M Goldblatt
Third Defendant	:	Mr M Goldblatt
Fourth Defendant	:	Mr M Goldblatt
Fifth Defendant	:	Mr M Goldblatt
Sixth Defendant	:	Mr M Goldblatt
Seventh Defendant	:	Mr M Goldblatt

Solicitors:

Plaintiff	:	Tang Law
First Defendant	:	Summers Legal
Second Defendant	:	Summers Legal
Third Defendant	:	Summers Legal
Fourth Defendant	:	Summers Legal
Fifth Defendant	:	Summers Legal
Sixth Defendant	:	Summers Legal
Seventh Defendant	:	Summers Legal

Case(s) referred to in decision(s):

Moran v Schwartz Publishing Pty Ltd [No 2] [2015] WASC 35

KENNETH MARTIN J:

I am dealing with a security for costs application by the defendants under their application to the Court by letter of 12 January 2022. The application for security is opposed by the plaintiff.
Somewhat unusually, the defendants' application for security is made in a defamation action - where the personal nature of such an action, concerning alleged damage to a plaintiff's character or reputation by a wrong by publication, does not often lend itself to the making of a security for costs order. It is well established, of course, that adverse personal financial circumstances of a plaintiff are not of themselves alone a sufficient basis to support the making of such an order for security. Great care must be taken not to 'close the door' unjustly against a plaintiff striving to vindicate their reputation at law in the face of a personal wrong.
Nevertheless, in some circumstances, where factors extending beyond the mere impecuniosity of a plaintiff are established, it is conceptually open to the court as a matter of jurisdiction to issue such a security order against a defamation plaintiff. In Moran v Schwartz Publishing Pty Ltd [No 2] [2015] WASC 35 I discussed the principles concerning a security application in that defamation context, where ultimately, I was persuaded that such an order should be made under those rather exceptional circumstances.
For this security for costs application both sides, in effect, refer me to that decision in support of their rival opposing positions concerning a security order.
It is convenient at the outset to repeat those principles and so I will simply incorporate by reference the Moran [No 2] reasons at between [27] - [37] below, where I observed then:
[27]Order 25 r 1 of the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bhatia v Gill

Details

AGLC: Bhatia v Gill [2022] WASC 341
Case: [2022] WASC 341
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia was tasked with determining a security for costs application brought by the defendants in the defamation and injurious falsehood action initiated by Sandeep Bhatia against seven defendants. The defendants sought an order for security in the sum of $350,000, an alternative stay of proceedings until such security was provided, and costs of the application. Bhatia opposed the application.

The court identified several key legal issues, including the proper application of the security for costs provisions under the Rules of the Supreme Court 1971 (WA), and whether the plaintiff's financial circumstances and the merits of his case warranted the grant of security. The court considered whether factors beyond mere impecuniosity, such as the plaintiff's pleading deficiencies and the recalcitrance of his lawyers, could justify the grant of security.

In its decision, the court held that while the plaintiff's impecuniosity alone was not sufficient to warrant the grant of security, other factors were present that justified the order. The court found that the plaintiff's statement of claim contained numerous pleading deficiencies, including the joinder of multiple causes of action against several defendants without leave, an improper aggregation of claims for damages, and a failure to properly formulate natural and ordinary meaning imputations in the defamation claims. The plaintiff's lawyers had been made aware of these deficiencies but had taken no steps to correct them, leading the court to question their competence and commitment to the case.

Further, the court found that the financial evidence provided by the plaintiff did not support his claims of significant economic harm caused by the defendants' publications. Instead, the evidence suggested that the plaintiff's businesses had experienced an increase in revenue, contrary to his assertions.

Considering these factors, the court concluded that an order for security was warranted to protect the defendants from potential costs exposure in the event of an adverse outcome. The court ordered the plaintiff to pay security in three tranches, totalling $250,000, with the first tranche of $50,000 due within 28 days, followed by two further tranches of $100,000 each upon the completion of discovery and the entry of the matter for trial, respectively. Security could alternatively be provided by way of an acceptable bank guarantee. The defendants were also granted their taxed costs of the application.

Orders