Campbell v Bedford No. Scgrg-98-1303 Judgment No. S6972

[1998] SASC 6972

CAMPBELL v BEDFORD
[1998] SASC 6972

Appeal from a Master

1. MILLHOUSE J.       When I first read the learned Master's Order (really his Reasons) refusing an application for security for costs I felt most despondent.  I simply could not follow what the Master had said.  I thought I must be losing my marbles, maybe due to advancing age.

2. I was reassured when Mr Paul Heywood-Smith for the appellant from the Master's Order explained the several mistakes which the Master has made.  Mr Nicholas Swan for the respondent to the appeal admitted that on the face of the Order there were mistakes but argued that the Master nevertheless certainly knew what he was doing.

3. This is an appeal from a Master's Order refusing a successful plaintiff in a defamation action an order for security for costs on appeal.  The defendant has appealed to a single judge of this Court from a judgment against her in the Adelaide Magistrates Court.

4. The learned Master was exercising a discretion whether or not to order security.  I cannot interfere with that exercise unless he has made such a mistake or mistakes as to shew that the exercise of his discretion has miscarried.

5. Mr Heywood Smith submitted that unfortunately several times the Master seems to have mixed up who is the applicant, applying for the order for security and who is the respondent: in one sentence he has made a mistake of fact in saying that "not all" (Grounds of Appeal) "were pursued in the final submissions" when in fact they were: there is one sentence which does not seem to make any sense at all:-

   "However, the respondent in the appeal to this Court seeks to in effect set aside the findings of the magistrate in the rejection of the defence of justification on the basis of his finding also that there was actual malice."

6. I accept Mr Heywood-Smith's submissions and have come to the conclusion that the learned Master's discretion has miscarried.  This means that I may consider afresh the application for security for costs.

To get an order for security a party must shew that there are "special circumstances".  That is a broad term but it seems that two "special circumstances" may be 1. the impecuniousness of the party against whom the order is sought and  2. her chances of success. 

1. As to the first there is no dispute.  Mr Swan said several times in argument that if an order were made against his client she would not be able to proceed with her appeal.  He submitted that no man or woman should ever be denied access to the Courts because of impecuniousness.  I replied that I have to think of the respondent as well. The result of not making an order here really is that the appellant will be able to prosecute her appeal at little or no financial risk to herself.

2. As to Mr Swan's submission that if I were to make an order his client would not be able to proceed, I felt that was an inappropriate (at the least) submission - really holding a gun at my head.

3. The impecuniousness of the respondent to this application is a factor which I take into account.

4. The second factor is chance of success.

5. The central point in the notice of appeal concerns actual malice: the point is whether actual malice must always defeat the defence of qualified privilege.

6. The learned special magistrate has written a ninety page set of Reasons.  He has found the facts against the respondent to the application (the original defendant).  He has correctly addressed himself to the authorities dealing with this point of law.  He has found actual malice.  This is part of his conclusion:-

   "     In the ultimate analysis, I think that Mr Heywood-Smith has established a strong case for a finding of actual malice. .........

   In the ultimate analysis, and notwithstanding the warnings that I give myself, as I am required to do pursuant to the strong line of authorities, I find that the plaintiff has established that the defendant cannot reply (sic) upon the shield of qualified privilege because, on balance, as read as a whole, the letter was activated by malice."

1. There are strong findings of fact which the appellant will find difficult to upset, Noack v Adlam, unreported, judgment no. S6788, delivered 20 August, 1998.

2. Mr Swan's answer is that, having found malice, nevertheless the magistrate has applied the wrong test in law.  The magistrate found that the respondent to this appeal from the master had "an over-riding love and concern for Jak" (her son) "and for his well-being".  This was her motive when she wrote what she did.  The test is that so long as his client did not have an improper motive (and obviously she did not) then, qualified privilege is retained.

3. Well, maybe.  I am bound to say, though, having read the judgment and having listened to counsel, I think the appellant's chances of success are slim.

4. I think therefore that there are sufficient "special circumstances" to justify an order for security for the costs of the respondent to the principal appeal, the appellant on this appeal from the Order of the Master.

5. The appeal is allowed.  I shall hear the parties as to the amount of security and as to the terms of the order which I should make.