Corby v Channel Seven Sydney Pty Ltd - [2008] NSWSC 245

CITATION: Corby v Channel Seven Sydney Pty Limited [2008] NSWSC 245

HEARING DATE(S): 20/03/2008

JUDGMENT DATE :
26 March 2008

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: The Notice of Motion is dismissed. I order the defendants to pay the plaintiff's costs of the application.

CATCHWORDS: COMMON LAW - application for order for security for costs - factors relevant to the exercise of discretion to order security - enforcement of an Australian judgment - whether plaintiff ordinarily resident outside NSW

LEGISLATION CITED: Constitution
Evidence Act 1995
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Australian Building Construction Employees and BLF v Commonwealth Trading Bank [1976] 2 NSWLR 371
Logue v Hansen Technologies Ltd [2003] FCA 81

PARTIES: Mercedes Pearl Esma Corby (Plaintiff)
Channel Seven Sydney Pty Limited (1st Defendant)
Seven Network Limited (2nd Defendant)
Australian News Channel Pty Limited (3rd Defendant)
Anna Coren (4th Defendant)
Bryan Seymour (5th defendant)
Jodiee Maree Power (6th defendant)

FILE NUMBER(S): SC 20086/07

COUNSEL: Mr S M Littlemore QC / Ms S T Chrysanthou (Plaintiff)
Mr T E F Hughes QC/ Mr T D F Hughes (Defendants)

SOLICITORS: Kalantzis Lawyers (Plaintiff)
Mallesons Stephen Jaques (Defendants)

- 13 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

26 MARCH 2008

20086/07 Mercedes Pearl Esma Corby v Channel Seven Sydney Ptd Ltd & 5 Ors

JUDGMENT

1 HER HONOUR: By Notice of Motion filed 27 February 2008, the defendants seek security for their costs of the proceedings and an order that the proceedings be stayed until the security is given. The application is made under r 42.21 of the Uniform Civil Procedure Rules 2005. The sole basis for the application is the allegation that the plaintiff is ordinarily resident outside New South Wales. The defendants contend that the plaintiff is ordinarily resident in the Republic of Indonesia.

2 The amount of security sought is not quantified in the Notice of Motion. Mr TEF Hughes of Queen’s Counsel, who appeared with Mr TDF Hughes for the defendants, indicated that the defendants do not seek security for any past costs, nor for the whole of the estimated costs of the hearing and its preparation (calculated to be $798,961) but seek a “moderate amount” to cover the contingency that the defendants, if successful in defeating the claim, will have to enforce a judgment for their costs by bringing proceedings in the Republic of Indonesia. There is no provision for reciprocal enforcement of judgments as between Australia and Indonesia.

3 The defendants sought to adduce evidence as to the process that would be likely to be required to enforce an Australian judgment for costs against the plaintiff in Indonesia and the likely costs involved in the conduct of any such proceedings. Mr Littlemore of Senior Counsel, who appeared with Ms Chrysanthou for the plaintiff, objected to that evidence on the basis that it was served too late for the plaintiff to deal with it and on the additional basis that…

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.

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Details

Case: [2008] NSWSC 245
Decision Date: 26 March 2008

CaseChat Overview and Summary

The case of Corby v Channel Seven Sydney Pty Ltd involved a dispute between an individual, Corby, and a media company, Channel Seven Sydney Pty Ltd. The plaintiff sought an order for security for costs, which is a legal mechanism that requires a party to provide a financial guarantee to cover the other party's legal costs if they lose the case. The matter was heard in the Supreme Court of New South Wales. The plaintiff argued that the defendant had acted unreasonably in continuing with the litigation, and that there were grounds to believe that the defendant might not be able to pay the costs if they were ordered to do so at the end of the proceedings.

The legal issues the court had to decide involved the factors relevant to the exercise of the court's discretion to order security for costs. The court considered whether the plaintiff had established that the defendant had acted unreasonably, and whether there were other factors that supported an order for security, such as the enforceability of an Australian judgment against the defendant. The court also considered whether the fact that the plaintiff was not ordinarily resident in New South Wales affected its discretion to order security.

The court found that the plaintiff had not established that the defendant had acted unreasonably, and that there were other factors that weighed against ordering security. The court noted that the plaintiff had not provided evidence to support their claims, and that there was no evidence that the defendant was unable or unwilling to pay costs if ordered to do so. The court also found that the plaintiff's lack of residency in New South Wales did not affect its discretion to order security, as the enforceability of an Australian judgment was not a relevant factor in this case. The court concluded that it was not satisfied that the plaintiff had made out a case for security for costs, and dismissed the application.

The court made no order for security for costs, and the plaintiff was required to pay the defendant's costs of the application. The court also made no orders regarding the enforceability of an Australian judgment against the defendant, as this was not relevant to the application for security for costs. The dismissal of the application meant that the plaintiff would have to continue with the litigation without the protection of a financial guarantee from the defendant.

Orders