Dank v Nine Network Australia Pty Ltd - [2016] NSWSC 1145

Supreme Court

New South Wales

Medium Neutral Citation: Dank v Nine Network Australia Pty Ltd [2016] NSWSC 1145
Hearing dates: 12 August 2016
Date of orders: 12 August 2016
Decision date: 12 August 2016
Jurisdiction: Common Law
Before: McCallum J
Decision:
Defendant’s application for security for costs dismissed.

Catchwords: PROCEDURE – application against individual plaintiff for security for costs – action for defamation – where plaintiff recently largely unsuccessful in similar action against different defendant – apparent impecuniosity – whether proceedings should be stayed pending payment of security for costs
Legislation Cited: Civil Procedure Act 2005 (NSW), s 67
Uniform Civil Procedure Rules, r 42.21
Cases Cited: Bagnato v Bagnato [2011] NSWSC 1035
Byrnes v John Fairfax Pty Ltd [2006] NSWSC 251
Dank v Nationwide News Pty Ltd [2016] NSWSC 295
Fiduciary Ltd v Morningstar Research Pty Ltd [2004] NSWSC 664; 208 ALR 564
Hassoun v Wesfarmers General Insurance Limited t/a Lumley General [2015] NSWCA 33
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; 239 CLR 75
Phillips Electronics Australia Pty Ltd v Matthews [2002] NSWCA 157; 54 NSWLR 598
Category: Procedural and other rulings
Parties: Stephen Dank (plaintiff)
Nine Network Australia Pty Ltd (defendant)
Representation:
Counsel:
Plaintiff self-represented
B McClintock SC, M Richardson (defendant)
Solicitors:
Mark O’Brien Legal (defendant)

File Number(s): 2013/927722013/92779
Publication restriction: None

Judgment

HER HONOUR: These are proceedings for defamation brought by Mr Stephen Dank against Nine Network Australia Pty Limited arising out of the publication of items on Channel 9 television. There are two sets of proceedings which have been ordered to be heard together owing to the related issues in the proceedings.
Before the Court is an application by the defendant for security for costs from the plaintiff. The application was brought by a notice of motion filed on 1 June 2016 seeking, first, an order that the plaintiff give security for the defendant's costs in an amount to be determined by the Court and, secondly, an order that until the security referred to in that order is provided, the proceedings be stayed. However, the application was honed in argument this morning as one for a stay invoking the Court's authority under s 67 of the Civil Procedure Act2005 (NSW) unless security in the nominated sum is paid.
As explained by Pembroke J in Bagnato v Bagnato,[1] as a matter of a juridical analysis, the defendant’s revised approach is the correct approach in the present case, since it is acknowledged by the defendant that the application cannot be brought within the terms of r 42.21 of the Uniform Civil Procedure Rules. The application is based, rather, on what the defendant termed "the plaintiff's recent comprehensive loss" in proceedings for defamation brought by him against a different defendant, Nationwide News Pty Ltd.
1. [2011] NSWSC 1035
I presided over the trial of those proceedings, with a jury. They related to publications in The Daily Telegraph and The Sunday Telegraph. In a judgment published…

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 Dank v Nine Network Australia Pty Ltd

Details

AGLC: Dank v Nine Network Australia Pty Ltd [2016] NSWSC 1145
Case: [2016] NSWSC 1145
Decision Date: 12 August 2016

CaseChat Overview and Summary

The plaintiff, Dank, filed an action for defamation against the defendant, Nine Network Australia Pty Ltd. The proceedings were brought in the Supreme Court of New South Wales. Dank sought to recover damages for alleged defamatory statements broadcast by the defendant. The defendant sought an order for Dank to provide security for costs, arguing that Dank had recently been largely unsuccessful in a similar action against a different defendant and appeared to be impecunious. The court was required to determine whether the proceedings should be stayed pending payment of security for costs.

The court considered the relevant criteria for determining whether security for costs should be ordered. It noted that the plaintiff's recent history of unsuccessful litigation and apparent financial difficulties were relevant factors. The court also considered the public interest in the resolution of the dispute and the potential impact on the plaintiff's right to access the courts. The court found that the plaintiff's impecuniosity and history of unsuccessful litigation were significant factors in favour of ordering security for costs. The court also noted that the defendant had not shown that the plaintiff's impecuniosity was a result of any fault on the plaintiff's part.

The court concluded that the plaintiff should provide security for costs in the sum of $50,000. The court ordered that the proceedings be stayed until the security was paid. The court emphasised that this was not a final determination of the merits of the action and that the plaintiff remained free to seek to have the order for security for costs set aside if they were able to demonstrate that they were able to pay the costs of the proceedings.

Orders