VIVIENNE LOUISE DYE v COMMONWEALTH SECURITIES LIMITED, RALPH NORRIS and MICHAEL BLOMFIELD
VIVIENNE LOUISE DYE v COMMONWEALTH BANK OF AUSTRALIA and BARBARA CHAPMAN
File numbers:
NSD 526 of 2012 NSD 527 of 2012
Judge:
EMMETT J
Date of judgment:
14 August 2012
Corrigendum:
14 September 2012
Catchwords:
PRACTICE AND PROCEDURE – application for security for costs for appeal – whether reasonable prospects of success on appeal – whether the appeals will be stifled or stultified if order for security made – likely length and costs of appeal
Dye v Commonwealth Securities Limited [2012] FCA 992
In paragraph 51 of the reasons for judgment the word “demands” should read “grounds” and the word “is” should appear after “Defamation Proceeding”.
I certify that the preceding one (1) numbered paragraph are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Emmett.
Associate:
Dated: 14 September 2012
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 526 of 2012
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
VIVIENNE LOUISE DYE Appellant
AND:
COMMONWEALTH SECURITIES LIMITED First Respondent
RALPH NORRIS Second Respondent
MICHAEL BLOMFIELD Third Respondent
JUDGE:
EMMETT J
DATE OF ORDER:
14 AUGUST 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.No later than 14 September 2012, the appellant provide security in the sum of $200,000, in a form and manner acceptable to the District Registrar, for the costs of the respondents.
2.The appeal be stayed until the security is provided.
3.If the appellant fails to provide the security in accordance with order 1, the appeal be dismissed.
4.The appellant pay the respondent’s costs of the interlocutory application for security for costs filed on 27 April 2012.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 527 of 2012
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
VIVIENNE LOUISE DYE Appellant
AND:
COMMONWEALTH BANK OF AUSTRALIA First Respondent
BARBARA CHAPMAN Second Respondent
JUDGE:
EMMETT J
DATE OF ORDER:
14 AUGUST 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be stayed until the security ordered in proceeding NSD 526 of 2012 is provided.
2.If the appellant fails to provide security in accordance…
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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AGLC
Dye v Commonwealth Securities Limited [2012] FCA 992
Case
[2012] FCA 992
Decision Date
CaseChat Overview and Summary
In Dye v Commonwealth Securities Limited, the Court was asked to decide on an application for security for costs for an appeal. The appellant, Ms Dye, sought to appeal against a substantial costs order made in her favour, which the respondents, the Bank, opposed. The central issue was whether Ms Dye had reasonable prospects of success on appeal and whether the appeals would be stifled or stultified if an order for security was made. Additionally, the Court needed to consider the likely length and costs of the appeal.
The Court found that the appeals were of significant importance to Ms Dye, given the substantial costs order at stake if the appeals failed. However, the Bank had already incurred substantial costs in resisting claims that were overwhelmingly rejected by the Trial Judge and would incur further costs if the appeals proceeded and it failed. The Court concluded that it was appropriate to grant the Bank's applications for security. The purpose of the security order was to provide a substantial capacity to meet an order for costs for an appeal that failed. The Court decided that the appropriate amount of security was $200,000, to be provided within 30 days, and that the appeals would be dismissed if the security was not provided within the stipulated timeframe.
The Court's orders included requiring Ms Dye to provide security in the sum of $200,000 within 30 days, staying the appeal until the security was provided, dismissing the appeal if the security was not provided, and ordering Ms Dye to pay the respondents' costs of the interlocutory application for security for costs. These orders were made under Rule 39.32 of the Federal Court Rules, which governs the entry of orders in such proceedings.
Orders
Orders of the court
1. No later than 14 September 2012, the appellant provide security in the sum of $200,000, in a form and manner acceptable to the District Registrar, for the costs of the respondents.
2. The appeal be stayed until the security is provided.
3. If the appellant fails to provide the security in accordance with order 1, the appeal be dismissed.
4. The appellant pay the respondent’s costs of the interlocutory application for security for costs filed on 27 April 2012.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules
1. The appeal be stayed until the security ordered in proceeding NSD 526 of 2012 is provided.
2. If the appellant fails to provide security in accordance with order 1 made in proceeding NSD 526 of 2012 today, the appeal be dismissed.
3. The appellant pay the respondent’s costs of the interlocutory application for security for costs filed on 27 April 2012.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The written submissions provided on behalf of Ms Dye in opposing the orders for security sought suggested that, in the exercise of discretion, regard should be had to several matters apart from the reasonable arguability of the grounds and Ms Dye’s impecuniosity. First, she says that she and her legal representatives have complied with the directions given by the Court on 1 May 2012 to prepare the outline of argument. At this stage, no complaint is made of dilatoriness on her part. The fact that she has not been dilatory is not a justification for the exercise of discretion in her favour. Reference to public interest in certain areas of law is also put forward. However, as I have said, at the moment I do not understand how questions of law would be raised. The appeal will turn on the facts. I have also referred to the quite extraordinary contention that delay on the part of the Bank by reason of its failure to ask for security before the trial at first instance should now be held against it. CONCLUSION There is no doubt that these appeals are of great importance to Ms Dye. She faces the very substantial costs order that has been made by the Trial Judge if the appeals do not succeed. It is probably more likely than not that she will not be able to pursue the appeals if an order for substantial security is made. On the other hand, the Bank has already incurred many millions of dollars in costs in resisting claims that the Trial Judge has overwhelmingly rejected. The Bank will incur further substantial costs, which will not be recoverable if the appeals proceed and it fail. In all of the circumstances, I consider that the appropriate course is to accede to the Bank’s applications. The purpose of security is not necessarily to provide a full indemnity. Nevertheless, an order for security should provide a substantial capacity to meet an order for costs for an appeal that fails. I consider the appropriate order is that security in the sum of $200,000 be provided in a form acceptable to the Registrar. Counsel for Ms Dye has made applications for expedition of the appeals. In those circumstances, if security were to be given, it should be provided sooner rather than later. Having afforded Ms Dye’s advisors the opportunity of indicating the time within which security should be provided, I propose to order that it be provided within 30 days and that the appeals be dismissed if it is not.