Eastern Express Pty Ltd v General Newspapers Pty Ltd

[1991] FCA 862

862/ 9 r

JUDGMENT No. .. ........ .... ......--

IN THE FEDERAL COURT OF AUSTRALIA ) )

NEW SOU TH WALES DISTRICT REGISTRY ) No G489 of 1990

)

GENERAL DIVISION )

BETWEEN:  EASTERN EXPRESS PTY LTD
Applicant/First Cross-Respondent

AND :	GENERAL NEWSPAPERS PTY LTD
First Respondent/Cross-Claimant
DOUBLE BAY NEWSPAPERS PTY LTD
Second Respondent/Cross-Claimant
BREHMER FAIRFAX PTY LTD
Third Respondent/Cross-Claimant
JOHN B. FAIRFAX
Fourth Respondent
JOHN HANNAN
Fifth Respondent
FRANK HANNAN
Sixth Respondent
NICKELBY PTY LTD
Seventh Respondent
PILLINGER DUNN PTY LTD
Second Cross-Respondent
PETER BLACKET REAL ESTATE PTY LTD
Third Cross-Respondent
DAVID GLASGOW REAL ESTATE PTY LTD
Fourth Cross-Respondent VAMEBA PTY LTD

Fifth Cross-Respondent

RONALD DOFF
Sixth Cross-Respondent
PHILIP ARTHUR SPENCER
Seventh Cross-Respondent
WILLIAM HALL
Eighth Cross-Respondent
R. DOFF PTY LTD
Ninth Cross-Respondent
PHIL SPENCER REAL ESTATE PTY LTD
Tenth Cross-Respondent
COVENTRY HALL PTY LTD
Eleventh Cross-Respondent
RONALD PILLINGER
Twelfth Cross-Respondent
PETER BLACKET
Thirteenth Cross-Respondent
YICHAEL FINGER
Fourteenth Cross-Respondent

JOHN SPIRA

Fifteenth Cross-Respondent
GREGORY SOLOMON
Sixteenth Cross-Respondent
ANDREW ORUM
Seventeenth Cross-Respondent

m: HILL J
PLACE: SYDNEY
DATED: 28 OCTOBER 1991

EX TEMPORE REASONS FOR JUDGMENT

Eastern Express Pty Limited, the applicant and first cross-respondent and a number of other companies and individuals who are also cross-respondents in these proceedings, move the court for orders extending the time for the filing of a notice of motion until 19 August 1991 seeking leave to appeal from the judgment of his Honour, Wilcox J, in the matter delivered on 23 July 1991, in which his Honour made orders on the cross-claim.

In essence, the cross-claim concerned a contract contained in the articles of association of Eastern Express and the question whether the entering into of that contract and its enforcement contravened the provisions of s.45 of the Trade Practices Act 1974 (Cth). His Honour held that it did and made orders, inter alia, for a hearing for the ascertainment of damages in subsequent proceedings.

There is no doubt that leave to appeal from his Honour's decision on the cross-claim is required in that the making of the order by his Honour was not a final order, in the sense that that expression is used in cases such as

Com~uter Edae Ptv Ltd v ADD^^ ComDuter Inc (1984) 54 ALR 767. The failure to move the court in time arose apparently as a result of a mistake.

The respondents/cross-claimants to the proceedings do not oppose, as a matter of principle, the granting of an extension of time or granting of leave to appeal. However, in respect of Eastern Express Pty Limited, it is submitted that leave to appeal should only be granted on terms that security for costs should be given by that company. In support of that submission an affidavit was filed in court, the contents of which had previously been notified to counsel for Eastern Express Pty Limited. That affidavit essentially annexes the financial statements of the company for the period from 1 July

1989 to 31 December 1990. In respect of those statements, an

order of confidentiality has been made.

Counsel for the company concedes that he accepts the prima facie position of the company as shown in those accounts. It is not necessary to discuss in detail the matter in those accounts. Suffice it to say that there is a deficiency with liabilities exceeding total assets. The

decision below that the company has a high cash flow, although	accounts also show what one might infer in any event from the
it can not be known whether that cash flow would continue having regard to the judgment which is sought to be appealed against. It would seem that some part of the financial difficulties of the company would have arisen out of its initial setting up expenses and matters which arise out of the present litigation.

Order 52, r.20 of the Federal Court Rules provides:

"Unless the court or a judge otherwise directs, no security for costs of an appeal to the court shall be required."

It is, of course, accepted that the court has power to order security in an appropriate case. It is submitted for the respondents to the proposed cross-appeal that this is an appropriate case for security to be ordered and this proposition is denied by counsel for Eastern Express. Ultimately, the matter was argued as if the present application were in essence an application for security for costs, it being accepted that otherwise leave to appeal should be granted notwithstanding that the motion initially was filed out of time.

In my view, notwithstanding the financial position of the company, the present is not an appropriate case where	security for costs should be ordered even if the matter were	looked at purely as an application for security for costs
rather than as an application that a condition be placed upon the giving of leave to appeal. The present is a case where the company is but one of a number of proposed cross- appellants in the appeal. A number of the other cross- appellants are individuals and it is not suggested that any application for security for costs in respect of those individuals would be entertained. There is a common sub- strata in the matters in which the company and the individuals are involved, namely; whether there has been entered into a contract containing an exclusionary provision as that expression is defined in the Trade Practices Act.
This issue, which on one view of the matter is unique to the company, is whether that contract, containing an exclusionary clause, has been enforced by the company. While it is true that there may be some matters, therefore, arising in the case of the cross-appeal by the company, different from those which arise in the case of the cross-appeals by the individuals, there is clearly a common thread and it is generally accepted that where the issues involving individuals and corporations are similar it is inappropriate for security for costs to be ordered. This, of course, is not a principle of law, it is merely a matter to be taken into account in the ultimate exercise of the discretion which includes as well, obviously, the financial position of the company to which I
have already referred.
I have considered whether an order should be made for some partial security along the lines suggested in the case of John Bisho~ (Caterers) Limited v National Union Bank Limited [l9731 1 All ER 707. In that case, there were issues that were both mutual and non-mutual and where a situation was reached that the individual would not necessarily be ordered to pay all of the defendant's costs in the event that both plaintiffs were successful, a discretion was exercised to order security. On the whole, however, it seems to me particularly where, as in the present case, there is an appeal and a cross-appeal and in respect of the cross-appeal as well there are both individual and corporate cross-appellants, it is not appropriate for security to be ordered except in a case where it can be shown that there is some clear matter involving the corporate cross-appellant not involving the individual cross-appellants.

In the circumstances, I think the appropriate orders

should be:

(1) That the time for filing of the notice of motion

dated 19 August 1991 be extended until 4.00pm on 19

August 1991; and

(2) That the applicant and other cross-respondents have

lave to appeal from the judgment of his Honour,

Wilcox J, delivered on 23 July 1981, in which his Honour made orders on the cross-claim; and

(3) That the costs of the present application be costs

in the appeal.

I certify that this and the
preceding six (6) pages
are a true copy of the Reasons

for Judgment herein of his Honour

M r ~ustice	Hill.
Associate:

L

Date: 28 October 1991

Counsel and Solicitors	D.K. Catterns instructed by
for Applicant/	Solomon Partners
Cross Respondent:
Counsel and Solicitors	D.M. Yates instructed by
for Respondent	Phillips Fox
Cross-Claimants:
Date of Hearing:	28 October 1991
Date Judgment Delivered:	28 October 1991