Eustice v Channel Seven Adelaide Pty Ltd

Supreme Court of South Australia

(Court of Appeal: Civil)

EUSTICE v CHANNEL SEVEN ADELAIDE PTY LTD & ORS

[2021] SASCA 43

Judgment of the Honourable Justice Livesey  (ex tempore)

28 April 2021

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SECURITY FOR COSTS - EFFECT OF NON-COMPLIANCE WITH ORDER FOR SECURITY

The appellant sought to appeal the dismissal of a defamation claim heard between August and December 2019 concerning a television program which aired in 2012. The appellant filed a Notice of Appeal on 6 February 2020 and, on 5 June 2020, was ordered to give security for the respondent’s costs of the appeal in the amount of $30,000. 

In the ten or so months since the order was made, no security has been given.

The ordinary operation of r 115.1 of the Uniform Civil Rules 2020 (SA) is that where an order for security for costs is made but security is not given, the appeal is stayed. Where the appeal is stayed for six months without security having been given, the appeal is automatically dismissed for want of prosecution.

The appellant argued that the order for security should be varied and that he should have two further months in which to give security; alternatively, that as the Judge had failed to specify the time within which security should be given, the six-month time frame under r 115.1(5) had neither commenced nor expired.

If these arguments were rejected, the appellant applied to reinstate the appeal for “special reasons”.  The appellant argued that there were strong prospects of success on appeal.

Held per Livesey JA, finding that the appeal is automatically dismissed for want of prosecution and dismissing the applications to vary the terms of the order and to reinstate the appeal for “special reasons”:

1.      Absent new circumstances, there is no good reason to revise the orders made in June 2020, from which no appeal was taken.

2.      Whether the appellant was required to give security forthwith or within a reasonable time,   the period of 14 days represents the outer limit of any period within which the appellant could         be expected to give security for costs. 

3.      Accordingly, the appeal was stayed no later than 14 days after the making of the 5 June 2020        order for security. The appeal is automatically dismissed for want of prosecution pursuant to   r 115.1(5) of the Uniform Civil Rules 2020 (SA).

4.      In the absence of any evidence from the appellant, there is no foundation for a finding of      “special reasons” as required by r 115.1(6) of the Uniform Civil Rules 2020 (SA). The    application to reinstate the appeal must be dismissed.

Supreme Court Act 2006 (SA) s 135(2); Uniform Civil Rules 2020 (SA) r 115.1(3), r 115.1(5), r 115.1(6), r 12.1, r 215.3(2), referred to.
Australian Securities Commission v McLeod (No 2) (1993) 40 FCR 461; Brown v Kirkpatrick [2020] SASC 5; Knell v QAV Pty Ltd [2020] WASCA 23; L'Estrange v F Graucob Ltd [1934] 2…