Eustice v Channel Seven Adelaide Pty Ltd - [2021] SASCA 43

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 KB 394; Stoltenburg v Bolton [2020] NSWCA 45, considered.

EUSTICE v CHANNEL SEVEN ADELAIDE PTY LTD & ORS
[2021] SASCA 43
Court of Appeal – Civil
LIVESEY JA:

This hearing was called on to decide the fate of an appeal because the appellant has failed to provide security for costs following an order made in June last year.[1]
[1] Eustice v Channel Seven [2020] SASC 94 (Kelly J, as she was). Judgment was delivered on 5 June 2020.
Today the appellant makes three principal contentions. First, he applies to vary the terms of the order made on 5 June 2020 pursuant to rr 115.1(3) and 12.1 of the Uniform Civil Rules 2020 (SA).
Secondly, the appellant submits that there was a failure by the Judge to make an order specifying the time within which security should be given, with the result that the six-month timeframe specified by r 115.1(5) has neither commenced nor expired.
Thirdly, if necessary, the appellant applies to reinstate the appeal for “special reasons” pursuant to r 115.1(6).
The appeal is against the dismissal of a defamation claim heard between August and December 2019 concerning a television program which aired during 2012.[2] The trial Judge found that the defence of justification was established at common law and under s 23 of the Defamation Act2005 (SA) in respect of each of the defamatory imputations which he found were conveyed. Other defences failed. The trial Judge made a number of seriously adverse credit findings concerning the appellant.
[2] Eustice v Channel Seven [2020] SASC 4 (Nicholson J).
In the 10 months or so since the decision was made concerning security, no steps have been taken to prosecute this appeal.
When the matter was called over on 1 April 2021, the appellant submitted that the appeal had merit and he wished to prosecute it. It is said that there have been difficulties raising funds and obtaining instructions. The appellant wanted to make an application, if necessary, to reinstate the appeal pursuant to r 115.1(6). That rule applies to appeals by virtue of r 215.3(2).
The ordinary operation of the rules is that where security has not been 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.
At the callover at the beginning of this month, I warned the appellant that the application to reinstate for special reasons would have to be supported by an application and an affidavit. Whilst I had no reason to doubt the matters raised by senior counsel for the appellant, I was not prepared to act on statements made from the bar table. I told the parties that I expected the appellant's materials to be filed by lunchtime on 19 April 2021. That has not been done.
I am told that there have been difficulties obtaining instructions. The affidavit evidence before me today deposes to the appellant's ill-health, sporadic employment due at least in part to the COVID-19 pandemic and the appellant’s arrest by Queensland Police on fraud charges.
In the absence of an affidavit from the appellant, however, I do not have anything like precise information concerning these matters. It seems clear enough that the appellant is without the funds or means for funding the order for security. Although I was told today from the bar table that the appellant wished to obtain financial assistance from family members, I have no evidence about any attempts made in that regard nor any evidence from which I might draw any conclusion as to his prospects of successfully obtaining funding from family members.
The appellant contends that I should vary the order made on 5 June 2020 regarding security and allow a further period of two months within which the appellant can give security. No authority was provided which would indicate whether it was or was not appropriate to vary an order made in these circumstances in this way. However, even accepting that I have the power to vary the order made, I decline the invitation in the absence of any new circumstances. There is, in my view, no good reason to revise the orders made in June 2020 from which no appeal was taken.
The appellant also contended that, because no time was specified within which the appellant was to give security, it followed that no stay had commenced and the six-month period referred to in r 115.1(5) had not been triggered. In response, senior counsel for the respondent contended that the absence of a specified timeframe in the order meant that security had to be given “forthwith”. Neither counsel was in a position to provide me with any authority directly on point.
I have my doubts about whether the order should be construed as meaning “forthwith”. However even if that submission is correct, in some contexts the term “forthwith” has been interpreted to mean “as soon as can be reasonably expected”.[3]
[3] Australian Securities Commission v McLeod (No.2) (1993) 40 FCR 461, 465 (Drummond J), a case of contempt.
The Supreme Court Civil Rules 2006 (SA) formerly provided by r 135(2) that, where the court does not fix a time within which something is to be done, it is to be done within 14 days. In my opinion, 14 days would represent the outer limit of any period within which the appellant could have been expected to provide security. I am reinforced in that view by the fact that the argument before the Judge proceeded on the basis that the making of any order as to security would effectively stultify the appeal.
Accordingly, it is my view that this appeal was stayed from no later than 14 days after the making of the 5 June 2020 order for security. In those circumstances, it is my finding that the appeal has been automatically dismissed for want of prosecution pursuant to r 115.1(5).
Finally, on the question of reinstatement pursuant to r 115.1(6), it is contended and contended forcefully that the appeal is arguable, indeed senior counsel put to me today that the grounds of appeal were “strongly arguable”.
That is not, however, consistent with the ruling made in June 2020 that the appeal had only “limited prospects of success”. In seeking to overturn that finding I was today referred to a number of authorities as well as to the grounds of appeal. Those authorities concerned imputations,[4] whether a Jones v Dunkel inference should have been drawn,[5] as well as the proposition that ordinarily a party cannot be heard to complain that the party did not read a contract signed by that party.[6]
[4]     Brown v Kirkpatrick [2020] SASC 5, [19]-[21] (Nicholson J).
[5]     Stoltenburg v Bolton [2020] NSWCA 45, [103]-[107] and Knell v QAV Pty Ltd [2020] WASCA 23, [96]-[112].
[6]     L'Estrange v F Graucob Ltd [1934] 2 KB 394.
No authority was cited to me which would justify departing from what, in my view, was an essential step in the reasoning undertaken by the Judge who made the order for security.[7] However, even assuming (without deciding) that the appeal is reasonably arguable, in my view, the absence of any evidence from the appellant means that there is no foundation for a finding of “special reasons” as is required by r 115.1(6).
[7] The same point may be made in response to whether an arguable appeal might support a variation to the orders made.
In the circumstances, there is no need for me to address the alternative submission made by the respondent that this appeal must be taken to have been discontinued and has lapsed by virtue of either r 296(2) of the Supreme Court Civil Rules 2006 (SA),[8] or r 218.13(3) of the Uniform Civil Rules 2020 (SA).[9]
[8] Because the appeal was not set down for hearing within 6 months of the appeal being commenced.
[9] Because no documents were filed within 3 months of the appeal being commenced.
In all of these circumstances, the Court will proceed as follows:
1.The application to vary the terms of the order made on 5 June 2020 pursuant to rr 115.1(3) and 12.1 is dismissed.
2.The appeal is dismissed for want of prosecution by virtue of r 115.1(5).
3.The application to reinstate the appeal pursuant to r 115.1(6) is dismissed.
4.The appellant must pay the respondent’s costs of and incidental to the hearings on 1 April and 29 April 2021.
5.The parties have liberty to apply.