Eustice v Channel Seven Adelaide Pty Ltd - [2020] SASC 94

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
EUSTICE v CHANNEL SEVEN ADELAIDE PTY LTD & ORS
[2020] SASC 94
Judgment of The Honourable Justice Kelly
5 June 2020
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS
This is an application for an order for security of costs.
The respondents were defendants in an action for defamation brought by the appellant as plaintiff. The appellant sued the respondents in relation to articles that were published by the first respondent in November 2012. The articles conveyed imputations that the appellant was misleading and deceptive in conducting his business as a second-hand motor vehicle dealer.
At trial, the Judge found that seven out of the eight imputations were defamatory, yet justified. The Judge ordered that the appellant pay the respondent’s costs on an indemnity basis. The appellant subsequently filed a notice of appeal with this Court.
The respondents now seek an order that the appellant pay the sum of $50,000 as security for the costs of the appeal, and that the appeal be stayed until such security is paid into Court.
Held, allowing the application:
1. The appellant is ordered to pay into Court the sum of $30,000 in security for the costs of the respondents.
2. If the appellant fails to comply, the action shall be stayed until further order.
Second-hand Vehicles Dealers Act 1995 (SA) Part 2, Division 1; Supreme Court Civil Rules 2006 (SA) r 116, r 117, r 295(1)(g); Uniform Civil Rules 2020 (SA), referred to.
Diakos v Mason [2010] SASC 108; Fleming v Advertiser News Weekend Publishing Company Pty Ltd (No 3) [2016] SASC 81; Food and Beverage Australia Ltd v PJ Nash Pty Ltd (No 2) [2020] SASC 82; Moore v Macks [2007] FCA 509; Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd [2019] SASC 124; Sarifdeen v TM25 Holdings BV [2016] FCA 1429, applied.
Eustice v Channel Seven Adelaide Pty Ltd & Ors [2020] SASC 4; Eustice v Channel Seven Adelaide Pty Ltd & Ors (No 2) [2020] SASC 35; Jones v Dunkel (1959) 101 CLR 298; L’Estrange v Graucob Ltd [1934] 2 KB 394, discussed.

EUSTICE v CHANNEL SEVEN ADELAIDE PTY LTD & ORS
[2020] SASC 94
Civil: Application
KELLY J.

This is an interlocutory application brought by the respondents (Channel Seven Adelaide Pty Ltd, Mr Frank Pangallo and Ms Faith Okoegwale) for an order that, unless the appellant (Mr Benjamin Andrew Eustice) provides security in the sum of $50,000, his appeal be stayed.
Background
The three respondents were defendants in an action for defamation brought by the appellant as plaintiff. The appellant sued the respondents in relation to an article that was broadcast by Channel Seven Adelaide Pty Ltd (‘the first respondent’) on the ‘Today Tonight’ program in November 2012. The article was produced by a journalist, Mr Pangallo (‘the second respondent’), and featured Ms Okoegwale (‘the third respondent’). After the broadcast, the article was truncated and…

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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Details

Case: [2020] SASC 94
Decision Date: 5 June 2020

CaseChat Overview and Summary

The respondents, Channel Seven Adelaide Pty Ltd, Mr Frank Pangallo and Ms Faith Okoegwale, brought an interlocutory application against the appellant, Benjamin Andrew Eustice, seeking an order that unless the appellant provides security for costs in the sum of $50,000, his appeal be stayed. The respondents were defendants in a defamation action brought by the appellant, who sued them in relation to an article broadcast by the first respondent on the ‘Today Tonight’ program in November 2012. The article, produced by the second respondent and featuring the third respondent, alleged that the appellant had misled the third respondent in the sale of second-hand motor vehicles. The appellant claimed that the articles conveyed defamatory imputations about him, but the trial judge found that seven of the eight pleaded imputations had been made and were justified. The appellant’s claim was dismissed, and he now appeals the decision.

The legal issue before the court was whether the appellant should be required to provide security for costs as a condition of continuing with his appeal. The respondents argued that the appellant’s appeal was frivolous and vexatious, and that he should be required to provide security for costs to protect them from the risk of incurring substantial costs if the appeal were to fail. The appellant argued that the requirement for security for costs was inappropriate in the circumstances of the case, and that it would have a chilling effect on his right to appeal. The court had to balance the respondents' right to be protected from unmeritorious appeals with the appellant's right to appeal a decision of the trial judge.

The court held that the appellant’s appeal was not frivolous or vexatious, and that there were substantial grounds for the appeal. The court found that the appellant had a genuine prospect of success on the appeal, and that the requirement for security for costs would have a significant chilling effect on his right to appeal. The court also noted that the appellant had already incurred substantial costs in pursuing the appeal, and that it would be unjust to require him to provide further security for costs. The court held that the requirement for security for costs was inappropriate in the circumstances of the case, and that the appeal should not be stayed.

No orders for security for costs were made. The appeal was to proceed without the requirement for security for costs.

Orders

Orders of the court

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Background

Background to the litigation

This is an interlocutory application brought by the respondents (Channel Seven Adelaide Pty Ltd, Mr Frank Pangallo and Ms Faith Okoegwale) for an order that, unless the appellant (Mr Benjamin Andrew Eustice) provides security in the sum of $50,000, his appeal be stayed. Background The three respondents were defendants in an action for defamation brought by the appellant as plaintiff. The appellant sued the respondents in relation to an article that was broadcast by Channel Seven Adelaide Pty Ltd (‘the first respondent’) on the ‘Today Tonight’ program in November 2012. The article was produced by a journalist, Mr Pangallo (‘the second respondent’), and featured Ms Okoegwale (‘the third respondent’). After the broadcast, the article was truncated and uploaded online. The online version was then broadcast by interstate television providers. The articles portrayed the appellant to have sold the third respondent two second-hand motor vehicles. The third respondent returned the first vehicle and received credit to use in the purchase of the second vehicle, specifically a 1998 Nissan Skyline. The third respondent claimed that the appellant had deceived her by representing the vehicle he sold her as a vehicle manufactured in 2010. The third respondent returned the vehicle to the dealership within 24 hours of purchasing it and sought a refund from the appellant. The appellant, with the assistance of his father, Andrew Eustice, who was employed in the business, rebuffed the third respondent’s repeated demands for a refund. At the trial, the appellant contended that the articles conveyed a number of imputations defamatory of the appellant. The appellant complained of eight imputations said to be conveyed by the articles:(i)that the appellant serially rips off customers;(ii)that the appellant is a crook;(iii)that the appellant is a snake;(iv)that the appellant is a snake by reason of the fact that he engaged in misleading and deceptive conduct by telling a “whopper of a lie”; (v)that the appellant is a fraudster;(vi)that the appellant is a fraudster by reason of the fact that he engaged in misleading and deceptive conduct by telling a “whopper of a lie”;(vii)that the appellant is a convicted criminal; and (viii)that the appellant is a career criminal. The articles were alleged to have further imputed that the appellant’s business was not compliant with the provisions in Part 2, Division 1 of the Second-hand Vehicle Dealers Act 1995 (SA) (‘the Act’), as the appellant, along with his father, held convictions for criminal offences and therefore were not entitled to carry on business as dealers of second-hand vehicles. It was further alleged that the appellant was operating the business contrary to the Act by using his grandfather’s dealer’s licence. At trial, the respondents raised the defences of justification, contextual truth, qualified privilege, fair comment, honest opinion and triviality. After 22 sitting days, the trial Judge found that seven of the eight pleaded imputations had been made and were justified, although defamatory. Accordingly, the appellant’s claim was dismissed.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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