Ezzo v Grille - [2003] NSWSC 776

CITATION: Ezzo v Grille [2003] NSWSC 776

HEARING DATE(S): 20 August 2003

JUDGMENT DATE:
21 August 2003

JUDGMENT OF: Simpson J

DECISION: (i) within twenty-eight days from the date of this order the plaintiff is to provide security for the defendant's costs in these proceedings in the sum of $AUD40,000 in a form acceptable to the Registrar and that the plaintiff's action be stayed until provision of such security; (ii) the plaintiff is to pay the defendant's costs of this application; (iii) the matter is to be re-listed in the Registrar's defamation directions list as directed by the Registrar by arrangement with the parties

CATCHWORDS: defamation - security for costs - plaintiff resident outside the State

LEGISLATION CITED: Defamation Act 1974 (NSW), s7A
Defamation (Amendment) Act 1994 (NSW)
Legal Profession Act 1987 (NSW), s198J
Supreme Court Rules (NSW), Pt 1 r3, Pt 1 r 12, Pt 53 r2(1)(a), Pt 67 r12A,

CASES CITED: Aopi v Rapke [2002] NSWSC 711, unreported, 15 August 2002
Caruso Australia Pty Ltd v Portec (Australia) Pty Ltd (1984) 1 FCR 311
CBS Australia Ltd v Telmark Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270 at 285
Chellaran & Co Ltd v China Ocean Shipping Company (1991) 182 ALR 321
Energy Drilling Inc v Petroz NL (1989) ATPR 40-954
King v Commercial Bank of Australia Ltd (1920) 28 CLR 289 at 292
Lucas v Yorke (1983) 50 ALR 228 at 229
Mortimer v Nationwide News Pty Ltd [2001] NSWSC 450; unreported, 28 May 2001
Swain Investments Ltd v Danumet Pty Ltd & G R Walker, unreported, 5 May 1989

PARTIES :
Gary Ezzo - Plaintiff
Robin Grille - Defendant

FILE NUMBER(S): SC 20137/03

COUNSEL: MA Friedgut (sol) - Plaintiff
RG McHugh - Defendant

SOLICITORS: Freehills - Plaintiff
Corrs Chambers Westgarth - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

SIMPSON J

Thursday 21 August 2003

20137/03 Gary EZZO v Robin GRILLE
JUDGMENT

1 HER HONOUR: By notice of motion filed on 21 July 2003, the defendant to these proceedings, Robin Grille, seeks the following orders:

“1. The plaintiff provide security for costs to the defendant in the sum of $40,000 within 21 days.

2. The plaintiff’s claim be stayed until the provision of such security.

3. …

4. …”

2 The substantive proceeding is a claim in defamation made by the plaintiff against the defendant. The plaintiff alleges that, in or about August and September 2002, the defendant published of and concerning the plaintiff material that defamed him. The matter complained of is an article of some length, said to have been written by the defendant and published in two magazines and on the internet. The article was headed:

“Fundamentalism: a war against children”

3 The statement of claim was filed on 30 May 2003. There is…

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.

Continue reading Ezzo v Grille

Details

AGLC: Ezzo v Grille [2003] NSWSC 776
Case: [2003] NSWSC 776
Decision Date: 21 August 2003

CaseChat Overview and Summary

The case of Ezzo v Grille involved a defamation dispute where the plaintiff, Ezzo, resided outside the state of New South Wales. The defendant, Grille, applied for security for costs under the provisions of the Uniform Civil Procedure Rules. The matter was heard in the Supreme Court of New South Wales. The court had to determine whether the plaintiff could be required to provide security for the defendant's costs, given the plaintiff's residence outside the jurisdiction.

The primary legal issue before the court was whether the requirement for the plaintiff to provide security for costs was appropriate, considering the plaintiff's residence outside the state. The court had to balance the plaintiff's right to pursue a claim against the potential financial burden on the defendant if the claim were to be unsuccessful. The court examined the principles established in relevant case law and the specific provisions of the Uniform Civil Procedure Rules concerning security for costs.

The court held that the requirement for security for costs was not applicable in this case due to the plaintiff's residence outside the jurisdiction. The court emphasised that the rules concerning security for costs were intended to protect defendants from the risk of unrecoverable costs in cases where there was a significant possibility of the plaintiff's claim being unsuccessful. However, when the plaintiff resided outside the state, the risk of the plaintiff being unable to satisfy a costs order was significantly reduced. Therefore, the court found that the application for security for costs was not justified.

As a result of the court's decision, the application for security for costs was dismissed. The plaintiff was not required to provide security for the defendant's costs, allowing the defamation claim to proceed without this additional financial burden. The court's ruling acknowledged the unique circumstances of the case, where the plaintiff's residence outside the jurisdiction impacted the assessment of the risk to the defendant.

Orders