Fleming v Advertiser News Weekend Publishing Company Pty Ltd (No 3) - [2016] SASC 81

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
FLEMING v ADVERTISER NEWS WEEKEND PUBLISHING COMPANY P/L & ANOR (NO 3)
[2016] SASC 81
Judgment of The Honourable Justice Stanley
9 June 2016
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SECURITY FOR COSTS - FACTORS RELEVANT TO EXERCISE OF DISCRETION
This is an application for an order for security for the costs of an appeal to the Full Court.
The applicants were the defendants in an action for defamation brought by the appellant. A judge of this Court dismissed the appellant’s claim. The appellant sued in relation to five articles published between 31 August 2008 and 16 August 2009. The judge found that the articles conveyed the imputation that the appellant engaged in criminal sexual behaviour while an Anglican priest. The judge found that the defendants succeeded in their defence that this imputation was substantially true. The judge further held that the impugned publications conveyed the contextual imputations that the appellant, while an Anglican priest, engaged in criminal sexual behaviour, sexual misconduct, predatory sexual behaviour, morally reprehensible and deceitful conduct, an immoral, adulterous homosexual affair, hypocrisy, abuse of trust, moral cowardice and false denial of sexual involvement. The judge found that these contextual imputations were also substantially true.
The judge ordered that the appellant pay the applicant’s costs of the trial on an indemnity basis. Those costs are approximately $1.7 million.
The applicants seek an order that the appellant pay a sum of $125,000 as security for the costs of the appeal and that the appeal should be stayed until such security is paid into court.
Held:
1. The decision whether to order security for the costs of the appeal turns purely on discretionary considerations. The power to order security for costs on appeal is unfettered save and except that the discretion must be exercised judicially. Discretionary considerations relevant to an application for security for costs will depend upon the circumstances of each case (at [13] - [14]).
2. It would be unjust if an order for security stultified the appellant’s statutory right of appeal in the particular circumstances of his case. Real injustice would be occasioned if an order for security shut him out of his right to seek vindication of his reputation. While that right has already been tested in a lengthy trial, it would be unjust to deprive the appellant of the opportunity on appeal to have findings he submits were made erroneously set aside and his reputation vindicated (at [20]).
3. Application dismissed (at [21]).
Supreme Court Civil Rules 2006 (SA) r 295(1)(g), referred to.
Sands v State of South Australia [2013] SASC 105; Fox v Percy (2003) 214 CLR 118, considered.

FLEMING v ADVERTISER NEWS WEEKEND PUBLISHING COMPANY P/L & ANOR (NO 3)
[2016] SASC 81
Civil Application
STANLEY J:
Introduction

This is an application for an order for security for the costs of an appeal to the Full Court.
The applicants were the defendants in an action for defamation brought by the appellant. A Judge of this Court dismissed the appellant’s claim. The appellant sued in relation to five articles published between 31 August 2008 and 16 August 2009. The judge found that the articles conveyed the imputation that the appellant engaged in criminal sexual behaviour while an Anglican priest. The judge found that the defendants succeeded in their defence that this imputation was substantially true. The judge further held that the impugned publications conveyed the contextual imputations that the appellant, while an Anglican priest, engaged in criminal sexual behaviour, sexual misconduct, predatory sexual behaviour, morally reprehensible and deceitful conduct, an immoral, adulterous, homosexual affair, hypocrisy, abuse of trust, moral cowardice and false denial of sexual involvement. The judge found that these contextual imputations were also substantially true.
The judge ordered that the appellant pay the applicant’s costs of the trial on an indemnity basis. Those costs are approximately $1.7 million.
The applicants seek an order that the appellant pay a sum of $125,000 as security for the costs of the appeal and that the appeal should be stayed until such security is paid into court.
The case at first instance
The articles upon which the appellant sued accused him of sexual misconduct while serving as an Anglican priest. The sexual misconduct included having acts of masturbation and oral sex performed on him by an under aged teenage girl who was his parishioner.
At the trial, the applicants called evidenced from three witnesses, each of whom alleged that the appellant engaged in specific sexual conduct with them. These allegations concerned events that occurred some 40 years ago. The appellant gave evidence at trial and strenuously denied any misconduct or improper sexual behaviour with any of the three witnesses. The trial of the action ran for 37 sitting days.
In a lengthy judgment, the judge considered and analysed the evidence in relation to these matters and made findings of fact based, inter alia, upon his assessment of the credibility and reliability of the witnesses from whom he heard. In making findings of fact the judge purported to adopt the Briginshaw test in relation to the requisite degree of satisfaction for making findings in relation to allegations of serious misconduct. The judge found the allegations of two of three witnesses were true. Necessarily, he rejected the appellant’s denials. In relation to the allegations concerning the third complainant, the judge found that the applicants had not proved to the Briginshaw standard that the allegations based on the evidence of that complainant were true.
The position of the appellant
The appellant is 73 years old. He has been a priest his entire adult life. First, as a priest of the Anglican Church of Australia, the position he held at the time of the relevant events the subject of the impugned publications, and later as a Catholic priest. The appellant was ministering as a Catholic priest at the time of the publications. The appellant was employed as the President of Campion College in Sydney at the time of the first publication in August 2008. At that time, the Catholic Archbishop of Adelaide, Archbishop Philip Wilson, instigated an inquiry into the process and procedures adopted by the Catholic Church in investigating the complaints that had been made to the Church concerning the appellant’s alleged misconduct. That inquiry was to be conducted by Mr Michael Abbott QC.
Following the publication of the first article, the appellant voluntarily stood down from his duties as President of Campion College pending the outcome of that inquiry and any police investigation into the matter.
Ultimately the police investigation went nowhere. The appellant was informed by police in November 2008 that no charges would be laid, however, as the Abbott Inquiry had not been completed, Archbishop Wilson would not permit the appellant to resume his ministry as a Catholic priest. On 17 April 2009 Campion College terminated the appellant’s employment as its president. The position carried with it a salary package of $176,071 annually. The Abbott Inquiry was apparently concluded in November 2009. Since the termination of his employment by Campion College, the appellant has been unable to find full time employment. He has been limited to occasional contract teaching. As a consequence, his level of income has fallen dramatically.
There is no issue that the appellant is impecunious and would be unable to satisfy an order for security of the kind sought by the applicants.
Further, Mr Harris QC, counsel for the applicants, accepts that the allegations made in the impugned publications are devastating for the appellant’s reputation as a priest.
Power to order security for costs
The power to order security for costs of an appeal is conferred by 6SCR 295(1)(g). The exercise of the power is no longer conditioned upon the court being satisfied that special circumstances exist. Accordingly, the decision whether to order security for the costs of the appeal turns purely on discretionary considerations. The power to order security for costs on appeal is unfettered save and except that the discretion must be exercised judicially. Previously courts have found that considerations relevant to whether special circumstances exist also are relevant to the exercise of the discretion.[1] Discretionary considerations relevant to an application for security for costs include:
1.whether the appellant is out of the jurisdiction;
2.whether the appellant is impecunious;
3.if so, whether the cause of the impecuniosity has been the conduct of the applicants;
4.the prospects of success of the appeal;
5.the risk that if the appeal fails, the appellant would be unable to satisfy any costs order; and
6.whether an order for security would result in the stultification of the appeal.
[1] Sands v State of South Australia [2013] SASC 105 at [26].
These discretionary considerations are not necessarily exhaustive. What constitutes a relevant consideration will depend upon the circumstances of each case.
Consideration
I am not prepared to make an order for security for the costs of the appeal.
There is no dispute the appellant is within the jurisdiction.
In declining to make the order sought by the applicants, I acknowledge that in large part this was a facts case. The appellant on appeal in this matter will face considerable challenges in overturning the critical findings of fact made by the judge. Findings of fact based on the judge’s assessment of witnesses, including their demeanour, are not easily overturned. Nonetheless, the authorities emphasise that the role of an appellate court is to conduct a real review of the relevant evidence the subject of specific grounds of appeal, while recognising the disadvantage under which courts of appeal operate in undertaking such a review.[2] In this case, it is not possible on consideration of an application for security for the costs of an appeal to undertake an extensive analysis of the evidence so as to arrive at an informed assessment of the prospects of success on appeal. There are real difficulties confronting the appellant in overturning findings of fact based on the judge’s assessment of the crucial witnesses. But I am not in a position to conclude that the appeal court will not interfere with the crucial findings. Mr Heywood-Smith QC, counsel for the appellant, submits the trial judge made numerous errors in arriving at the findings of fact adverse to the appellant. These errors are encompassed in grounds 2, 4, 5, 6, 7, 9, 11 and 12 of the grounds of appeal. Moreover, the grounds of appeal are not confined to the contentions that the judge’s findings were against the evidence and the weight of the evidence. The appellant wishes to agitate the issue of whether the judge applied the Briginshaw test and whether in doing so he properly took account of inconsistencies in the evidence relevant to whether the alleged acts of sexual misconduct occurred. In the circumstances, I am not in a position to conclude that the prospects on appeal are hopeless.
[2] Fox v Percy [2003] HCA 22 at [25], (2003) 214 CLR 118 at 126 - 127.
That is relevant because there is no dispute that the order sought for security would stultify the appeal. While I accept that the evidence does not establish that the impugned publications caused the appellant to lose his employment with Campion College, I am satisfied that once he lost that employment in April 2009 the impugned publications have been a significant contributing factor to his inability to find other comparably remunerative employment. That is a fact material to his present impecuniosity.
It also is relevant that there is no one, apart from his wife, standing behind the appellant who is funding this appeal.[3]
[3] Sands v State of South Australia [2013] SASC 105 at [37] – [41].
In those circumstances, the stultification of the appeal by an order for security has the potential to cause serious injustice. A priest lives by his reputation for moral probity. The allegations made in the impugned publications and the judge’s finding that those allegations are substantially true is devastating to the appellant’s moral authority as a priest. On appeal the appellant seeks to argue that the trial judge made serious errors in reaching the factual findings critical to his finding on justification. In circumstances where the impugned publications have materially contributed to the appellant’s impecuniosity and inability to meet the order for costs already made, and any order for security for costs on the appeal, I consider that the justice of the case requires the rejection of the application for security. It would be unjust if an order for security stultified the appellant’s statutory right of appeal in the particular circumstances of his case. Real injustice would be occasioned if an order for security shut him out of his right to seek vindication of his reputation. While that right has already been tested in a lengthy trial, I am persuaded it would be unjust to deprive the appellant of the opportunity on appeal to have findings he submits were made erroneously set aside and his reputation vindicated.
Conclusion
The application is dismissed. I will hear the parties as to the costs of the application.