Fleming v Advertiser News Weekend Publishing Company Pty Ltd (No 3)

In the matter of Fleming v Advertiser News Weekend Publishing Company Pty Ltd (No 3), the applicant, a Catholic priest, appeals against an order for security for costs made by the primary judge in defamation proceedings against the respondent, a media publisher. The applicant argues that the trial judge made serious errors in reaching the factual findings critical to his finding on justification, and that the impugned publications materially contributed to his impecuniosity and inability to meet the order for costs already made. The court was required to determine whether the order for security for the costs of the appeal would cause serious injustice to the applicant. The court considered the discretionary considerations relevant to exercising its discretion, including the prospects of success on appeal and the potential injustice to the applicant if the appeal were to be stultified by an order for security. The court concluded that it was not in a position to conclude that the appeal court will not interfere with the crucial findings, and that the order for security would cause serious injustice to the applicant. The application for security was dismissed.

The court held that the discretionary considerations are not necessarily exhaustive, and that what constitutes a relevant consideration will depend upon the circumstances of each case. The court acknowledged that the appeal would face considerable challenges in overturning the critical findings of fact made by the judge, but that the role of an appellate court is to conduct a real review of the relevant evidence. The court also considered the fact that the impugned publications had materially contributed to the applicant's impecuniosity and inability to meet the order for costs already made, and that there was no one, apart from his wife, standing behind the applicant who was funding this appeal. The court concluded that it would be unjust if an order for security stultified the applicant'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. The court was persuaded it would be unjust to deprive the applicant of the opportunity on appeal to have findings he submits were made erroneously set aside and his reputation vindicated. The court dismissed the application for security. The court will hear the parties as to the costs of the application.