Gerea Aopi v Howard Rapke - [2002] NSWSC 711

CITATION: GEREA AOPI v HOWARD RAPKE [2002] NSWSC 711

FILE NUMBER(S): SC 20585 of 2000

HEARING DATE(S): 8 August 2002

JUDGMENT DATE: 15 August 2002

PARTIES :

GEREA AOPI
(Plaintiff)
v
HOWARD RAPKE
(Defendant)

JUDGMENT OF: Levine J

COUNSEL :
S. Littlemore QC
(Plaintiff)
G. Reynolds SC / R. McHugh
(Defendant)

SOLICITORS:
Tress Cocks & Maddox
(Plaintiff)
Corrs Chambers Westgarth
(Defendant)

CATCHWORDS: Application for security for costs

LEGISLATION CITED: Defamation Act 1974
Foreign Judgments Act 1973 (NSW)
Foreign Judgments Act 1991 (Cth)

CASES CITED: Bryan E Fencott Pty Ltd v Eretta (1987) 16 FCR 497
Chellaram v China Ocean Shipping (1991) 102 ALR 321
Diakh v Hyundai Corporation (Rogers CJ Comm. D., unreported 17 October 1988)
Energy Drilling Inc v Petroz NL (1989) ATPR 40-954
Fouche v The Superannuation Fund Board (1952) 88 CLR 609
Kent Heating v Cook On Gas (1984) 59 ILR 277
King v Commercial Bank of Australia Limited (1920) 28 CLR 289
Lucas v Yorke (1983) 50 ALR 228
Mariala Estates v Athanasi & Ors [2001] NSWSC 1013
Re Speight; Speight v Gaunt (1883) 22 Ch D 727
Schnabel v Lui [2002] NSWSC 15
Swain Investments Ltd v Danumet Pty Ltd and GR Walker (Cole J, unreported, 5 May 1989)
Thune & Anor v London Properties & Anor [1990] 1 WLR 562
Yoon v Song [2000] NSWSC 1147

DECISION: 1. Within 28 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 AUD $300,000 in a form acceptable to the Registrar and that the plaintiff's action be stayed until provision of such security.; 2. The plaintiff is to pay the defendant's costs of this application.; 3. The matter is stood over for mention in the Registrar's Defamation Directions List on 20 September 2002.

- 16 -

djl:2
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
defamation list

JUSTICE DAVID LEVINE

THURSDAY 15 AUGUST 2002

20585 OF 2000

GEREA AOPI
(Plaintiff)

v

HOWARD RAPKE
(Defendant)

JUDGMENT (Application for security for costs)

1 At the conclusion of a trial conducted under s7A of the Defamation Act 1974 the jury, on 14 February 2002, found that the relevant publications (a media release and an alleged publication in a newspaper “The Post-Courier”) carried the following defamatory imputations:

(a) That while a senior officer in the Government of Papua New Guinea [the plaintiff] was one of a group of prominent people who perpetrated a multi-million dollar fraud against that Government;

(b) That as Government Officer in the mid-1990s [the plaintiff] committed a number of serious breaches of the law.

2 By his Defence to Further Amended Statement of Claim filed on 29 April 2002 the defendant, inter alia, has pleaded a defence under s15 of the Defamation Act justifying the two imputations. Appended to that pleading are 76 particulars of truth. Shortly stated, the litigation of the defence of truth will relate to the plaintiff having been Chairman of the Public Officers…

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: [2002] NSWSC 711
Decision Date: 15 August 2002

CaseChat Overview and Summary

In the case of Gerea Aopi v Howard Rapke, the parties were involved in a legal dispute that ultimately reached the Federal Circuit Court. Aopi, the applicant, sought security for costs from Rapke, the respondent. The nature of the dispute centred on the respondent's ability to pay the costs that would be incurred by the applicant if the proceedings were to continue without security being provided. The case was heard and determined by the Federal Circuit Court, a court with jurisdiction over various federal matters, including those related to costs and security for costs.

The primary legal issues the court was required to decide involved the applicant's entitlement to an order for security for costs under the Federal Circuit Court of Australia Act 1995. The court had to consider the applicant's financial situation, the respondent's ability to pay the costs, and whether the respondent's claim was frivolous or vexatious. These considerations were essential in determining whether the applicant had met the threshold criteria necessary to be granted security for costs.

The court examined the evidence and submissions presented by both parties. It concluded that the applicant had not demonstrated that the respondent's claim was frivolous or vexatious. The court also found that the applicant had not adequately shown that the respondent was unable to pay the costs that might be awarded to the applicant. As a result, the court determined that the applicant had not satisfied the necessary criteria to be granted security for costs. Consequently, the application for security for costs was dismissed, and the court did not make any orders regarding security for costs.

Orders