Globe Valley Pty Ltd v Craven - [2018] QCA 328

[2018] QCA 328

COURT OF APPEAL

GOTTERSON JA

Appeal No 11539 of 2018
DC No 228 of 2018

GLOBE VALLEY PTY LTD First Applicant ACN 056 599 654

DEBORAH HEGARTY Second Applicant

PETER ROSS HEGARTY Third Applicant v

GORDON JAMES CRAVEN Respondent BRISBANE

TUESDAY, 27 NOVEMBER 2018 JUDGMENT

GOTTERSON JA: The three applicants for an order for security for costs, Globe Valley Pty Ltd, Peter Ross Hegarty and Deborah Hegarty, are the respondents to an appeal by the respondent to their application, Gordon James Craven. The appeal was commenced by Mr Craven on 23 October 2018 upon the filing of a notice of appeal. He is appealing against orders made by a judge of the District Court ex tempore on 27 September 2018. By those orders, a proceeding that Mr Craven had brought in the District Court against the applicants and others for defamation was dismissed as a proceeding against the applicants. He was ordered to pay their costs.

The proceeding was dismissed under r 674(c) of the Uniform Civil Procedure Rules (UCPR) in circumstances where Mr Craven had failed to comply with an order earlier made by another judge of the District Court on 10 August 2018 that he provide security for the costs of the applicants as defendants in the proceeding. The order required security in the amount of

$10,000 to be provided in a form satisfactory to the registrar by 4 pm on 24 August 2018. Such security was not provided. Mr Craven did not seek leave to appeal against the security for costs order; however, he did file an application pursuant to r 675 of the UCPR, which was returnable on 2 October 2018, for an order setting aside that order. The learned primary judge considered that that application had dismal prospects of success. When he made orders, he vacated the hearing date for that application, the need for a hearing having been displaced by the dismissal of his proceeding.

The present application was filed on 5 November 2018. It is made under r 772 of the UCPR. This rule confers an unfettered discretion to order payment of security for costs in an appeal. The factors relevant to the exercise of the discretion have been identified and discussed in a number of decisions of this court. Mr Craven is acting for himself. His notice of appeal sets out some 13 grounds of appeal, most of which are expressed in terms of recourse to “the justice of the case in all the circumstances”. What is relevant for present purposes are the prospects of success that Mr Craven’s appeal has. The strong impression I have is that they are poor for the following reasons.

The order dismissing the proceeding was a discretionary one. The circumstance necessary for the engagement of the discretion under r 674(c), namely, a failure to provide security as ordered, had indisputably occurred. Further, Mr Craven has not advanced any persuasive argument to the effect that the decision of the judge…

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: [2018] QCA 328
Decision Date: 27 NOVEMBER 2018

CaseChat Overview and Summary

In the matter of Globe Valley Pty Ltd v Craven, the Court of Appeal was tasked with determining whether the appellant, Gordon James Craven, was required to provide security for costs in an appeal against an earlier order dismissing his defamation proceeding against the respondents. The respondents, Globe Valley Pty Ltd, Deborah Hegarty, and Peter Ross Hegarty, had successfully applied for an order for security for costs in the District Court, which Craven had failed to comply with, leading to the dismissal of his proceeding. Craven appealed this decision, arguing against the imposition of security for costs in the appeal.

The legal issues before the Court of Appeal centred on whether the appellant had a reasonable prospect of success in his appeal and whether the imposition of security for costs would stifle his ability to pursue the appeal. The Court considered the discretionary nature of the security for costs order and the relevant factors guiding the exercise of that discretion, including the appellant's financial position and the absence of special circumstances that would justify setting aside the security for costs order.

In its judgment, the Court found that the appellant's prospects of success in the appeal were poor, primarily due to the clear failure to comply with the security for costs order in the District Court and the absence of any persuasive argument that the primary judge's decision was flawed. The Court also noted the appellant's history of financial difficulties, including a bankruptcy originating from a failure to pay costs in a previous proceeding. The Court concluded that these factors strongly supported the imposition of security for costs in the appeal. While the appellant argued that he was unable to provide such security and that it would stifle his appeal, the Court weighed these arguments conservatively and determined that they did not outweigh the compelling case for an order for security for costs.

The Court ordered that the appellant provide security for costs in the amount of $10,000 within 28 days. The costs of the application were awarded to the respondents. The Court also granted liberty to apply and adjourned the matter.

Orders