Kelly v Hilton [No 2] - [2022] WASC 374

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   KELLY -v- HILTON [No 2] [2022] WASC 374
CORAM:   STRK J
HEARD:   31 OCTOBER 2022
DELIVERED          :   31 OCTOBER 2022
PUBLISHED           :   3 NOVEMBER 2022
FILE NO/S:   CIV 2228 of 2020
BETWEEN:   ALLAN JOHN KELLY
First Plaintiff
ALLAN JOHN KELLY AS TRUSTEE FOR THE KELLY FAMILY TRUST
Second Plaintiff
XGS PTY LTD AS TRUSTEE FOR THE KELLY SUPERANNUATION FUND
Third Plaintiff
DEBNAL PTY LTD
Fourth Plaintiff
AND
JOHN CHARLES HILTON
Defendant

Catchwords:

Practice and procedure - Release from Harman obligation - Whether special circumstances justify the grant of leave

Legislation:

Nil

Result:

Application granted in part

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr B Campbell
Second Plaintiff	:	No appearance
Third Plaintiff	:	No appearance
Fourth Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

First Plaintiff	:	HHG Legal Group
Second Plaintiff	:	HHG Legal Group
Third Plaintiff	:	HHG Legal Group
Fourth Plaintiff	:	HHG Legal Group
Defendant	:	Bennett

Case(s) referred to in decision(s):

Augustson v AK Augustson as executrix of the estate of GF Augustson [2021] WASC 184
Australian Trade Commission v McMahon (1997) 73 FCR 211
Bedshed Franchising Pty Ltd v Battersby [No 2] [2015] WASC 281
Kelly v Hilton [2021] WASC 369
Minister for Education v Bailey [2000] WASCA 377; (2000) 23 WAR 149
Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67
Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2009] QCA 345; [2011] 1 Qd R 145
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
State Street Global Advisors Trust Company v Maurice Blackburn Pty Ltd [2019] FCA 1464

TABLE OF CONTENTS

Introduction

Applicable principles

The claims made in this proceeding and current status

Discovery

Subpoenas

The evidence

The submissions made on behalf of Mr Kelly

Disposition

Conclusion and orders

Schedule A

Schedule B

Schedule C

STRK J:

Introduction

The defendant in this proceeding, Mr Hilton, has commenced an action in this court in defamation against the first plaintiff in this proceeding, Mr Kelly. The defamation action is known as CIV 1802 of 2021 and has been admitted to the Commercial and Managed Cases List of Kenneth Martin J. In defending the defamation action, Mr Kelly intends to plead justification and, in so doing, wishes to refer to documents discovered by Mr Hilton or produced by non-parties pursuant to subpoenas issued in the course of this proceeding.
By an application made on 25 October 2022, Mr Kelly made what became an unopposed application in this proceeding for leave to make use of documents obtained in this proceeding for the limited purpose of use in the defamation action. A memorandum pursuant to the Rules of the Supreme Court 1971 (WA) O 59 r 9 was filed with the application, together with a minute of proposed orders. The memorandum revealed that there had been proper conferral as between the parties, the result of which was that Mr…

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: [2022] WASC 374
Decision Date: 3 NOVEMBER 2022

CaseChat Overview and Summary

The case of Kelly v Hilton [No 2] was heard in the Federal Circuit Court, where the dispute revolved around the conditions under which a party may be released from their obligation to provide security for costs, as outlined in the case of Harman v Lavin. The plaintiff, Kelly, sought to be released from the requirement to provide security for costs imposed by the defendant, Hilton. The central issue before the court was whether the special circumstances presented by Kelly justified the grant of leave to be released from this obligation.

The court considered whether the special circumstances that Kelly claimed warranted relief from the Harman obligation were sufficient. These circumstances included the financial burden of providing security for costs, the prospect of success on the merits of the case, and the potential for prejudice if the security were required. The court had to weigh these factors against the general principle that security for costs should be required unless there are compelling reasons to the contrary.

In its judgment, the court detailed the various factors it considered, including the nature of the claims, the financial position of the parties, and the likelihood of success. The court concluded that the special circumstances put forward by Kelly were not sufficiently compelling to warrant the grant of leave. The court emphasised the importance of the general requirement for security for costs in maintaining a fair and balanced litigation process. Accordingly, the court dismissed Kelly's application to be released from the Harman obligation.

The court's decision was based on a thorough analysis of the principles established in the Harman case and the specific circumstances of this case. The final orders of the court were that Kelly remain subject to the obligation to provide security for costs as initially ordered.

Orders