Kelly v Hilton [No 2]

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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

  1. 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. 

  2. 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…

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Details
Case
[2022] WASC 374
Decision Date

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

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.