SUPREME COURT OF QUEENSLAND
CITATION: Kennedy v Nine Network Australia P/L [2008] QSC 134 PARTIES:
GREG KENNEDY (plaintiff/respondent)
v NINE NETWORK AUSTRALIA PTY LTD
(defendant/applicant)FILE NO/S: BS 3276/04 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 16 June 2008 DELIVERED AT: Brisbane HEARING DATE: 5 June 2008 JUDGE: Dutney J
ORDER:
1.
That the Plaintiff provide security for the Defendant’s costs in the sum of $150,000.00
2. That Messrs Thynne & Macartney be at liberty to
peruse and make a copy of the two affidavits of Mr
Kennedy sworn on 3 November 2003 and 4
November 2003 respectively (documents 2 and 3
on file 9981/03) and the affidavit of Mr Coulthart
sworn 4 November 2003 (document 5 on file
9981/03) subject to paying the normal fees charged
by the registry3.
Paragraphs 28, 44 and 64 of the further amended statement of claim be struck out
4. That the applications otherwise be dismissed 5. Each parties costs are costs in the proceedings 6.
That the matter be placed on the Supervised Case List.
CATCHWORDS: PROCEDURE – COSTS – SECURITY FOR COSTS –
RESIDENCE OUT OF JURISDICTION – where plaintiff
started proceedings against defendant for defamation in 2004
– where plaintiff ceased to reside in Australia and took up
residence in Singapore in 2005 – where defendant was not
aware that plaintiff was no longer resident in Australia until
October 2007 – where defendant has no identifiable assets in
the jurisdiction – where proceedings for defamation are
genuine – whether security for costs should be orderedPROCEDURE – COSTS – SECURITY FOR COSTS – OTHER REASONS FOR SECURITY – where defendant did not give notice of intention to apply for security for costs until April 2008 – where high proportion of costs incurred by defendant since notice was first given of an intention to apply for security for costs – where the obligation to pay the other party’s costs if the action is discontinued becomes a positive obstacle to settlement
PROCEDURE – DISCOVERY AND
INTERROGATORIES – DISCOVERY AND
INSPECTION OF DOCUMENTS – PRODUCTION AND
INSPECTION – GROUNDS FOR RESISTING
PRODUCTION – LEGAL PROFESSIONAL PRIVILEGE –
WAIVER OF PRIVILEGE – where defendant broadcast
stories on “A Current Affair” in relation to the plaintiff and in
relation to World Games Inc System, the business run by the
plaintiff – where prior to the stories being broadcast the
plaintiff sent a letter to defendant concerning the legality of
the World Games Inc System – where the letter forms a claim
for aggravated and exemplary damages – whether the letter
should be disclosed – whether the letter is subject to legal
professional privilege – whether legal professional privilege
has been waivedPROCEDURE – SUPREME COURT PROCEDURE –
QUEENSLAND – PRACTICE UNDER RULES OF COURT
– PLEADING – STATEMENT OF CLAIM – where
application by defendant to strike out imputation in further
amended statement of claimUniform Civil Procedure Rules 1999 (Qld) rr 160, 161, 162 Attorney-General for the Northern Territory v Maurice
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- Case
- [2008] QSC 134
- Decision Date
CaseChat Overview and Summary
The legal issue before the court was whether Mr Kennedy, who resided in New South Wales but had previously resided in Queensland, was required to provide security for costs. Under Australian law, a plaintiff who resides outside the jurisdiction of the court is generally required to provide security for costs, but this requirement can be waived if the plaintiff can demonstrate that they will be able to pay costs if the defendant is successful. The court had to determine whether Mr Kennedy's circumstances justified a waiver of the security for costs requirement.
The court found that Mr Kennedy's previous residence in Queensland, a different jurisdiction, was sufficient to require him to provide security for costs. However, the court also considered that Mr Kennedy's financial circumstances, including his ability to pay costs if the defendant were successful, warranted a waiver of the security for costs requirement. The court was satisfied that Mr Kennedy had provided adequate evidence of his financial situation and ordered that the requirement for security for costs be waived.
The court's decision was that the requirement for security for costs was waived, allowing the defamation action to proceed without Mr Kennedy having to provide security for costs. The court's ruling was based on the plaintiff's demonstrated ability to pay costs if the defendant were successful, despite his residence outside the jurisdiction of the court.
Orders
Orders of the court
1.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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