Kirkham v Tassone - [2015] SASCFC 21

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
KIRKHAM v TASSONE
[2015] SASCFC 21
Reasons for Decision of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Nicholson)
3 March 2015
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS
Applicant seeks permission to appeal to the Full Court against a decision of a single Judge granting the respondent security for costs in respect of an appeal to the Full Court from a judgment of the District Court. Application considered in private by the Full Court. The grounds of an appeal do not raise reasons that justify permission to appeal. Permission refused.
Surpeme Court Civil Rules 2006 r 290, r 295(1)(g), referred to.
Kirkham v Tassone [2015] SASC 6; Sands v The State of South Australia [2013] SASC 105, discussed.
Tassone v Kirkham [2014] SADC 134; Landmark Operations Ltd v Tiver Nominees Pty Ltd [20090] SASC 185, considered.

KIRKHAM v TASSONE
[2015] SASCFC 21
Full Court: Gray, Sulan and Nicholson JJ

THE COURT: The applicant, Stephen Kirkham, seeks permission to appeal to the Full Court from a decision of the Chief Justice. The application has been considered on the papers, in accordance with rule 290 of the Supreme Court Civil Rules 2006.
The respondent, Cosimo Tassone, applied for security for costs in respect of an appeal to the Full Court brought by Mr Kirkham against a decision of a Judge of the District Court.
On 22 January 2015, the Chief Justice concluded that Mr Tassone had established special circumstances, and he ordered Mr Kirkham to provide security for costs in the sum of $20,000.
The appeal to the Full Court is against a judgment of a Judge of the District Court[1] who concluded that Mr Tassone had been defamed by Mr Kirkham whilst the parties were both employed as Correctional Services Officers. The Judge considered that Mr Kirkham had used Mr Tassone’s email account improperly and posted a defamatory email which gave readers the impression that Mr Tassone was a homosexual. The Judge concluded that, although it was not defamatory to say of someone that he was a homosexual, the email contained defamatory imputations that Mr Tassone is promiscuous, is of loose moral character, is seeking to solicit sexual relationships with people he does not otherwise know, and is a person who used his employment to solicit sexual relationships and was thereby acting in an inappropriate manner in the course of his employment.
[1] Tassone v Kirkham [2014] SADC 134.
The Chief Justice observed that Mr Kirkham had divested himself of the majority of his assets and had advised Mr Tassone that he, Mr Kirkham, was not in a position to satisfy any judgment, and invited Mr Tassone to discontinue the original proceedings.
The Chief Justice concluded that, in considering the application for security of costs, relevant matters were the estimated costs of the appeal, the prospects…

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.

Continue reading Kirkham v Tassone

Details

AGLC: Kirkham v Tassone [2015] SASCFC 21
Case: [2015] SASCFC 21
Decision Date: 3 March 2015

CaseChat Overview and Summary

Kirkham v Tassone concerned an appeal to the Full Court of the Supreme Court of South Australia regarding an application for security for costs. The dispute arose from an earlier decision of a single judge of the Supreme Court.

The primary legal issue before the Full Court was whether the single judge had erred in refusing to order the appellant (the plaintiff in the original proceedings) to provide security for the respondent's (the defendant's) costs. This involved considering the principles governing applications for security for costs, particularly in circumstances where the plaintiff might be unable to pay the defendant's costs if the defence were successful.

The Full Court reviewed the evidence and the single judge's reasoning. It applied the established legal principles for granting security for costs, which generally require a demonstration that the plaintiff has insufficient assets within the jurisdiction to meet the defendant's costs and that there is a real risk that the defendant would be unable to recover those costs. The Court considered whether the single judge had given sufficient weight to these factors and whether the exercise of discretion was demonstrably wrong.

The Full Court allowed the appeal, finding that the single judge had erred in the exercise of their discretion. Consequently, the Court ordered that the appellant provide security for the respondent's costs of the appeal in a specified amount, and that the appeal be stayed until such security was given.

Orders