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 of success on appeal and the course of the litigation generally, together with the impecuniosity of Mr Kirkham. The Chief Justice observed:[2]
The circumstances of this case are illustrative of the way in which circumstances of the kind to which I have just referred may combine with an appellant’s impecuniosity to constitute special circumstances. First, Mr Kirkham does not contest now that he did send the email. It follows that it is now uncontested that he deliberately caused Mr Tassone embarrassment for his own amusement by sending that email. Moreover, it follows that he unnecessarily added to the costs of the proceedings before the Judge by denying that he had done so. Indeed he enlisted the witness, Mr Murti, in support of that false position.
[2] Kirkham v Tassone [2015] SASC 6 at [20].
The Chief Justice considered that Mr Tassone’s case was, and remained, strong and that he had suffered greatly as a result of the conduct of Mr Kirkham. The Chief Justice observed that Mr Tassone was likely to incur further costs on the appeal which would not be recoverable if he were successful, and that Mr Kirkham has no assets at risk if the judgment stands.
The Chief Justice sought further information from Mr Kirkham’s solicitors in which they advised that Mr Kirkham did not personally fund the defence of the proceedings, that no other person paid his legal costs, that Mr Kirkham was not funding the appeal personally, and that a third person had not agreed to pay Mr Tassone’s legal costs. It was confirmed that Mr Kirkham’s solicitors had acted on a speculative basis and continued to do so on the appeal. The Chief Justice concluded that the appeal has been facilitated by an arrangement with Mr Kirkham’s solicitors.
Mr Kirkham contended that the Chief Justice erred in finding that special circumstances existed pursuant to rule 295(1)(g) of the Supreme Court Rules. It was submitted that the Chief Justice was in error in assessing the merits of the appeal, and that the sole issues to which he should have directed his consideration were whether the grounds of appeal were vexatious, frivolous and without merit. Mr Kirkham also relied upon a submission that the Chief Justice made errors of fact and failed to have regard to all grounds of appeal. Mr Kirkham also contended that the Chief Justice erred in finding that a contingency arrangement with his solicitors was relevant to the assessment of the application before him.
In Sands v The State of South Australia,[3] White J considered an application for security for costs in respect of an appeal in a defamation action. It was conceded that the appellant was impecunious. White J found it unnecessary to determine whether impecuniosity alone could establish special circumstances. He observed that it was sufficient to say that the appellant’s impecuniosity was a significant matter bearing on the existence of special circumstances. White J then had regard to the prospects to the success of the appeal and to the length of the trial. He further observed that the appellant’s solicitors and counsel had acted on a contingency basis and, although he was not aware of the precise arrangements under that agreement, in any event he concluded that it was apparent that the appellant’s solicitors would benefit substantially in the event of the success of the appeal.
[3] Sands v The State of South Australia [2013] SASC 105.
In our view, the factors relied on by the Chief Justice, including Mr Kirkham’s impecuniosity, his failure and inability to pay the judgment sum and costs, and that his solicitors stood to benefit if the appeal is successful, are relevant matters to which His Honour was entitled to have regard in deciding to order security for costs.
The matters raised by Mr Kirkham do not raise issues that justify permission to appeal. The Chief Justice’s decision was interlocutory. We are not satisfied that the decision to order security is attended with sufficient doubt to warrant reconsideration on appeal. Nor, in any event, does it have the effect of working a substantial injustice on Mr Kirkham.[4]
[4] See generally, Landmark Operations Ltd v Tiver Nominees Pty Ltd [2009] SASC 185.
We refuse permission to appeal to the Full Court.