Kirkham v Tassone - [2015] SASC 3

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
KIRKHAM v TASSONE
[2015] SASC 3
Reasons for Ruling of The Honourable Chief Justice Kourakis
22 January 2015
PROCEDURE - COSTS - SECURITY FOR COSTS
Mr Kirkham filed an application to appeal to the Full Court against a decision of a Judge in the District Court whereby judgment was entered for Mr Tassone in the amount of $176,408.81. Mr Tassone now applies for security for costs of that appeal.
Per Kourakis CJ (allowing the application):
Mr Tassone has established “special circumstances” pursuant to rule 295(1)(g) of the Supreme Court Civil Rules 2006. Mr Kirkham is to provide security for costs in the sum of $20,000. [at 27]
Supreme Court Civil Rules 2006 (SA) s 295; Bankruptcy Act 1966 (Cth) s 185C, referred to.
Viscariello v Livesey & Anor [2014] SASCFC 49, applied.

WORDS AND PHRASES CONSIDERED/DEFINED
"Impecuniosity", "Special Circumstances"

KIRKHAM v TASSONE
[2015] SASC 3
Civil

KOURAKIS CJ: This is an application by Mr Tassone for security of costs on an appeal brought by Mr Kirkham against the decision of a Judge of the District Court (the Judge) to the Full Court of this Court. On 24 September 2014 the Judge entered judgment for Mr Tassone in the sum of $176,408.81 plus costs in his defamation action against Mr Kirkham.
The application for security for costs was initially heard by Judge Dart; however the application was subsequently referred to me to decide in chambers, with the consent of both parties, as security for costs applications in the Full Court fall outside of the jurisdiction of Masters of the Supreme Court.
Both Mr Tassone and Mr Kirkham were correctional services officers. The defamatory publication on which Mr Tassone brought his action was an email sent to numerous correctional services officers and other public servants with whom he worked. The email was sent by someone improperly using Mr Tassone’s work email account, but made to appear as if it emanated from Mr Tassone. It read:
hello people, just a note to say that i am a homosexual and i am looking for like minded people to share time with
Records concerning the use of Mr Tassone’s computer terminal showed that Mr Kirkham had an opportunity to use Mr Tassone’s email account. At trial Mr Kirkham denied using Mr Tassone’s email account to send the email even though on the very day the email was sent, he had admitted to doing so to an investigator.
Mr Kirkham testified in the proceedings before the Judge that he did not send the email. He gave evidence that he was coerced into making a false confession. Mr Kirkham called another correctional services officer, Mr Murti, who was in the relevant office at the time to support his account. The Judge observed that inconsistencies between the testimony of Mr Kirkham and Mr Murti on the one hand, and their records of the interview with the Department of Correctional Services investigators reflected “very poorly on the integrity of both of them”.…

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] SASC 3
Case: [2015] SASC 3
Decision Date: 22 January 2015

CaseChat Overview and Summary

The case of Kirkham v Tassone was heard in the Supreme Court of New South Wales. The dispute revolves around an order for security for costs in the context of an appeal. Mr Kirkham, the appellant, is required to provide a sum of money as security to cover potential costs should the appeal be unsuccessful. Mr Tassone, the respondent, argues that Mr Kirkham's impecuniosity constitutes special circumstances warranting such an order.

The legal issues the court had to address were whether Mr Kirkham's financial situation amounted to special circumstances, and whether the impecuniosity of the appellant, coupled with the contingency fee arrangement with his solicitors, justified an order for security for costs. The court needed to determine if the appellant's financial position would result in unfairness to the respondent should the appeal be dismissed.

In delivering the decision, the court acknowledged that Mr Kirkham's appeal is supported by a contingency fee arrangement with his solicitors, which implies that he may lack the financial resources to cover potential costs if the appeal is unsuccessful. The court found that Mr Kirkham's impecuniosity, in the event of an unsuccessful appeal, would exacerbate the financial burden on Mr Tassone. The court concluded that Mr Tassone had demonstrated special circumstances warranting an order for security for costs. Consequently, the court ordered that Mr Kirkham provide security for costs in the sum of $20,000.

In summary, the court granted the respondent's application for security for costs, recognising the appellant's impecuniosity and the contingency fee arrangement as factors supporting such an order. The final order requires Mr Kirkham to provide $20,000 as security for costs.

Orders

Orders of the court

Mr Kirkham is to provide security for costs in the sum of $20,000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Kirkham’s solicitor responded on even date answering “no” to questions (a), (b), (d) and (f), and “yes” to questions (c) and (e). The circumstance that Mr Kirkham’s appeal has been facilitated by a contingency arrangement with his solicitors is a consideration which supports the making of an order for security for costs.Conclusion In the totality of the circumstances, Mr Kirkham’s impecuniosity is likely, if the appeal fails, to add insult to injury to Mr Tassone. I find that Mr Tassone has established special circumstances. I order that Mr Kirkham provide security for costs in the sum of $20,000.

Ratio Decidendi

Legal Principle Established

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