Lesses v Maras - [2016] SASC 117

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
LESSES v MARAS
[2016] SASC 117
Judgment of The Honourable Justice Doyle (ex tempore)
26 July 2016
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS
The respondent successfully sued the appellant in defamation. The appellant commenced an appeal, and the respondent seeks an order granting security for costs of the appeal.
Held (per Doyle J), granting the application:
1. It is appropriate to order security for the respondent’s costs of the appeal.
Supreme Court Civil Rules 2006 (SA) r 295(1)(g), referred to.
Fleming v Advertiser News Weekend Publishing Company Pty Ltd (No 3) [2016] SASC 81; Diakos v Mason [2010] SASC 108; Sands v State of South Australia [2013] SASC 105; Schuller v S J Webb Nominees Pty Ltd [2015] SASC 8, considered.

LESSES v MARAS
[2016] SASC 117
Civil.
DOYLE J (ex tempore):

The respondent seeks an order granting security for its costs of the appellant’s appeal.
Background
By way of background, the parties are both members of the Greek Orthodox Community of South Australia Incorporated, or GOCSA. The respondent sued the appellant in defamation. The claim alleged three defamatory publications, each of which was said to give rise to imputations that the appellant was untrustworthy and did not care about the GOCSA churches.
The respondent's claim succeeded. In summary, the trial judge held that the imputations were conveyed and were defamatory. In relation to the common law defence of qualified privilege, while the relevant imputations were conveyed on an occasion of privilege, the defence was defeated by a finding of malice. The finding of malice was also fatal to the existence of a statutory defence of qualified privilege. The defences of truth and fair comment or honest opinion were also not made out. Damages in the amount of $75,000 were awarded. The claim for aggravated damages was dismissed. The trial judge subsequently ordered that the appellant pay 90 per cent of the respondent's cost of the action on an indemnity basis.
The appellant has appealed on various grounds. Grounds 1-8 involve a challenge to the trial judge's finding of malice. Ground 9 involves an allegation the trial judge failed to properly consider the appellant's defence of fair comment or honest opinion. Grounds 10-12 involve a challenge to the findings that the two imputations relied upon by the respondent were conveyed and defamatory. There is also a notice of cross-appeal and alternative contention in which the respondent seeks to challenge the trial judge's finding that the publications occurred on an occasion of privilege.
The application for security for costs
This application for security for costs is brought pursuant to r 295(1)(g) of the Supreme Court Civil Rules 2006 (SA). Under the current version of that rule, the discretion to grant security is not conditioned upon a finding of special circumstances. Rather the court has an unfettered discretion, albeit one that must, of course, be exercised judicially…

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 Lesses v Maras

Details

AGLC: Lesses v Maras [2016] SASC 117
Case: [2016] SASC 117
Decision Date: 26 July 2016

CaseChat Overview and Summary

The case of Lesses v Maras involves a dispute between two members of the Greek Orthodox Community of South Australia Incorporated. Maras, the respondent, successfully sued Lesses, the appellant, for defamation. The trial judge found that three defamatory publications were made, each implying that Lesses was untrustworthy and did not care about the GOCSA churches. The court held that the imputations were conveyed and defamatory, and awarded damages of $75,000. The appeal against this decision seeks to challenge various findings of the trial judge, including the finding of malice and the denial of the defences of qualified privilege, truth, fair comment, and honest opinion.

The legal issues before the court included whether the appeal had sufficient prospects of success to warrant an order for security for costs. The court was required to balance the principle that security for costs is an exceptional remedy against the respondent’s right to enforce the judgment and the appellant’s impecuniosity. The court also had to consider the nature of the appeal and the merits of the arguments advanced by the parties.

The court found that the appeal was not hopeless and had moderate prospects of success. It noted that the main issue on appeal was the trial judge’s finding of malice, which was based on certain factual findings and admissions by the appellant. The court was satisfied that the appeal was bona fide and that there was no suggestion that the respondent’s conduct had caused the appellant’s impecuniosity. The court concluded that it was appropriate to order security for costs, given the appellant’s inability to pay costs if the appeal was unsuccessful, and ordered that the prosecution of the appeal be stayed until the appellant paid $25,000 into court.

The court ordered that the prosecution of the appeal is stayed until the appellant has paid into Court the sum of $25,000 to secure the respondent’s costs of the appeal. This order ensures that the respondent can enforce the judgment without the risk of the appellant being unable to pay costs if the appeal is unsuccessful.

Orders

Orders of the court

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Background

Background to the litigation

The respondent seeks an order granting security for its costs of the appellant’s appeal. Background By way of background, the parties are both members of the Greek Orthodox Community of South Australia Incorporated, or GOCSA. The respondent sued the appellant in defamation. The claim alleged three defamatory publications, each of which was said to give rise to imputations that the appellant was untrustworthy and did not care about the GOCSA churches. The respondent's claim succeeded. In summary, the trial judge held that the imputations were conveyed and were defamatory. In relation to the common law defence of qualified privilege, while the relevant imputations were conveyed on an occasion of privilege, the defence was defeated by a finding of malice. The finding of malice was also fatal to the existence of a statutory defence of qualified privilege. The defences of truth and fair comment or honest opinion were also not made out. Damages in the amount of $75,000 were awarded. The claim for aggravated damages was dismissed. The trial judge subsequently ordered that the appellant pay 90 per cent of the respondent's cost of the action on an indemnity basis. The appellant has appealed on various grounds. Grounds 1-8 involve a challenge to the trial judge's finding of malice. Ground 9 involves an allegation the trial judge failed to properly consider the appellant's defence of fair comment or honest opinion. Grounds 10-12 involve a challenge to the findings that the two imputations relied upon by the respondent were conveyed and defamatory. There is also a notice of cross-appeal and alternative contention in which the respondent seeks to challenge the trial judge's finding that the publications occurred on an occasion of privilege.The application for security for costs This application for security for costs is brought pursuant to r 295(1)(g) of the Supreme Court Civil Rules 2006 (SA). Under the current version of that rule, the discretion to grant security is not conditioned upon a finding of special circumstances. Rather the court has an unfettered discretion, albeit one that must, of course, be exercised judicially and having regard to established principles.[1] [1] Fleming v Advertiser News Weekend Publishing Company Pty Ltd (No 3) [2016] SASC 81 at [13]-[14]. Those established principles make it plain that in the circumstances of the present matter the following considerations are relevant. First, the application is for security for the costs of an appeal rather than a trial. Courts will more readily order for security in the former category of case because the appellant has already had the opportunity to have the matter litigated, and has had the benefit of a judicial determination of the underlying controversy.[2] On the other hand, it is also a relevant factor (and to some extent weighs against an order for security) that the appellant was the defendant below and not the plaintiff.[2] Diakos v Mason [2010] SASC 108 at [10]; Sands v State of South Australia [2013] SASC 105 at [32].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOYLE J

Finally, it is relevant on applications such as the present to have some regard to the merits of the proposed appeal. However, the extent to which it is possible or appropriate to do so depends to some extent upon the nature of the matter and the issues raised. In this case it is difficult to take the matter much further than to make a few broad observations. The first is that I am satisfied the appeal is not hopeless. It is a bona fide appeal with at least some prospects of the success. The second is that it appears the real battleground on the appeal will be the challenge to the trial judge's finding of malice. In this respect it is relevant that the appellant will need to overcome, either by overturning or navigating his way around, a series of factual findings made by the trial judge to the effect that the appellant did not believe various of the statements made in the defamatory publications. Further, it would appear that at least some of those findings were made on the basis of admissions by the appellant. While the appeal will involve a rehearing in which the appeal court will need to undertake an independent assessment of the evidence and reach its own conclusion on the various issues of fact, it will, nevertheless, do so having regard to the findings of the trial judge, and in particular those that are based upon, or involved a use of, the trial judge's advantage of having heard and seen the relevant witnesses. In my view, in the circumstances, the most that can be said about the appeal’s prospects of success is that they are moderate.Conclusion In summary, it is relevant that the application for security relates to an appeal; that the appellant is impecunious (with the result that there is a significant risk, if not inevitability, that absent an order for security for costs the respondent will be unable to recover his costs if the appeal is unsuccessful); that there is no suggestion that the respondent’s conduct in any way caused that impecuniosity; that the evidence does not establish the appeal will be stultified if I were to order security; and that the appeal has only moderate prospects of success. Bearing all of these considerations in mind, I consider it appropriate to order security for the respondent’s costs of the appeal. I propose to do so in the sum of $25,000. I order that the prosecution of the appeal is stayed until the appellant has paid into Court the sum of $25,000 to secure the respondent’s costs of the appeal.

Ratio Decidendi

Legal Principle Established

Established by: DOYLE J

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