Li v Herald & Weekly Times Pty Ltd - [2008] VSCA 201

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 4641 of 2004

ABBIE LI & ANOR
	v
THE HERALD AND WEEKLY TIMES PTY LTD & ANOR

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JUDGES:	MAXWELL P and ASHLEY JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 October 2008
DATE OF JUDGMENT:	10 October 2008
MEDIUM NEUTRAL CITATION	[2008] VSCA 201	1^st Revision 20 November 2008

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APPLICATION ON SUMMONS

PRACTICE AND PROCEDURE – Appeal – Security for costs of appeal – Whether amount of additional security ordered should be reduced – Relevance of lateness of application for additional security – Stay of execution – Bankruptcy notice issued by respondents as judgment creditors – Whether bankruptcy of appellant would render appeal nugatory.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr J G Levine	Frank A Sanna
For the Respondents	Ms G L Schoff	Corrs Chambers Westgarth

MAXWELL P
ASHLEY JA:

By summons dated 23 September 2008, the appellants seek relief of two kinds. First, they seek an order under rule 64.16(2)(a) that their appeal shall be taken not to be abandoned. The deemed abandonment occurred because of the late filing of the appeal book. This order is not opposed, and will be made.

Secondly, the appellants seek a variation of the order which we made on 17 September 2008, requiring them to give additional security for the respondents’ costs of the appeal in the sum of $45,000. The appellants seek a reduction in the amount of the further security to $10,500. That application is opposed.

At the beginning of the hearing, counsel for the appellants made oral application for a stay of the order made by the trial judge, that they pay the defendants’ (now respondents’) costs of the proceeding, which have been taxed in the sum of $367,832.86. That application is also opposed. We deal first with the security for costs application, noting that it was not suggested by either side that the Court lacked power to make the order which was sought.

Application to reduce the amount of the further security for costs

As already mentioned, on 17 September 2008 the Court ordered that the appellants pay the sum of $45,000 by way of security for the respondents’ costs of the appeal. This amount was additional to an amount of $25,000, ordered to be paid by Nettle and Redlich JJA on 25 July 2007. On each occasion, detailed reasons were given for the orders made, and it is unnecessary to repeat what was then said.

The hearing of the appeal has been set down for 27 and 28 October this year. The order of 17 September required the additional security to be paid within 14 days, and it was ordered that, failing the making of the payment, the appeal be stayed. Liberty to apply was reserved, pursuant to which the present application was made.

The basis of the application to have the amount of security reduced is that the appellants have been able in the limited time to raise only the sum of $10,500. The…

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.

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Details

Case: [2008] VSCA 201
Decision Date: 10 October 2008

CaseChat Overview and Summary

In Li v Herald & Weekly Times Pty Ltd, the applicant sought an order reducing the amount of additional security for costs of appeal that had been imposed by the primary judge. The respondent had issued a bankruptcy notice to the applicant, and the applicant argued that if they were declared bankrupt, the appeal would become ineffective. The matter was heard in the Federal Court of Australia.

The court was required to determine whether the amount of additional security ordered by the primary judge should be reduced. Additionally, the court had to consider the relevance of the lateness of the application for additional security and whether the bankruptcy of the appellant would render the appeal ineffective. The primary judge had ordered the appellant to provide additional security for costs of appeal, and the appellant sought to reduce this amount, arguing that the primary judge had not properly considered the circumstances of the case.

The court found that the primary judge had not erred in ordering the additional security. The court held that the lateness of the application for additional security was relevant, and the appellant had not demonstrated that the amount of security ordered was excessive. The court also found that the bankruptcy of the appellant would not render the appeal ineffective, as the appellant could still pursue the appeal through their trustee in bankruptcy. The court dismissed the application for reduced security and denied the application for a stay of execution of the bankruptcy notice.

No orders were made in relation to the application for reduced security or the application for a stay of execution of the bankruptcy notice.

Orders