Mark Foys Pty Limited (ACN 052 917 183) v TVSN (Pacific) Limited (ACN 066 139 991)

[2000] FCA 1358

FEDERAL COURT OF AUSTRALIA

Mark Foys Pty Limited (ACN 052 917 183) v TVSN (Pacific) Limited (ACN 066 139 991) [2000] FCA 1358

MARK FOYS PTY LIMITED (ACN 052 917 183) v TVSN (PACIFIC) LIMITED (ACN 066 139 991)

N 635 OF 2000

HELY J
15 SEPTEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 635 OF 2000

BETWEEN:	MARK FOYS PTY LIMITED APPLICANT (ACN 052 917 183)
AND:	TVSN (PACIFIC) LIMITED RESPONDENT (ACN 066 139 991)
JUDGE:	HELY J
DATE OF ORDER:	15 SEPTEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave to appeal be dismissed with costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 635 OF 2000

BETWEEN:	MARK FOYS PTY LIMITED APPLICANT (ACN 052 917 183)
AND:	TVSN (PACIFIC) LIMITED RESPONDENT (ACN 066 139 991)
JUDGE:	HELY J
DATE:	15 SEPTEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Mark Foys instituted proceedings against TVSN which were heard by Whitlam J at first instance.  On 26 May 2000, his Honour dismissed the proceedings and ordered Mark Foys to pay the respondent’s costs.  An appeal from that decision has been lodged.  The appeal is listed for hearing on 26 October this year. 

2. On 15 August 2000 TVSN took out a motion returnable before Conti J, in which it sought security for the costs of the appeal, as well as further security for the costs of the proceedings at first instance.  The motion also sought, pursuant to Order 35 rule 6(2), a stay of the appeal pending the provision of the further security for the costs of the proceedings at first instance. 

3. In the proceedings before Whitlam J, security for costs in the sum of $100,000 was ordered by consent.  I was informed that yesterday the bill of costs relating to the proceedings before Whitlam J had been provisionally taxed at $157,000.  What is now sought is a payment of $57,000 for the provision of security, and a stay of the appeal until that occurs.

4. I do not have Conti J’s reasons for decision but I have been informed that his Honour refused to order further security for the proceedings at first instance, or to stay the appeal pending provision of that security on two bases: first, that Order 35 rule 6(2) does not apply to an appeal from a decision given at first instance, and second, that in any event, as a matter of discretion, his Honour did not consider it appropriate to order further security to be provided for the proceedings at first instance.  On these grounds, his Honour was not prepared to order security beyond that ordered by consent at first instance.  Leave to appeal is now sought from that decision. 

5. It seems to me that Conti J’s decision, insofar as it concerned Order 35 rule 6, was clearly correct.  For that reason I would refuse leave to appeal.  Further, the decision refusing to order the provision of further security was a decision involving the exercise of a discretion on a matter of practice and procedure.  No reason has been shown for interfering with that discretionary decision.

6. The application for leave to appeal is dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:            21 September 2000

Solicitor for the Applicant:	PricewaterhouseCoopers Legal
Solicitor for the Respondent:	Bruce & Stewart Commercial Practice Lawyers
Date of Hearing:	15 September 2000
Date of Judgment:	15 September 2000