McWilliam v Penthouse Publications - [1999] NSWCA 2

CITATION: McWilliam v Penthouse Publications [1999] NSWCA 2

FILE NUMBER(S): CA 40506/98

HEARING DATE(S): 12/10/98

JUDGMENT DATE:
21 January 1999

PARTIES :

Anthony Charles Badham Jackson (1st claimant/2nd respondent)
Ernest Ormond Butler Thomas & ors trading as Norton Smith (2nd claimants/3rd respondents)
Bruce Scott McWilliam (1st opponent/appellant)
Peter Bruce McWilliam (2nd opponent/appellant)

JUDGMENT OF: Registrar Jupp

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 13527/88

LOWER COURT JUDICIAL OFFICER: Maconachie AJ

COUNSEL: claimants - Ms Oakley
opponents - Mr Graham and Mr Hodgekiss

SOLICITORS: claimants - Minter Ellison, Lawyers
opponents - no solicitors instructed

CATCHWORDS: security for costs

DECISION: Motion in so far as it seeks security for costs dismissed; 1/3 of the costs of the motion to be claimants' costs of the appeal, 2/3 of the costs of the motion to be appellants' costs of the appeal

7
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40506/98
REGISTRAR JUPP
Thursday 21 January 1999

BRUCE SCOTT McWILLIAM & ANOR v PENTHOUSE PUBLICATIONS LIMITED (LONDON, UNITED KINGDOM) & ORS
JUDGMENT (on application for security for costs)

1. REGISTRAR: On 14 August 1998 the 2nd and 3rd respondents, Mr Jackson and Norton Smith, Solicitors, filed a motion which sought, firstly, to strike out the appeal in so far as it had been brought by Bruce McWilliam (senior) and secondly, for security for costs of the appeal. That motion was adjourned several times by consent and eventually heard on 12 October 1998.
2. The appeal was originally filed on 14 July 1998 by Monte Gildea, Solicitor. The Notice of Appeal nominated 3 appellants being Bruce McWilliam Snr, Bruce Scott McWilliam and Peter Bruce McWilliam. There were 6 respondents.
3. On 4 August 1998 Monte Gildea filed a notice of ceasing to act for the appellants.
4. During the hearing of the motion I ordered that the appeal, in so far as it had been brought by Bruce McWilliam (Senior) was to be struck-out. I made this order on the basis that Mr McWilliam (senior) had died prior to the appeal being filed. (See Marshall v DG Sundin & Co Pty Ltd (1989) 16 NSWLR 463 and Darrington v Caldbeck (1990) 20 NSWLR 212). I noted that the order was not to prejudice any application that the legal personal representative of the estate may make to be added as a party to the appeal, and I also directed that the widow of Mr McWilliam (senior) be advised of the order.
5. At the hearing of the motion, originally Mr Graham sought only to appear on behalf of Bruce Scott McWilliam. Ms Oakley, who appeared for the claimants opposed this and I agreed that there would be difficulties if the remaining appellants were not jointly represented. A Notice of Address for Service of the two remaining appellants was eventually filed in Court. This document, signed by Bruce Scott McWilliam on his own behalf and as attorney for Peter Bruce McWilliam, nominated Flat 2, 52 Mona Road, Darling Point as…

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 McWilliam v Penthouse Publications

Details

AGLC: McWilliam v Penthouse Publications [1999] NSWCA 2
Case: [1999] NSWCA 2
Decision Date: 21 January 1999

CaseChat Overview and Summary

In *McWilliam v Penthouse Publications*, the applicant sought security for costs against the respondent. The dispute concerned an application for security for costs, with the Registrar ultimately determining the matter.

The central legal issue before the Registrar was whether the respondent, who was seeking security for costs, had established a sufficient case to warrant an order for security. This involved an assessment of the respondent's financial position and the likelihood of the applicant being able to meet any costs order that might be made against them.

Registrar Jupp dismissed the motion for security for costs. The Registrar's reasoning, though not detailed in the provided text, led to the conclusion that the threshold for ordering security had not been met. The costs of the motion were allocated such that one-third were to be the claimants' costs of the appeal, and two-thirds were to be the appellants' costs of the appeal.

Orders

Orders of the court

Motion in so far as it seeks security for costs dismissed; 1/3 of the costs of the motion to be claimants' costs of the appeal, 2/3 of the costs of the motion to be appellants' costs of the appeal

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	McWilliam v Penthouse Publications [1999] NSWCA 2
FILE NUMBER(S):	CA 40506/98
HEARING DATE(S):	12/10/98
JUDGMENT DATE:	21 January 1999
PARTIES :	Anthony Charles Badham Jackson (1st claimant/2nd respondent) Ernest Ormond Butler Thomas & ors trading as Norton Smith (2nd claimants/3rd respondents) Bruce Scott McWilliam (1st opponent/appellant) Peter Bruce McWilliam (2nd opponent/appellant)
JUDGMENT OF:	Registrar Jupp

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	13527/88
LOWER COURT JUDICIAL OFFICER:	Maconachie AJ

COUNSEL:	claimants - Ms Oakley opponents - Mr Graham and Mr Hodgekiss
SOLICITORS:	claimants - Minter Ellison, Lawyers opponents - no solicitors instructed
CATCHWORDS:	security for costs
DECISION:	Motion in so far as it seeks security for costs dismissed; 1/3 of the costs of the motion to be claimants' costs of the appeal, 2/3 of the costs of the motion to be appellants' costs of the appeal