Monte v Gianni Versace SpA

[2003] FCA 956

FEDERAL COURT OF AUSTRALIA

Monte v Gianni Versace SpA [2003] FCA 956

FRANK MONTE v GIANNI VERSACE SpA, SANTO VERSACE and DONATELLA VERSACE
N 745 OF 2003

WHITLAM J
10 SEPTEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 745 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

FRANK MONTE
APPELLANT

AND:

GIANNI VERSACE SpA
FIRST RESPONDENT

SANTO VERSACE
SECOND RESPONDENT

DONATELLA VERSACE
THIRD RESPONDENT

JUDGE:

WHITLAM J

DATE OF ORDER:

10 SEPTEMBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appellant provide by 4 pm on 30 September 2003 security in a form acceptable to the Registrar for costs of the appeal in the sum of $65,000.

2.        In the event that such security is not provided, the appeal be stayed.

3.        The appellant is to pay the respondents’ costs of their motion, notice of which was filed on 12 August 2003.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 745 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

FRANK MONTE
APPELLANT

AND:

GIANNI VERSACE SpA
FIRST RESPONDENT

SANTO VERSACE
SECOND RESPONDENT

DONATELLA VERSACE
THIRD RESPONDENT

JUDGE:	WHITLAM J
DATE:	10 SEPTEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for security for costs in an appeal instituted on 19 June 2003.  The notice of appeal purports to appeal from orders made by Tamberlin J on 8 March 2002 and on 29 May 2003. 

2. No substantive orders were, in fact, made on 8 March 2002.  On that day Tamberlin J published reasons for judgment dealing with the questions of liability and relief other than damages: see Gianni Versace SpA v Monte (2002) 119 FCR 349. On 29 April 2002 his Honour made orders to give effect to those reasons and also made a costs order in favour of the respondents, entitling them to have such costs taxed and paid forthwith. Those orders were entered on 1 May 2002. An application to ‘reconsider’ the requirement that the costs be paid forthwith was made on 19 June 2002. That application was not granted by Tamberlin J, who also refused leave to appeal from the costs order.

3. On 29 May 2003 the respondents were given leave by Tamberlin J to discontinue that part of the proceeding in the Court below which related to the quantification and payment of damages.  A notice of discontinuance was filed that day.  The respondents have not objected to the competency of the appeal.  It seems that the parties take the view that such discontinuance turns the orders made on 29 April 2002 into ‘final’ orders and starts the time running to appeal against them.

4. The appeal has been fixed for hearing on 3 November 2003 for two days.  The evidence before me establishes quite clearly that the appellant is impecunious in the sense…