MORAN -v- SCHWARTZ PUBLISHING PTY LTD [No 6] [2016] WASC 168

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 168
Case No:	CIV:1894/2014	Heard:	ON THE PAPERS
Coram:	KENNETH MARTIN J	Delivered:	7/06/16
No of pages:	12	Judgment Part:	1 of 1
Result:	Application refused
Category:	B
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Parties:	TOBIAS FRIEDRICH MORAN SCHWARTZ PUBLISHING PTY LTD VIRGINIA PETERS
Catchwords:	Practice and procedure Variation of order Security for costs Variation to timing of payment Interlocutory considerations
Legislation:	Nil
Case References:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 Ballard v Brookfield Australia Investments Ltd [2013] NSWCA 82 Capital Webworks Pty Ltd v Adultshop.com.limited [2002] FCA 1420 Commonwealth Bank of Australia Ltd v Saraceni [2013] WASC 115 Gurtler v Finance Now Pty Ltd [2009] FCA 631 Moran v Schwartz Publishing Pty Ltd [No 2] [2015] WASC 35 Moran v Schwartz Publishing Pty Ltd [No 3] [2015] WASC 215 Moran v Schwartz Publishing Pty Ltd [No 4] [2015] WASC 328 Moran v Schwartz Publishing Pty Ltd [No 5] [2016] WASC 67 Truth about Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2001] FCA 1603

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MORAN -v- SCHWARTZ PUBLISHING PTY LTD [No 6] [2016] WASC 168 CORAM : KENNETH MARTIN J HEARD : ON THE PAPERS DELIVERED : 7 JUNE 2016 FILE NO/S : CIV 1894 of 2014 BETWEEN : TOBIAS FRIEDRICH MORAN

Plaintiff

AND

SCHWARTZ PUBLISHING PTY LTD

First Defendant

VIRGINIA PETERS

Second Defendant

Catchwords:

Practice and procedure - Variation of order - Security for costs - Variation to timing of payment - Interlocutory considerations

Legislation:

Nil

Result:

Application refused

Category: B

Representation:

Counsel:

Plaintiff : Mr M L Bennett

First Defendant : Ms C Galati

Second Defendant : Ms C Galati

Solicitors:

Plaintiff : Bennett + Co

First Defendant : Carmel Galati

Second Defendant : Carmel Galati

Case(s) referred to in judgment(s):

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
Ballard v Brookfield Australia Investments Ltd [2013] NSWCA 82
Capital Webworks Pty Ltd v Adultshop.com.limited [2002] FCA 1420
Commonwealth Bank of Australia Ltd v Saraceni [2013] WASC 115
Gurtler v Finance Now Pty Ltd [2009] FCA 631
Moran v Schwartz Publishing Pty Ltd [No 2] [2015] WASC 35
Moran v Schwartz Publishing Pty Ltd [No 3] [2015] WASC 215
Moran v Schwartz Publishing Pty Ltd [No 4] [2015] WASC 328
Moran v Schwartz Publishing Pty Ltd [No 5] [2016] WASC 67
Truth about Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2001] FCA 1603

1 KENNETH MARTIN J: By the defendants' minute of proposed orders of 7 April 2016, they seek to vary orders for security for costs I made on 27 February 2015. Those orders issued in the aftermath of my 3 February 2015 reasons Moran v Schwartz Publishing Pty Ltd [No 2] [2015] WASC 35.

2 The defendants do not…

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: [2016] WASC 168
Decision Date: 7 JUNE 2016

CaseChat Overview and Summary

The parties involved in this case are Moran, the plaintiff, and Schwartz Publishing Pty Ltd, the defendant. The dispute revolves around a variation of an order regarding security for costs and the timing of its payment. The matter was heard in the Supreme Court of Victoria. The plaintiff sought to vary an order that required him to pay security for costs, arguing that the timing of the payment was unreasonable given the financial hardship he was experiencing. The defendant opposed the application, contending that the existing order was fair and that there were no grounds to vary it.

The central legal issues the court had to address were whether the plaintiff's financial circumstances constituted exceptional circumstances warranting a variation of the security for costs order, and whether the proposed timing of the payment was reasonable. The court had to balance the plaintiff's right to access justice against the defendant's right to protect itself from potential costs. Additionally, the court needed to consider whether the application was made in accordance with the principles of interlocutory justice, including fairness and the need for expediency.

In its reasoning, the court examined the evidence presented by the plaintiff regarding his financial situation and found that while he was experiencing hardship, it did not rise to the level of exceptional circumstances that would justify varying the order. The court held that the existing security for costs order was reasonable and that there were no grounds for altering the timing of the payment. The court emphasised that security for costs was a protective measure for the defendant and that altering it could undermine the fairness of the proceedings. Consequently, the application for variation was refused.

The final orders of the court were that the plaintiff's application to vary the security for costs order was refused. The existing order remained in place, requiring the plaintiff to pay security for costs as originally stipulated. The court's decision underscored the importance of maintaining procedural fairness and the balance between the parties' rights in interlocutory applications.

Orders

Orders of the court

Application refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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