1. To the extent necessary, grant leave nunc pro tunc to the Appellant pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to institute appeal proceedings.
2. Pursuant to UCPR r 51.50(1), the Appellant is to provide security for the respondent's costs by paying into Court the sum of $25,000 or by way of charge over real property or in such other form as may be agreed between the parties which, if not provided earlier by way of charge, is to be paid in two tranches:
(a) as to $15,000 by 15 September 2020;
(b) as to the balance ($10,000) by the date set by the Registrar for the filing of the Appellant’s submissions.
3. The proceedings are listed on 21 September 2020 for directions before the Registrar, or, in the event that the first tranche of security has not been provided, an order for the dismissal of the proceedings pursuant to UCPR r 51.50(2A) may be sought.
4. The Appellant to pay the Respondent's costs of the Notice of Motion for security for costs.
5. No order as to costs of the Appellant’s Notice of Motion.
Catchwords:
APPEAL – leave to proceed under Felons (Civil Proceedings) Act 1981 (NSW) – criteria for grant of leave – meaning of “there is prima facie ground for the proceedings”.
APPEAL – security for costs – where security for costs sought against an individual appellant – where appellant was defendant at first instance – where appellant currently incarcerated – whether special circumstances existed warranting the grant of security for costs – where, irrespective of the outcome of the appeal, the appellant would still be liable to the respondent in a significant sum.
[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
AGLC
Mr D v Ms P [2020] NSWCA 174
Case
[2020] NSWCA 174
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by Mr D against Ms P. Mr D sought leave to proceed with his appeal under the *Felons (Civil Proceedings) Act 1981* (NSW) and also sought security for Ms P's costs of the appeal. Mr D was incarcerated and had been the defendant at first instance.
The Court was required to determine two primary legal issues. First, whether Mr D had established a prima facie ground for his appeal, thereby satisfying the criteria for granting leave under the *Felons (Civil Proceedings) Act 1981* (NSW). Second, whether special circumstances existed to warrant ordering security for Ms P's costs of the appeal, given Mr D's incarceration and the fact that he would remain liable to Ms P for a significant sum regardless of the appeal's outcome.
Bell P granted leave to Mr D to institute appeal proceedings nunc pro tunc, finding that he had established a prima facie ground for the appeal. However, the Court also ordered Mr D to provide security for Ms P's costs in the sum of $25,000, payable in two tranches, or by way of an agreed alternative. This decision was made on the basis that Mr D's incarceration and the existing liability constituted special circumstances justifying the security order. The proceedings were listed for directions, with a potential dismissal order if the first tranche of security was not provided. Mr D was ordered to pay Ms P's costs of the motion for security for costs.
Orders
Orders of the court
1. To the extent necessary, grant leave nunc pro tunc to the Appellant pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) to institute appeal proceedings.
2. Pursuant to UCPR r 51.50(1), the Appellant is to provide security for the respondent's costs by paying into Court the sum of $25,000 or by way of charge over real property or in such other form as may be agreed between the parties which, if not provided earlier by way of charge, is to be paid in two tranches:
(a) as to $15,000 by 15 September 2020;
(b) as to the balance ($10,000) by the date set by the Registrar for the filing of the Appellant’s submissions.
3. The proceedings are listed on 21 September 2020 for directions before the Registrar, or, in the event that the first tranche of security has not been provided, an order for the dismissal of the proceedings pursuant to UCPR r 51.50(2A) may be sought.
4. The Appellant to pay the Respondent's costs of the Notice of Motion for security for costs.
5. No order as to costs of the Appellant’s Notice of Motion.