Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd

Case [2019] SASC 124

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

NANOSECOND CORPORATION PTY LTD & ANOR v GLEN CARRON PTY LTD & ANOR

[2019] SASC 124

Judgment of The Honourable Justice Peek

19 July 2019

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS

PROCEDURE - COSTS - SECURITY FOR COSTS - POVERTY - LACK OF MEANS

PROCEDURE - COSTS - SECURITY FOR COSTS - OTHER MATTERS

Applications for security for costs.

The defendants used the plaintiffs’ services to provide haulage services to their customers. That arrangement ceased after various allegations were made by various of the defendants’ customers against Mr Wentworth.

The plaintiffs commenced proceedings against the defendants on 14 August 2017 alleging breach of contract, injurious falsehood, defamation, conspiracy by unlawful means and misleading and deceptive conduct. On 14 December 2018, following a voir dire and 11 day trial, Doyle J dismissed the plaintiffs’ claims and awarded costs to the defendants. On 17 April 2019, Doyle J made lump sum costs orders against the plaintiffs in the total amount of $289,000.

On 29 January 2019 and again on 21 February 2019, the plaintiffs attempted to file a purported Notice of Appeal. The Notice of Appeal was rejected each time on the basis that it constituted an abuse of process. On the third attempt, the plaintiffs’ Notice of Appeal was accepted for filing on 20 March 2019, 65 days out of time.

On 20 June 2019, the first defendant filed an interlocutory application seeking, inter alia, that the appellate proceeding be dismissed for want of prosecution. On 27 June 2019, Mr Wentworth delivered to the Registry three copies of a purported case book. The purported case book showed almost total non-compliance with rule 239 of the Supreme Court Civil Supplementary Rules 2014 (SCCSR). No copy was served on the defendants until immediately prior to the hearing before this Court on 28 June 2019.

On 28 June 2019, the first defendant’s interlocutory application was called on. The defendants foreshadowed that they would apply for security for costs. Mr Wentworth made numerous factual assertions from the Bar table. Orders were made permitting the plaintiffs to file further affidavit material and permitting the defendants to file and serve further applications they wished to make.

On 8 July 2019, the defendants filed their respective applications for security for costs. The first defendant sought security for costs in the amount of $35,000 and the second defendant sought security for costs in the amount of $17,400. The plaintiffs filed two further affidavits on 9 July 2019.

On 12 July 2019, submissions were heard on the defendants’ security for costs applications and Judgment was reserved.

Held, allowing the first and second defendants’ applications for security for costs:

1. The plaintiffs have very substantial debts and are impecunious. The plaintiffs cannot meet the outstanding costs orders and could not meet any costs order(s) made against them by the Full Court should their appeal be unsuccessful.

2. The prospects of success of the…

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Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd [2019] SASC 124
Case
[2019] SASC 124
Decision Date

CaseChat Overview and Summary

Nanosecond Corporation Pty Ltd and another, as appellants, appealed against the decision of Doyle J who had dismissed their claims against Glen Carron Pty Ltd and another, as respondents. The primary judge had dismissed the plaintiffs' claims in full and made orders as to costs. The appeal was dismissed and the plaintiffs were ordered to provide security for the respondents' costs of the appeal. The appeal raised issues as to the exercise of the Court’s discretion under rule 295(1)(g) of the Supreme Court Rules in relation to an order for security for costs. The Court held that the plaintiffs had no real prospect of being able to pay an order for costs if made against them, and that they had no assets of any value. The Court exercised its discretion to order the plaintiffs to provide security for the respondents’ costs of the appeal.

The Court held that the plaintiffs’ conduct during the trial, and their reliance on edited versions of the recordings, were significant factors in the exercise of the Court’s discretion. The Court held that the plaintiffs’ conduct had contributed to the length of the trial and had caused significant expense to the defendants. The Court held that the plaintiffs’ conduct demonstrated a lack of perception or insight on their part, and a blinkered and uncompromising attitude in their conduct and dealings with others. The Court held that the plaintiffs’ conduct was a significant factor in the exercise of the Court’s discretion to order security for costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

On 20 August 2018, the trial proper commenced and over eleven days his Honour heard evidence from some 19 witnesses (including Mr Wentworth). Judgment was reserved following final submissions on 31 October 2018. On 14 December 2018, the Judge delivered a long judgment of 104 pages in which his Honour carefully considered the whole of the evidence, relating it to all of the various asserted causes of action. At paragraph [39] his Honour referred to his previous voir dire ruling and, for reasons that become apparent, it is appropriate to reproduce the passage that then followed:[2][2] Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor (No 2) [2018] SASC 188.40. As explained below, Mr Wentworth had difficulty accepting and obeying this ruling. Throughout the trial he continued to attempt to deploy the recordings that I had ruled were unlawful or otherwise inadmissible. Mr Wentworth’s conviction that the recordings would prove his case, and his determination to deploy them in the manner he wished, added significantly to the length of the trial. 41. In addition to this, Mr Wentworth’s attitude and conduct in relation to the recordings he had made also provided me with some insight into his personality, and his reliability as a witness. Significantly in this respect, it became apparent during the course of the trial that Mr Wentworth was relying upon versions of the recordings that had been heavily (and in several respects, misleadingly) edited by him. I ultimately received into evidence two versions of each of the six recorded conversations that I ruled were admissible – the edited versions sought to be relied upon by the plaintiffs, and the unedited versions relied upon by the defendants. I have set out relevant extracts from each of these recordings later in these reasons. In so doing I have italicised the portions of the conversations that Mr Wentworth had edited out of the recordings in the versions he sought to rely upon.42. The plaintiffs relied upon the edited versions of the relevant recordings both on the voir dire and at trial. They did so without informing me that the recordings had been heavily edited. Indeed, the plaintiffs filed an affidavit of Mr Wentworth (which was relied upon during the voir dire) that contained ‘transcripts’ of the conversations without any indication (by way of ellipses or otherwise) that parts of the conversations had been edited out or deleted. I had listened to, and relied upon, the recordings for the purposes of the voir dire without appreciating that they had been edited. While I had assumed that the start and end of some of the conversations may not have been captured in the recordings, it did not occur to me that they had been edited in the manner in which it is now clear they had been. It was not until counsel for the defendants tendered the unedited versions of the conversations during cross-examination of Mr Wentworth that the nature and extent of the editing became clear. My understanding is that the unedited versions of the recordings were only disclosed to the defendants shortly prior to trial, and after repeated requests.43. As will be apparent from the italicised sections of the transcripts of the recordings set out later in my reasons, the editing was not confined to the removal of stand-alone passages that dealt with discrete or irrelevant topics. To the contrary, the editing included numerous instances of the removal of particular passages from relevant exchanges. In several cases parts of sentences had been removed. Importantly, several of the edits made to the recordings altered the meaning of parts of the conversations. I have referred to some examples of this nature later in my reasons.44. Further, the editing appears to have been undertaken in a manner designed to disguise what had occurred. In many cases where phrases or passages had been removed, the editing was undertaken in a manner that resulted in what remained appearing to run together in a way that made sense. As I have said, on my first listening to the conversations, I did not realise that there were phrases and passages that had been edited out of what could be heard on the recording.45. During cross-examination, Mr Wentworth admitted that he had undertaken the extensive editing that had occurred. Indeed, he acknowledged a careful and painstaking effort on his part in producing the edited recordings, and even suggested that this was a reason why he should not be forced to refer to the unedited versions of the recordings once their existence had been revealed by the defendants.46. Mr Wentworth gave various unsatisfactory explanations for the editing he had undertaken. At times he insisted that it was a matter for him which parts of conversations he wished to rely upon as helpful to his case, and that it was for the defendants to do whatever they wanted to with the balance of the conversations. Of course, this overlooked both the misleading nature of the edited recordings that he had sought to rely upon, and the fact that he never volunteered that those recordings had been edited. At times Mr Wentworth did not accept that his editing had affected the meaning conveyed by the relevant passage from the recording, when plainly it did. On other occasions, Mr Wentworth attempted to justify his editing on the basis that he had merely deleted words that the other person in the conversation had said, and that he considered were untruthful and hence irrelevant or unhelpful to my consideration of the issues in the case. This purported justification is not only an inaccurate description of the editing, but also overlooks the obvious considerations that it was for the Court (and not Mr Wentworth) to determine where the truth lies, and that in many instances the words spoken were relevant to the matters in issue regardless of whether or not they were true.47. In summary, I am satisfied that Mr Wentworth undertook a careful and detailed process of editing the recordings that he intended to rely upon in presenting the plaintiffs’ case. He did so in a manner intended to remove various passages that were harmful, or at least potentially harmful, to the plaintiffs’ case. In so doing, he intended to mislead the Court, and indeed to disguise the fact that the Court was being misled. I do not accept any of the purported justifications given by Mr Wentworth for his conduct, and am satisfied that he well knew what he was doing and the inappropriateness of it. I consider Mr Wentworth’s conduct in attempting to mislead the Court in this way reflects poorly upon him and his credibility.Mr Wentworth and his evidence48. As I have mentioned, Mr Wentworth is an intelligent and articulate man. In many respects he did a competent job of representing the plaintiffs’ interest in these proceedings.49. However, as the trial unfolded it became clear to me that there are aspects of Mr Wentworth’s personality which have not only contributed to the situation in which he finds himself, but which have also led me to conclude that I cannot safely rely upon his evidence. In some respects I have found his evidence to be deliberately untruthful. In other respects, the unreliability of his evidence appears to have arisen more from a lack of perception as to his own shortcomings, the position and views of others, and the impact of his conduct on others. In any event, and whatever the precise reason for its unreliability, I have reached the conclusion that it is generally not appropriate for me to rely upon Mr Wentworth’s evidence where it conflicts with the evidence of others. 50. By way of further explanation for this conclusion, Mr Wentworth’s position and evidence throughout the trial was that he was a highly competent heavy combination vehicle driver, and that any suggestion to the contrary was “total unadulterated nonsense”, a “complete fabrication”, and essentially a perpetuation of the malicious conspiracy by various people to falsely accuse him of incompetence and to withdraw work from him. He reacted poorly to any challenge by witnesses to his competence. He regularly became frustrated, exasperated and then angry when their evidence was critical of him. A significant proportion of his examination and cross-examination of witnesses involved shouting at them, or over the top of them. On many occasions he did so on a basis that did not accurately or fairly reflect their evidence or other evidence in the case, or was otherwise misconceived or inappropriate. On some occasions he resorted to inappropriately rebuking witnesses for giving evidence that was critical of him, or otherwise scoffing at, or mocking, such evidence. 51. Mr Wentworth routinely sought to challenge, or simply ignore, rulings that I made that he considered were getting in the way of him attempting to extract the truth from the various witnesses – including those that he called in the plaintiffs’ own case. He repeatedly asked me to bring the trial to an end on the basis of alleged perjury by various of the witnesses. He concluded his case by cataloguing what he alleged were over 150 instances of deliberately untruthful evidence by the various witnesses.52. In some respects, Mr Wentworth’s anger and attitude were a product of his emotional investment in the matters in issue. He appears to have genuinely regarded himself as a highly skilled driver, and to have believed that he was on the path to establishing a successful business as a driver. However, he now finds himself unemployed, financially ruined and with little by way of future prospects in the transport industry. In this respect, while remaining inappropriate and unhelpful, his anger and attitude were understandable and did not necessarily affect the reliability of his evidence. 53. However, as the trial unfolded, and the detail of the evidence emerged, it became clear to me that his anger and attitude also reflected a lack of perception or insight on his part. He presented as someone who was so utterly convinced of his own skill, and the correctness and virtue of his conduct and position more generally, that he simply could not or would not countenance any criticism made of him or his performance.54. Despite what ultimately turned out to be a very significant, almost overwhelming, body of evidence to the effect that he had many shortcomings as a driver, and had been the subject of numerous complaints, Mr Wentworth refused to accept any shortcomings on his part. He rejected out of hand virtually the entirety of the evidence against him as complete and unadulterated fabricated nonsense.55. It is true that some of these complaints and shortcomings were not communicated to him at the time. Rather, the defendants generally attempted to work around the issues that arose with Mr Wentworth’s performance (for example, by allocating him different work), rather than confront him with them. In part this was as a result of difficulties that had been encountered by them with earlier attempts to address criticisms with him. I thus accept that Mr Wentworth was not aware of the extent of the discontent with his performance as a driver prior to the trial in these proceedings. But by the end of the trial the position had moved well beyond an understandable reaction by Mr Wentworth to being confronted with criticism by others. It became clear that Mr Wentworth has very limited insight into his own shortcomings, the position and views of others, and the impact of his conduct on others. 56. The defendants contended that I should find that Mr Wentworth is delusional. Insofar as this was intended to suggest that Mr Wentworth’s evidence, and the plaintiffs’ case more generally, were characterised by idiosyncratic beliefs or impressions that are contradicted by reality or rational argument, then there is force in the defendants’ submission. Certainly I have concluded that Mr Wentworth’s evidence, and case more generally, was in many respects contrary to reality and unsupported by rational argument. I have identified numerous illustrations of this throughout the course of these reasons.57. However, there is no basis in the evidence for me to find that Mr Wentworth was delusional in the sense that that term is often used, namely as symptomatic of some form of mental disorder. For that reason, I prefer to describe Mr Wentworth as having a lack of perception or insight, and as affected by a blinkered and uncompromising attitude in his conduct and dealings with others.58. While the above would have been a sufficient basis to treat Mr Wentworth’s evidence as generally unreliable, I have further concerns. While Mr Wentworth generally appeared to be endeavouring to tell the truth, albeit through the prism of his blinkered and uncompromising view of things, I am satisfied that there were instances where he did not do so. His evidence in relation to the editing of the recorded conversations is the most obvious and significant example. However, I have identified some further examples in the course of these reasons.59. I conclude this section of my reasons by observing that a number of the plaintiffs’ submissions in these proceedings were based upon factual assertions that were not the subject of evidence. I endeavoured on various occasions to explain to Mr Wentworth the importance of ensuring that he give evidence about all of the factual matters upon which he wished to rely, and that his questions of (and assertions to) other witnesses were not evidence in the trial. However, despite appearing to understand these explanations, and saying that he understood them, there remain a number of apparent gaps in the plaintiffs’ evidence. That said, to the extent that the plaintiffs’ ‘position’ in relation to various factual matters has been apparent from the questions and submissions advanced by Mr Wentworth, I have endeavoured to take account of this in my consideration of the evidence and in making findings of fact.

Decision

Reasons for decision

PEEK J
On 14 August 2017 the plaintiffs commenced proceedings by Summons and a Statement of Claim which was extensively amended on 6 November 2017 and again on 23 April 2018. In essence, the plaintiffs claimed that they had a contract with the defendants who were thereby required to provide work to the plaintiffs for as long as the plaintiffs continued to carry on business in South Australia; and that the defendants were in breach by ceasing to offer work in late April 2017. The plaintiffs also brought claims in injurious falsehood; defamation; conspiracy by unlawful means; and misleading and deceptive conduct.The trial, Judgment and costs orders Following numerous directions hearings, the matter went to trial before Doyle J. On 10 August 2018, his Honour conducted a voir dire hearing concerning the admissibility of various covert recordings made by Wentworth upon which the plaintiffs sought to rely at trial and reserved judgment. On 16 August 2018, his Honour delivered judgment, coming to the following conclusions and making the following rulings:[1][1] Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor [2018] SASC 116.136. For the reasons set out above, I am satisfied that each of recordings #1 - #3 and #13 - #20 were made in contravention of the relevant legislation and may not be used in these proceedings. In the case of recordings #4 - #12, I am not satisfied that they were made in contravention of the relevant legislation, and I make an order permitting their use in these proceedings. Of these recordings, I am satisfied that recordings #4, #6, #7, #9, #10 and #11 are relevant and admissible. But I am not satisfied that recordings #5, #8 and #12 are admissible and so I exclude those recordings.137. It follows from these conclusions that Mr Wentworth will not be entitled to give oral evidence of the conversations in respect of which the recordings have been excluded as hearsay (that is, the third party conversations or meetings that are featured in recordings #5, #8, #12 - #15 and #17 - #20). However, none of the above precludes Mr Wentworth from giving oral evidence about the balance of the conversations, being his conversations with representatives of the defendants (other than the conversation featured in #16, which I have found is irrelevant).138. I thus make the following rulings:1. Recordings #1 - #3 and #12 - #20 were made unlawfully, and I do not permit their use in these proceedings.2. I give the plaintiffs permission to use recordings #4 - #12 for the purposes of these proceedings.3. Of the recordings in ruling 2:3.1 Recordings #4, #6, #7, #9, #10 and #11 are relevant and admissible; and3.2 I exclude recordings #5, #8 and #12 on the basis they are inadmissible hearsay. On 20 August 2018, the trial proper commenced and over eleven days his Honour heard evidence from some 19 witnesses (including Mr Wentworth). Judgment was reserved following final submissions on 31 October 2018. On 14 December 2018, the Judge delivered a long judgment of 104 pages in which his Honour carefully considered the whole of the evidence, relating it to all of the various asserted causes of action. At paragraph [39] his Honour referred to his previous voir dire ruling and, for reasons that become apparent, it is appropriate to reproduce the passage that then followed:[2][2] Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor (No 2) [2018] SASC 188.40. As explained below, Mr Wentworth had difficulty accepting and obeying this ruling. Throughout the trial he continued to attempt to deploy the recordings that I had ruled were unlawful or otherwise inadmissible. Mr Wentworth’s conviction that the recordings would prove his case, and his determination to deploy them in the manner he wished, added significantly to the length of the trial. 41. In addition to this, Mr Wentworth’s attitude and conduct in relation to the recordings he had made also provided me with some insight into his personality, and his reliability as a witness. Significantly in this respect, it became apparent during the course of the trial that Mr Wentworth was relying upon versions of the recordings that had been heavily (and in several respects, misleadingly) edited by him. I ultimately received into evidence two versions of each of the six recorded conversations that I ruled were admissible – the edited versions sought to be relied upon by the plaintiffs, and the unedited versions relied upon by the defendants. I have set out relevant extracts from each of these recordings later in these reasons. In so doing I have italicised the portions of the conversations that Mr Wentworth had edited out of the recordings in the versions he sought to rely upon.42. The plaintiffs relied upon the edited versions of the relevant recordings both on the voir dire and at trial. They did so without informing me that the recordings had been heavily edited. Indeed, the plaintiffs filed an affidavit of Mr Wentworth (which was relied upon during the voir dire) that contained ‘transcripts’ of the conversations without any indication (by way of ellipses or otherwise) that parts of the conversations had been edited out or deleted. I had listened to, and relied upon, the recordings for the purposes of the voir dire without appreciating that they had been edited. While I had assumed that the start and end of some of the conversations may not have been captured in the recordings, it did not occur to me that they had been edited in the manner in which it is now clear they had been. It was not until counsel for the defendants tendered the unedited versions of the conversations during cross-examination of Mr Wentworth that the nature and extent of the editing became clear. My understanding is that the unedited versions of the recordings were only disclosed to the defendants shortly prior to trial, and after repeated requests.43. As will be apparent from the italicised sections of the transcripts of the recordings set out later in my reasons, the editing was not confined to the removal of stand-alone passages that dealt with discrete or irrelevant topics. To the contrary, the editing included numerous instances of the removal of particular passages from relevant exchanges. In several cases parts of sentences had been removed. Importantly, several of the edits made to the recordings altered the meaning of parts of the conversations. I have referred to some examples of this nature later in my reasons.44. Further, the editing appears to have been undertaken in a manner designed to disguise what had occurred. In many cases where phrases or passages had been removed, the editing was undertaken in a manner that resulted in what remained appearing to run together in a way that made sense. As I have said, on my first listening to the conversations, I did not realise that there were phrases and passages that had been edited out of what could be heard on the recording.45. During cross-examination, Mr Wentworth admitted that he had undertaken the extensive editing that had occurred. Indeed, he acknowledged a careful and painstaking effort on his part in producing the edited recordings, and even suggested that this was a reason why he should not be forced to refer to the unedited versions of the recordings once their existence had been revealed by the defendants.46. Mr Wentworth gave various unsatisfactory explanations for the editing he had undertaken. At times he insisted that it was a matter for him which parts of conversations he wished to rely upon as helpful to his case, and that it was for the defendants to do whatever they wanted to with the balance of the conversations. Of course, this overlooked both the misleading nature of the edited recordings that he had sought to rely upon, and the fact that he never volunteered that those recordings had been edited. At times Mr Wentworth did not accept that his editing had affected the meaning conveyed by the relevant passage from the recording, when plainly it did. On other occasions, Mr Wentworth attempted to justify his editing on the basis that he had merely deleted words that the other person in the conversation had said, and that he considered were untruthful and hence irrelevant or unhelpful to my consideration of the issues in the case. This purported justification is not only an inaccurate description of the editing, but also overlooks the obvious considerations that it was for the Court (and not Mr Wentworth) to determine where the truth lies, and that in many instances the words spoken were relevant to the matters in issue regardless of whether or not they were true.47. In summary, I am satisfied that Mr Wentworth undertook a careful and detailed process of editing the recordings that he intended to rely upon in presenting the plaintiffs’ case. He did so in a manner intended to remove various passages that were harmful, or at least potentially harmful, to the plaintiffs’ case. In so doing, he intended to mislead the Court, and indeed to disguise the fact that the Court was being misled. I do not accept any of the purported justifications given by Mr Wentworth for his conduct, and am satisfied that he well knew what he was doing and the inappropriateness of it. I consider Mr Wentworth’s conduct in attempting to mislead the Court in this way reflects poorly upon him and his credibility.Mr Wentworth and his evidence48. As I have mentioned, Mr Wentworth is an intelligent and articulate man. In many respects he did a competent job of representing the plaintiffs’ interest in these proceedings.49. However, as the trial unfolded it became clear to me that there are aspects of Mr Wentworth’s personality which have not only contributed to the situation in which he finds himself, but which have also led me to conclude that I cannot safely rely upon his evidence. In some respects I have found his evidence to be deliberately untruthful. In other respects, the unreliability of his evidence appears to have arisen more from a lack of perception as to his own shortcomings, the position and views of others, and the impact of his conduct on others. In any event, and whatever the precise reason for its unreliability, I have reached the conclusion that it is generally not appropriate for me to rely upon Mr Wentworth’s evidence where it conflicts with the evidence of others. 50. By way of further explanation for this conclusion, Mr Wentworth’s position and evidence throughout the trial was that he was a highly competent heavy combination vehicle driver, and that any suggestion to the contrary was “total unadulterated nonsense”, a “complete fabrication”, and essentially a perpetuation of the malicious conspiracy by various people to falsely accuse him of incompetence and to withdraw work from him. He reacted poorly to any challenge by witnesses to his competence. He regularly became frustrated, exasperated and then angry when their evidence was critical of him. A significant proportion of his examination and cross-examination of witnesses involved shouting at them, or over the top of them. On many occasions he did so on a basis that did not accurately or fairly reflect their evidence or other evidence in the case, or was otherwise misconceived or inappropriate. On some occasions he resorted to inappropriately rebuking witnesses for giving evidence that was critical of him, or otherwise scoffing at, or mocking, such evidence. 51. Mr Wentworth routinely sought to challenge, or simply ignore, rulings that I made that he considered were getting in the way of him attempting to extract the truth from the various witnesses – including those that he called in the plaintiffs’ own case. He repeatedly asked me to bring the trial to an end on the basis of alleged perjury by various of the witnesses. He concluded his case by cataloguing what he alleged were over 150 instances of deliberately untruthful evidence by the various witnesses.52. In some respects, Mr Wentworth’s anger and attitude were a product of his emotional investment in the matters in issue. He appears to have genuinely regarded himself as a highly skilled driver, and to have believed that he was on the path to establishing a successful business as a driver. However, he now finds himself unemployed, financially ruined and with little by way of future prospects in the transport industry. In this respect, while remaining inappropriate and unhelpful, his anger and attitude were understandable and did not necessarily affect the reliability of his evidence. 53. However, as the trial unfolded, and the detail of the evidence emerged, it became clear to me that his anger and attitude also reflected a lack of perception or insight on his part. He presented as someone who was so utterly convinced of his own skill, and the correctness and virtue of his conduct and position more generally, that he simply could not or would not countenance any criticism made of him or his performance.54. Despite what ultimately turned out to be a very significant, almost overwhelming, body of evidence to the effect that he had many shortcomings as a driver, and had been the subject of numerous complaints, Mr Wentworth refused to accept any shortcomings on his part. He rejected out of hand virtually the entirety of the evidence against him as complete and unadulterated fabricated nonsense.55. It is true that some of these complaints and shortcomings were not communicated to him at the time. Rather, the defendants generally attempted to work around the issues that arose with Mr Wentworth’s performance (for example, by allocating him different work), rather than confront him with them. In part this was as a result of difficulties that had been encountered by them with earlier attempts to address criticisms with him. I thus accept that Mr Wentworth was not aware of the extent of the discontent with his performance as a driver prior to the trial in these proceedings. But by the end of the trial the position had moved well beyond an understandable reaction by Mr Wentworth to being confronted with criticism by others. It became clear that Mr Wentworth has very limited insight into his own shortcomings, the position and views of others, and the impact of his conduct on others. 56. The defendants contended that I should find that Mr Wentworth is delusional. Insofar as this was intended to suggest that Mr Wentworth’s evidence, and the plaintiffs’ case more generally, were characterised by idiosyncratic beliefs or impressions that are contradicted by reality or rational argument, then there is force in the defendants’ submission. Certainly I have concluded that Mr Wentworth’s evidence, and case more generally, was in many respects contrary to reality and unsupported by rational argument. I have identified numerous illustrations of this throughout the course of these reasons.57. However, there is no basis in the evidence for me to find that Mr Wentworth was delusional in the sense that that term is often used, namely as symptomatic of some form of mental disorder. For that reason, I prefer to describe Mr Wentworth as having a lack of perception or insight, and as affected by a blinkered and uncompromising attitude in his conduct and dealings with others.58. While the above would have been a sufficient basis to treat Mr Wentworth’s evidence as generally unreliable, I have further concerns. While Mr Wentworth generally appeared to be endeavouring to tell the truth, albeit through the prism of his blinkered and uncompromising view of things, I am satisfied that there were instances where he did not do so. His evidence in relation to the editing of the recorded conversations is the most obvious and significant example. However, I have identified some further examples in the course of these reasons.59. I conclude this section of my reasons by observing that a number of the plaintiffs’ submissions in these proceedings were based upon factual assertions that were not the subject of evidence. I endeavoured on various occasions to explain to Mr Wentworth the importance of ensuring that he give evidence about all of the factual matters upon which he wished to rely, and that his questions of (and assertions to) other witnesses were not evidence in the trial. However, despite appearing to understand these explanations, and saying that he understood them, there remain a number of apparent gaps in the plaintiffs’ evidence. That said, to the extent that the plaintiffs’ ‘position’ in relation to various factual matters has been apparent from the questions and submissions advanced by Mr Wentworth, I have endeavoured to take account of this in my consideration of the evidence and in making findings of fact.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

On 12 July 2019, I heard submissions on the defendants’ applications for security for costs and reserved judgment. Consideration The defendants’ applications for security for costs are brought pursuant to rule 295(1)(g) of the SCR which provides:(1) The Court may exercise any of the following powers in relation to an appeal or an application for permission to appeal—…(g) the Court may order that security be given for the costs of an appeal[.] Under previous versions of rule 295(1)(g), a party seeking an order for security for costs had to meet a threshold requirement of demonstrating that “special circumstances” existed before the Court’s discretion was engaged.[8] That threshold requirement no longer exists and rule 295(1)(g) now simply requires the Court to exercise the discretion judicially having regard to established principles. I turn to a consideration of the relevant factors here.[8] See Viscariello v Livesey & Anor [2014] SASCFC 40, [8]-[11]. A demonstrated risk of impecuniosity The first of the factors to be considered here is the financial means of the plaintiffs. On a number of occasions, Mr Wentworth has vehemently asserted that both plaintiffs are impecunious, including the following statements:-In the Statement of Claim dated 14 August 2017, the plaintiffs pleaded that Mr Wentworth “has no prospect whatsoever of any other work or income through employment”.-In an affidavit filed on 14 March 2018, Mr Wentworth deposed to the fact that “[t]he Second Plaintiff has no assets”; that “[t]he First Plaintiff has no remaining assets other than a six year old car which is worth many thousands of dollars less than it’s [sic] current payout figure”; and that “[f]or many days of any given month the Second Plaintiff has no money whatsoever for any food – fuel etc”.-In the Third Statement of Claim filed on 23 April 2018, the plaintiffs claimed “consequential loss and damage which includes the destruction of the credit history and credit worthiness of Nanosecond and Wentworth of $817,221.15 … from Garden Grove”; and that the plaintiffs “now have unpaid defaults recorded on their credit files and are now unable to obtain loans or advances for the smallest amounts”.-There were a number of exhibits tendered during the trial before Doyle J which demonstrated that (1) the plaintiffs have monthly financial commitments between roughly $30,000 to $40,000 (Exhibit P2); (2) that as at 2 May 2018, Mr Wentworth’s Commonwealth Bank account held an available balance of $1.82 (Exhibit P9); and as at 30 June 2018, the plaintiffs owed a debt to a third party, one Mr Fischer, in the sum of $32,568.73 (Exhibit P11).-In his Honour’s judgment delivered on 14 December 2018, Doyle J observed that Mr Wentworth “finds himself unemployed, financially ruined and with little by way of future prospects in the transport industry”.[9]-On 14 March 2019, the solicitor acting for the first defendant filed an affidavit which exhibited an email from Mr Wentworth to Griffins Lawyers dated 29 June 2018, wherein Mr Wentworth stated that he had $1.82 in his bank account as at that date.-On 20 March 2019, Mr Wentworth filed an affidavit which deposed to the fact that “[t]he financial situation of the Appellants is past critical”.-On 16 April 2019, Mr Wentworth filed an affidavit deposing to the fact that he was “[o]verwhelmed with debt” and “with squalor and deprivation”.-In his Honour’s ruling on 17 April 2019, Doyle J observed that “[t]he plaintiffs do not challenge the suggestion that they are impecunious” and that, to the contrary, Mr Wentworth had filed affidavit evidence “emphasising the lack of resources available to the plaintiffs”.-At the hearing before me on 28 June 2019, Mr Wentworth stated that, “in regard to costs; there is no money anyway”; that there was “no likelihood whatsoever” of the plaintiffs being able to pay an order for costs if such an order were made against them by the Full Court; that “there’s no money for anything”; that the “$150 to complete the copying and the binding for this appeal document, this appeal book yesterday, took … the last bit [of] money I had, now there’s no money for food”; and that the plaintiffs have “well over a million dollars outstanding”.[9] Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor (No 2) [2018] SASC 188, [52].