Nine Network Australia Pty Ltd v Tabbaa

Nine Network Australia Pty Ltd (the appellant) sought security for costs against Mr Tabbaa (the respondent) in defamation proceedings before the Court of Appeal of New South Wales. The respondent had been awarded damages in the primary proceedings, and the appellant was appealing this decision. The appellant argued that special circumstances existed warranting security for costs due to the respondent's impecuniosity and the perceived lack of merit in the appeal grounds.

The central legal issue before the Court of Appeal was whether there were special circumstances justifying an order for security for costs against the respondent. This required the court to consider the grounds of appeal, specifically whether they were reasonably arguable, and whether the respondent's financial position warranted such an order. The court also had to assess whether an arguable case of procedural unfairness arose from the primary judge's conduct towards a witness in the presence of the jury, and whether a question of public interest arose in relation to the defence of honest opinion under section 31 of the *Defamation Act 2005* (NSW).

The Court of Appeal dismissed the application for security for costs. The court found that the grounds of appeal were reasonably arguable, particularly concerning the potential procedural unfairness and the public interest element of the honest opinion defence. The court concluded that these arguable grounds, combined with the respondent's impecuniosity, did not constitute special circumstances that would justify ordering security for costs.

Consequently, the Court of Appeal ordered that the respondent's notice of motion filed on 11 July 2018 be dismissed with costs.