Noack v Adlam No. Scgrg-98-661 Judgment No. S6731

[1998] SASC 6731

TUESDAY, 16 JUNE 1998

NOACK v ADLAM
Application
Prior J
         The appellant failed in a claim for damages against the respondent. Defamation was alleged.   The trial judge held that the defence of justification was made out.  The respondent succeeded in her claim for damages for indecent assault, found to have occurred on the same date as the respondent was alleged to have defamed the appellant. 

An appeal to this Court is already the subject of an order for expedition.  The appellant seeks a stay of execution of the judgment, including the order for costs in the respondent's favour. The respondent did indicate that she would undertake not to commence the taxation process should the matter proceed for hearing in the Full Court next month.  The respondent seeks an order for security for costs. 
Special or exceptional circumstances are required before any order of the kinds now sought is made.  I find none in the appellant's favour.  On balance I find special circumstances in the respondent's favour.  Whilst not ignoring further submissions made on the respondent's behalf, I refer in particular to two grounds.  First, there is little or no real prospect of success in the appeal, given the credibility findings made by the trial judge and the fact that demeanour of witnesses was of significance in the credibility findings actually made.  Secondly, the respondent is subjected to stress, a matter which no doubt prompted another judge to make the order for expedition. 
I therefore refuse the application for a stay and grant an order giving the respondent security for costs in the sum of $10,000 payable within 14 days.  The appellant must pursue the appeal consistent with the order already made knowing that the matter could be listed for hearing by the Full Court in its next sittings, if the appeal be set down soon and an appropriate application made perhaps at the callover of the Full Court matters presently scheduled for 25 June. 
         The appellant is to pay the respondent's costs on the two applications dealt with this day.  Certify for counsel.