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

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.

CaseChat Overview and Summary

The case of Noack v Adlam, which was heard by the Supreme Court of South Australia, involves the appellant, Noack, who unsuccessfully sought damages from the respondent, Adlam, on the basis of defamation. The respondent successfully defended herself against the defamation claim, arguing justification, and also claimed damages for an indecent assault that occurred on the same date as the alleged defamation. Noack has appealed against the decision, and the court was required to decide whether to stay the execution of the judgment and whether to grant the respondent an order for security for costs.

The court found that special or exceptional circumstances were necessary for either a stay of execution or an order for security for costs to be granted. The court found that there were no special or exceptional circumstances in favour of the appellant, as there was little prospect of success in the appeal due to the credibility findings made by the trial judge and the significance of witness demeanour in those findings. Additionally, the court noted the stress experienced by the respondent, which had already prompted another judge to expedite the matter. Therefore, the court refused the application for a stay and granted the respondent an order for security for costs in the amount of $10,000, payable within 14 days.

In light of the above findings, the court ordered that Noack must pursue the appeal in accordance with the order already made for expedition. The court further directed that the matter could be listed for hearing by the Full Court in its next sittings, should the appeal be set down soon and an appropriate application be made at the callover of the Full Court matters scheduled for 25 June. Finally, the court ordered that Noack pay the respondent's costs for the two applications dealt with on that day.

The court certified this decision for counsel, indicating that it was suitable for citation in legal arguments and discussions.

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

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