Porter v Gordian Runoff Ltd

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CITATION: PORTER v. GORDIAN RUNOFF LIMITED [2004] NSWCA 171
HEARING DATE(S): 27/05/2004
JUDGMENT DATE:
1 July 2004
JUDGMENT OF: Sheller JA at 1; Giles JA at 2; Bryson JA at 3
DECISION: Refuse to discharge Hodgson JA's order for security for costs: [2004] NSWCA 69; Notice of Motion dismissed with costs.
CATCHWORDS: PRACTICE and PROCEDURE - Court of Appeal - security for costs - Hodgson JA ordered security for costs of appeal from McClellan J - likely that requiring security would stifle the appeal as appellant could not comply - on review of suggested errors, CA refused to discharge the order for security.
LEGISLATION CITED: Supreme Court Act 1970; s.46(4)
Supreme Court Rules 1970; Pt.51 r.56; Pt.51 r.16
Equity Act 1901; s.81
CASES CITED: Transglobal Capital Pty Limited & Ors v. Yolarno Pty Limited [2004] NSWCA 136
Patrick v. Howorth [2002] NSWCA 285
House v. The King (1936) 55 CLR 499
Saba v. National Australia Bank Limited [1999] NSWCA 93
Briginshaw v. Briginshaw (1938) 60 CLR 336
Hall v. Snowden, Hubbard & Co. [1899] 1 QB 593
Heckscher v. Crosley [1891] 1 QB 224
Cowell v. Taylor (1883) 31 Ch D 34

PARTIES :

Robert Arthur Porter - Appellant
Gordian Runoff Limited (formerly known as GIO Insurance Limited) - First Respondent
Oamps Limited - Second Respondent
FILE NUMBER(S): CA 40823/2003
COUNSEL: N. Hutley SC & A. Paterson - Appellant
C.A. Moore - First Respondent
P.M. Biscoe QC & A.M. Gruzman - Second Respondent
SOLICITORS: Withnell Hetherington - Appellant
Ebsworth & Ebsworth - First Respondent
Bamford Associates - Second Respondent
LOWER COURTJURISDICTION: Court of Appeal single judge
LOWER COURT FILE NUMBER(S): 50072/2001
LOWER COURT
JUDICIAL OFFICER :
Hodgson JA


                          40823 of 2003

                          SHELLER JA
                          GILES JA
                          BRYSON JA

                          Thursday 1 July 2004

ROBERT ARTHUR PORTER


v.


GORDIAN RUNOFF LIMITED (FORMERLY KNOWN AS GIO INSURANCE LIMITED) AND OAMPS LIMITED


Judgment

1 SHELLER JA: I agree with Bryson JA.

2 GILES JA: I agree with Bryson JA.

3 BRYSON JA: The appellant applies to the Court of Appeal pursuant to s.46(4) of the Supreme Court Act 1970 and Pt.51 r.56 of Supreme Court Rules 1970 to discharge an order for security for costs and an order for costs of three applications. The appellant was formerly managing director of the second respondent, and was involved in civil and criminal proceedings which arose out of events while he was managing director. The appellant as plaintiff brought proceedings 50072 of 2001 in the Commercial List against the respondents as defendants claiming against the first respondent indemnity under an insurance policy and against the second respondent indemnity under a provision of its Articles of Association against costs which the appellant had incurred in the civil and criminal proceedings. After a hearing of 63 days McClellan J, for reasons published on 21 August 2003, made orders on 22 August 2003 which had the effect of dismissing all the appellant’s claims. The appellant appealed. The respondents, which are separately represented and are not in the…

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Details
Case
[2004] NSWCA 171
Decision Date

CaseChat Overview and Summary

The Court of Appeal of New South Wales, comprising Sheller, Giles, and Bryson JJA, considered an application to discharge an order for security for costs made by Hodgson JA. The appellant, Porter, sought to appeal a decision of McClellan J, but an order had been made requiring security for the costs of the appeal. The central contention was that the appellant would be unable to comply with the security order, thereby stifling the appeal.

The primary legal issue before the Court of Appeal was whether Hodgson JA's order for security for costs should be discharged. This required the Court to assess whether the appellant had demonstrated that the order for security was likely to prevent the appeal from being heard, and if so, whether the interests of justice favoured discharging the order.

The Court of Appeal reviewed the reasons for the original order and the arguments presented by the appellant. While acknowledging the potential for the security order to prevent the appeal from proceeding, the Court ultimately found no sufficient grounds to interfere with Hodgson JA's decision. The Court applied the principles governing applications for security for costs, balancing the need to protect respondents from incurring costs in defending appeals that may be without merit against the appellant's right to have their appeal heard. The Court concluded that the order for security for costs was properly made and should stand.

Consequently, the Court of Appeal refused to discharge the order for security for costs and dismissed the appellant's notice of motion with costs.

Orders

Orders of the court

Refuse to discharge Hodgson JA's order for security for costs: [2004] NSWCA 69; Notice of Motion dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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