Porter v Gordian Runoff Ltd

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…