Porter v Gordian Runoff Ltd - [2004] NSWCA 69

CITATION: Porter v. Gordian Runoff Limited & Anor. [2004] NSWCA 69

HEARING DATE(S): 23 February 2004

JUDGMENT DATE:
16 March 2004

JUDGMENT OF: Hodgson JA at 1

DECISION: 1. I order that the appellant provide security for costs in the sum of $150,000.00 for each respondent, and that if this security is not provided within fourteen days, that the appeal be stayed until such security is provided. 2. I dismiss the appellant's application concerning appeal books. 3. I order the appellant to pay the respondents' costs of all three applications.

CATCHWORDS: PROCEDURE - Costs - Security for costs - Appeal - Impecuniosity of appellant - Whether special circumstances - Whether security should be ordered.

LEGISLATION CITED: Supreme Court Rules Part 51, rule 16, Part 52A rules 43, 43A

CASES CITED: Abdurahman v. Field NSWCA 4/3/86
Australian Democrats WA v. Australian Democrats Victoria, unreported, Supreme court of WA Full Court, 7/10/98
Bethune v. Porteous (1892) 18 VLR 493
Bhattacharya v. Friedman [2001] NSWSC 498
Chiappina v. Chiapppina (1983) 70 FLR 287
Citicorp Australia Limited v. Cirillo [2003] SASC 204
Cowell v. Tayloer (18850) 31 ChD 34
Harlock v. Ashberry (1881) 19 ChD 84
Kardynal v. Dodek [1978] VR 414
Kennedy v. McGeechan [1978] 1 NSWLR 314
Lall v. 53-55 Hall Street Pty. Limited [1978] 1 NSWLR 310
Maritime Services Board of NSW v. Citizens Airport Environment Association Inc., NSWCA, 23/12/92
McWilliam v. Penthouse Publications [1999] NSWCA 2
Morris v. Hanley [2000] NSWSC 957
Paul v. Snowdon Hubbard & Co. [1899] 1 QB 593
Saba v. National Australian Bank Limited [1999] NSWCA 93
Scerri v. Northam Holdings Holdings Pty. Limited [1967] VR 674
Stevens v. Economic Home Builders Limited [1938] 1 All ER 654
Strata Consolidated (Australia) Pty. Limited v. Bradshaw [2000] NSWCA 114
Uptown Sydney Development Corporation Pty. Ltd. v. Bank of New Zealand (1993) 11 ACLC 862
Whitlam v. Australian Securities & Investment Commission [2003] NSWCA 183

PARTIES :
Robert Arthur Porter - appellant
Gordian Runoff Limited - 1st appellant
OAMPS Limited - 2nd appellant

FILE NUMBER(S): CA CA 40823/03

COUNSEL: Mr. Hayes QC with Mr. A. Paterson for appellant
Mr. C.A. Moore for 1st respondent
Mr. P. Biscoe QC with Mr. A.M.Gruzmzan for 2nd respondent

SOLICITORS: Withnell Hetherington, Sydney for appellant
Ebsworth & Ebsworth, Sydney for 1st respondent
Bamford & Associates, Sydney for 2nd respondent

LOWER COURTJURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): ED 50072/01

LOWER COURT
JUDICIAL OFFICER : McClellan J

CA 40823/03
ED 50072/01

HODGSON JA
Tuesday 16 March 2004

PORTER V. GORDIAN RUNOFF LTD. & ANOR.

Judgment

1 HODGSON JA: On 21 August 2003, after a trial lasting 63 days, McClellan J in the Equity Division Commercial List gave a judgment of 385 pages plus annexures in proceedings in which the appellant had sued an insurance company, the first respondent (Gordian), and his former employer, the second respondent (OAMPS). There were cross-claims in the proceedings by Gordian and OAMPS, but they turned out to be of little consequence in the event that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWCA 69
Decision Date: 16 March 2004

CaseChat Overview and Summary

In *Porter v Gordian Runoff Ltd*, the appellant sought to appeal a decision of the primary judge. The respondents applied for security for costs of the appeal, citing the appellant's impecuniosity. The primary issue before Hodgson JA was whether special circumstances existed to warrant ordering security for costs against the appellant.

The court was required to determine whether the appellant's financial position constituted special circumstances justifying an order for security for costs. This involved assessing the appellant's impecuniosity and considering whether it would be unjust to allow the appeal to proceed without security, given the potential inability of the appellant to meet the respondents' costs if the appeal were unsuccessful.

Hodgson JA reasoned that the appellant's impecuniosity was a significant factor. The court applied the principle that while impecuniosity alone is not usually sufficient to order security for costs, it can be a special circumstance when combined with other factors that suggest an abuse of process or injustice if security is not ordered. In this instance, the court found that the appellant's financial state, coupled with the nature of the proceedings, warranted the imposition of security.

Consequently, Hodgson JA ordered the appellant to provide security for costs in the sum of $150,000.00 for each respondent. The appeal was to be stayed if this security was not provided within fourteen days. The appellant's application concerning appeal books was dismissed, and the appellant was ordered to pay the respondents' costs of all three applications.

Orders

Orders of the court

1. I order that the appellant provide security for costs in the sum of $150,000.00 for each respondent, and that if this security is not provided within fourteen days, that the appeal be stayed until such security is provided. 2. I dismiss the appellant's application concerning appeal books. 3. I order the appellant to pay the respondents' costs of all three applications.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Porter v. Gordian Runoff Limited & Anor. [2004] NSWCA 69
HEARING DATE(S):	23 February 2004
JUDGMENT DATE:	16 March 2004
JUDGMENT OF:	Hodgson JA at 1
DECISION:	1. I order that the appellant provide security for costs in the sum of $150,000.00 for each respondent, and that if this security is not provided within fourteen days, that the appeal be stayed until such security is provided. 2. I dismiss the appellant's application concerning appeal books. 3. I order the appellant to pay the respondents' costs of all three applications.
CATCHWORDS:	PROCEDURE - Costs - Security for costs - Appeal - Impecuniosity of appellant - Whether special circumstances - Whether security should be ordered.
LEGISLATION CITED:	Supreme Court Rules Part 51, rule 16, Part 52A rules 43, 43A
CASES CITED:	Abdurahman v. Field NSWCA 4/3/86 Australian Democrats WA v. Australian Democrats Victoria, unreported, Supreme court of WA Full Court, 7/10/98 Bethune v. Porteous (1892) 18 VLR 493 Bhattacharya v. Friedman [2001] NSWSC 498 Chiappina v. Chiapppina (1983) 70 FLR 287 Citicorp Australia Limited v. Cirillo [2003] SASC 204 Cowell v. Tayloer (18850) 31 ChD 34 Harlock v. Ashberry (1881) 19 ChD 84 Kardynal v. Dodek [1978] VR 414 Kennedy v. McGeechan [1978] 1 NSWLR 314 Lall v. 53-55 Hall Street Pty. Limited [1978] 1 NSWLR 310 Maritime Services Board of NSW v. Citizens Airport Environment Association Inc., NSWCA, 23/12/92 McWilliam v. Penthouse Publications [1999] NSWCA 2 Morris v. Hanley [2000] NSWSC 957 Paul v. Snowdon Hubbard & Co. [1899] 1 QB 593 Saba v. National Australian Bank Limited [1999] NSWCA 93 Scerri v. Northam Holdings Holdings Pty. Limited [1967] VR 674 Stevens v. Economic Home Builders Limited [1938] 1 All ER 654 Strata Consolidated (Australia) Pty. Limited v. Bradshaw [2000] NSWCA 114 Uptown Sydney Development Corporation Pty. Ltd. v. Bank of New Zealand (1993) 11 ACLC 862 Whitlam v. Australian Securities & Investment Commission [2003] NSWCA 183
PARTIES :	Robert Arthur Porter - appellant Gordian Runoff Limited - 1st appellant OAMPS Limited - 2nd appellant
FILE NUMBER(S):	CA CA 40823/03
COUNSEL:	Mr. Hayes QC with Mr. A. Paterson for appellant Mr. C.A. Moore for 1st respondent Mr. P. Biscoe QC with Mr. A.M.Gruzmzan for 2nd respondent
SOLICITORS:	Withnell Hetherington, Sydney for appellant Ebsworth & Ebsworth, Sydney for 1st respondent Bamford & Associates, Sydney for 2nd respondent

LOWER COURTJURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	ED 50072/01
LOWER COURT JUDICIAL OFFICER :	McClellan J