Porter v Gordian Runoff Ltd (No 3)

CITATION:	Porter v Gordian Runoff Ltd (No.3) [2005] NSWCA 377
HEARING DATE(S):	10 October 2005
JUDGMENT DATE:	10 October 2005
JUDGMENT OF:	Tobias JA at 1
DECISION:	(a) Order that the appeal filed by the opponent on 17 December 2003 be dismissed with costs; (b) Order that the opponent pay the first respondent's costs of the Notice of Motion filed by it on 21 September 2005 and the costs of the second respondent of the Notice of Motion filed by it on 6 July 2004 and the amended Notice of Motion filed by it on 10 October 2005

CATCHWORDS:	COSTS – Order for security for costs – Dismissal of appeal for failure to comply – Dismissal for want of prosecution – Supreme Court Act 1970 s 46(1) – Supreme Court Rules 1970 Pt 51 r 24 – Uniform Civil Procedure Rules 2005 r 42.21(3)
LEGISLATION CITED:	Civil Procedure Act 2005 Supreme Court Act 1970 Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005
CASES CITED:	Fairey v Fairey (No 2) [2000] NSWCA 173 Idoport Pty Limited v National Australia Bank Limited [2002] NSWSC 18 Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWCA 271 Porter v Gordian Runoff Ltd [2004] NSWCA 69 Porter v Gordian Runoff Ltd [2004] NSWCA 171
PARTIES:	Robert Arthur Porter Gordian Runoff Ltd
FILE NUMBER(S):	CA 40823/03
COUNSEL:	A: In person 1R: Mr Jones 2R: Mr Gruzman
SOLICITORS:	A: In person 1R:Ebsworth & Ebsworth 2R: Bamford Associates

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

CA 40823/03

TOBIAS JA

10 October 2005

ROBERT ARTHUR PORTER v GORDIAN RUNOFF LTD & ANOR

Judgment

1 TOBIAS JA: In 2000, Robert Arthur Porter (the opponent) was charged with breaches of the Corporations Law arising out of a transaction in which he was involved as managing director of OAMPS Limited (the second respondent). For reasons that are not presently relevant, the trial of those charges did not proceed and, in July 2002, a nolle prosequi was entered. In defending these proceedings, the opponent incurred some hundreds of thousands of dollars in costs.

2 In 2001, the opponent instituted proceedings against Gordian Runoff Ltd (formerly known as GIO Insurance) (the first respondent) and the second respondent. He claimed to be entitled to be indemnified for the costs incurred by him in defending the criminal proceedings under an insurance policy issued by the first respondent and otherwise to be indemnified by the second respondent as his employer.

3 The respondents raised many defences but central to a number of them was the allegation that the opponent by his conduct in respect of which the criminal proceedings were commenced, breached the law and improperly placed his own interests before those of his employer.

4 On 21 August 2003 McClellan J in a lengthy judgment determined that the opponent's claims should be dismissed. On 17 December 2003 the opponent then filed a Notice of Appeal with Appointment to this Court.…