ANTHONY ALBERT TWINING v JACQUELINE ANNE CURTIS
[2014] ACTCA 19 (17 June 2014)
APPEAL – GENERAL PRINCIPLES – Security for costs on appeal – Single judge of the Court of Appeal of the Australian Capital Territory may hear and determine application for security for costs on appeal – Difference between security for costs at trial and security for costs on appeal – Factors to be taken into account in deciding application – Delay in filing application not sufficient to prevent application being successful – Impecuniosity of Appellant – Whether Respondent contributed to impecuniosity of Appellant – Appeal has little if any prospects of success – Application for security of costs allowed
TORT – Injurious Falsehood – Statements made in context of employment – Statements made in context of employment – Whether statements false – Whether statements malicious – Whether statement cause actual damage
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Supreme Court Act 1933 (ACT), s 37J(1)(k)
Court Procedures Rules 2006 (ACT), r 5302
Criminal Code 2002 (ACT), s 703
Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 19) (1995) 134 ALR 187
Brocklebank & Co v King’s Lynn Steam Ship Co (1878) 3 CPD 365
Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) (2008) 2 ACTLR 44
Ciappina v Ciappina (1983) 70 FLR 287
Cowell vTaylor (1885) 31 Ch D 34
Davey v Herbst (No 2) [2012] ACTCA 19
Drumdurno Pty Ltd v Braham (1982) 42 ALR 563
Farmwide Pty Ltd v Commonwealth of Australia [2013] ACTSC 74
Haskins Contractors Pty Ltd (in liquidation) v Sydney Airport Corporation Ltd [2002] NSWSC 267
Hughes v Janrule Pty Ltd (2011) 177 ACTR 1
Kennedy v McGeechan [1978] 1 NSWLR 314
Maher v Carpenter (2012) 7 ACTLR 216
Natcraft Pty Ltd (deregistered) v Det Norske Veritas [2002] QCA 241
National Bank of New Zealand Ltd v Donald Export Trading Ltd [1980] 1 NZLR 97
Newtons Travel Services Pty Ltd v Ansett Transport Industries (Operators) Pty Ltd (1982) 7 ACLR 556
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388
Pearson v Naydler [1977] 3 All ER 531
Rainbow v Kittoe [1916] 1 Ch 313
Remm Constructions (SA) Pty Ltd v Allco Newsteel Pty Ltd (1992) 57 SASR 180
Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198
Riverside Nursing Care Pty Ltd v Minister for Aged Care (2008) 63 ALD 122
R v Meyboom (2012) 256 FLR 450
Save the Ridge Inc v Commonwealth [2005] FCA 355
Shedden v Patrick [1861-73] All ER 724
Twining v Australian Public Service Commission [2006] FCA 129
Twining v Australian Public Service Commission [2007] HCA Trans 87
Twining v Curtis (2008) 1 ACTLR 226
Twining v Curtis (2009) 3 ACTLR 174
Twining v Curtis [2010] ACTSC 115
Twining v Curtis [2011] (2011) 216 FLR 70
Twining v Curtis [2013] ACTSC 149
Wagdy Hanna & Associates Pty Ltd v National Library of Australia [2013] ACTCA 24
ON APPEAL FROM THE MASTER OF THE SUPREME…
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- AGLC
- Twining v Curtis [2014] ACTCA 19
- Case
- [2014] ACTCA 19
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to grant the respondent's application for security for costs of the appeal. This involved considering the distinction between security for costs at trial and on appeal, the factors relevant to such an application, and whether the appellant's impecuniosity, and any contribution by the respondent to that impecuniosity, were relevant. The court also had to assess the prospects of success of the appeal itself.
Refshauge J reasoned that a single judge of the Court of Appeal has the power to hear and determine applications for security for costs. The judge noted that delay in filing an application for security for costs does not necessarily preclude its success. The court considered the appellant's impecuniosity and whether the respondent had contributed to it. Crucially, the court found that the appeal had little, if any, prospects of success. Applying these considerations, the court allowed the application for security for costs.
Consequently, Anthony Albert Twining was ordered to provide security in the amount of $25,000 for the costs of Jacqueline Anne Curtis of the appeal. This security was to be lodged with the Registrar of the Supreme Court of the Australian Capital Territory within twenty-eight days. The appeal was stayed pending the provision of security, and if the security was not provided within the specified timeframe, the appeal would be deemed dismissed, with the appellant to pay the respondent's costs. The appellant was also ordered to pay the respondent's costs of the security for costs application.
Orders
Orders of the court
1. Anthony Albert Twining give security in the amount of $25,000 for the costs of Jacqueline Anne Curtis of this appeal by lodging with the Registrar of the Supreme Court of the Australian Capital Territory $25,000 in cash or an irrevocable bank guarantee unlimited as to time in the amount of $25,000 in terms satisfactory to the Registrar within twenty-eight days from the date of this order.
2. The appeal be stayed pending the giving of the security as required in order 1.
3. If Anthony Albert Twining fails to give security, as required in order 1, within twenty-eight days from the date of this order, the appeal be deemed to have been dismissed and the Appellant is to pay the Respondent’s costs of the appeal to that date on a party and party basis.
4. Anthony Albert Twining pay the costs of Jacqueline Anne Curtis of the application for security for costs on a party and party basis to be paid on the judgment in the appeal or, if dismissed under order 3, upon the dismissal of the appeal.
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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