PRESTON v HARBOUR PACIFIC UNDERWRITING MANAGEMENT PTY LTD [2007] NSWCA 247

PRESTON v HARBOUR PACIFIC UNDERWRITING MANAGEMENT PTY LTD [2007] NSWCA 247

Even on the view most favourable to the Appellant that the Court could reconsider the Registrar's orders afresh, the alleged new material did not justify interference. The material could have been obtained before or during the trial and therefore was not fresh evidence satisfying Wollongong Corporation v Cowan; in any event, it could not be said with confidence that it would have produced an opposite result. The appeal had no real prospect of success, which constituted a special circumstance warranting security for costs and removed any significant concern about stifling a genuine and arguable appeal.

Jurisdiction
Australia
Judgment Date
14 September 2007
Procedural Posture
Motion to Review Registrar's Orders for Security for Costs in an Appeal From a Jury Verdict in Defamation Proceedings / Court of Appeal Review of Orders Made by Registrar Schell on 31 May 2007
Outcome
Motion refused with costs.
Legal Topics
['appeal From Jury Verdict' 'application for New Trial' 'fresh Evidence' 'review of Registrar Decision' 'special Circumstances for Security for Costs']
['defamation' 'civil Procedure' 'appeals' 'security for Costs'] ['appeal From Jury Verdict' 'application for New Trial' 'fresh Evidence' 'review of Registrar Decision' 'special Circumstances for Security for Costs']

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Procedural Posture

Motion to Review Registrar's Orders for Security for Costs in an Appeal From a Jury Verdict in Defamation Proceedings / Court of Appeal Review of Orders Made by Registrar Schell on 31 May 2007

Legal Issues

  1. 1 ["Whether the Court should review or interfere with Registrar Schell's orders requiring the Appellant to provide security for costs." "Whether the Appellant's proposed appeal based on newly discovered material had sufficient prospects of success." 'Whether the alleged new material constituted fresh evidence capable of justifying a new trial after a jury verdict.' 'Whether special circumstances existed for ordering security for costs.']

Ratio Decidendi

Even on the view most favourable to the Appellant that the Court could reconsider the Registrar's orders afresh, the alleged new material did not justify interference. The material could have been obtained before or during the trial and therefore was not fresh evidence satisfying Wollongong Corporation v Cowan; in any event, it could not be said with confidence that it would have produced an opposite result. The appeal had no real prospect of success, which constituted a special circumstance warranting security for costs and removed any significant concern about stifling a genuine and arguable appeal.

Court Disposition

Motion refused with costs.

Orders

  • ['Motion to review orders of Registrar Schell made on 31 May 2007 refused.' "Claimant to pay Opponents' costs of motion."]