Porter v Gordian Runoff Ltd (No.3) [2005] NSWCA 377

Porter v Gordian Runoff Ltd (No.3) [2005] NSWCA 377

The opponent had not complied with the security for costs order made on 16 March 2004 and conceded he was unable and would continue to be unable to do so. More than 18 months had elapsed, he had notice that dismissal would be sought, the respondents would suffer prejudice and unrecoverable costs if required to defend the appeal, and limiting the appeal to the apprehended bias grounds would not significantly reduce the length or complexity of the appeal. The continuing non-compliance was powerful evidence of want of prosecution, so the discretion under Pt 51 r 24 of the Supreme Court Rules 1970 should be exercised to dismiss the appeal.

Jurisdiction
Australia
Judgment Date
10 October 2005
Procedural Posture
Appeal and Respondents' Motions to Dismiss for Failure to Provide Security for Costs or for Want of Prosecution / Court of Appeal Hearing of the First Respondent's Notice of Motion Filed on 21 September 2005 and the Second Respondent's Notice of Motion Filed on 6 July 2004 and Amended Notice of Motion Filed on 10 October 2005
Outcome
Appeal dismissed with costs for want of prosecution.
Legal Topics
['security for Costs' 'dismissal of Appeal' 'want of Prosecution' 'failure to Comply With Court Order' 'apprehended Bias Ground of Appeal']
['civil Procedure' 'costs' 'appeals'] ['security for Costs' 'dismissal of Appeal' 'want of Prosecution' 'failure to Comply With Court Order' 'apprehended Bias Ground of Appeal']

Case Brief

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Procedural Posture

Appeal and Respondents' Motions to Dismiss for Failure to Provide Security for Costs or for Want of Prosecution / Court of Appeal Hearing of the First Respondent's Notice of Motion Filed on 21 September 2005 and the Second Respondent's Notice of Motion Filed on 6 July 2004 and Amended Notice of Motion Filed on 10 October 2005

Legal Issues

  1. 1 ['Whether the appeal should be dismissed because the opponent failed to comply with the order to provide security for costs.' "Whether the opponent's failure to provide security for costs amounted to want of prosecution under Pt 51 r 24 of the Supreme Court Rules 1970." 'Whether reducing the appeal to apprehended bias grounds would justify discharging or varying the security for costs order.']

Ratio Decidendi

The opponent had not complied with the security for costs order made on 16 March 2004 and conceded he was unable and would continue to be unable to do so. More than 18 months had elapsed, he had notice that dismissal would be sought, the respondents would suffer prejudice and unrecoverable costs if required to defend the appeal, and limiting the appeal to the apprehended bias grounds would not significantly reduce the length or complexity of the appeal. The continuing non-compliance was powerful evidence of want of prosecution, so the discretion under Pt 51 r 24 of the Supreme Court Rules 1970 should be exercised to dismiss the appeal.

Court Disposition

Appeal dismissed with costs for want of prosecution.

Orders

  • ['Order that the appeal filed by the opponent on 17 December 2003 be dismissed with costs.' "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...