Court of Appeal Supreme Court New South Wales Medium Neutral Citation: DD v PP [2022] NSWCA 98 Hearing dates: 27 May 2022 Decision date: 27 May 2022 Before: White JA Decision: (1) Order that by 31 August 2022 the appellant give security for the respondent's costs of the appeal in the amount of $32,000 by payment into court or provision of security to the satisfaction of the Registrar. (2) Order that the proceedings in this court be stayed until such security is given. (3) Liberty to the respondent to apply after 31 August 2022 for an order that the appeal be dismissed if the security ordered has not been provided by then. (4) Order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that there be no further disclosure of the identity of the respondent and that the proceedings in this Court be known as DD v PP. (5) This order applies to the disclosure of information in the State of New South Wales and operates until further order. (6) These orders are made on the grounds in s 8(1)(a) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW). (7) Order that the notice of motion filed on 23 March 2022 be otherwise dismissed. (8) Order that the costs of the notice of motion filed on 23 March 2022 be the respondent's costs in the appeal. Catchwords: COSTS – Security for costs – On appeal – Whether appellant should provide security for the respondent's costs of the appeal – "Special circumstances" – Whether the appeal is reasonably arguable – Whether the appeal might be stifled if an order for security were made. Legislation Cited: Civil Procedure Act 2005 (NSW) s 63 Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8 Crimes Act 1900 (NSW) ss 78Q, 578A Criminal Procedure Act 1986 (NSW) Felons (Civil Proceedings) Act 1981 (NSW) s 4 Interpretation Act 1987 (NSW) Supreme Court Act 1970 (NSW) s 46 Uniform Civil Procedure Rules, r 51.2 Cases Cited: AB v Curry & Anor (No. 3) [2015] NSWSC 1677 Mr D v Ms P [2020] NSWCA 174 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hamzy v Commissioner of Corrective Services NSW [2022] NSWCA 16 Patsalis v New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 Texts Cited: Perry Herzfeld and Thomas Prince Interpretation, (2 ed, 2020 Thomson Reuters) Category: Principal judgment Parties: DD (Appellant/Respondent on Motion) PP (Respondent/Applicant on Motion) Representation: Counsel: Mr Hall (Solicitor) (Appellant/Respondent on Motion) Mr Andrews (Respondent/Applicant on Motion) Solicitors: Hall Partners (Appellant/Respondent on Motion) Carroll & O'Dea (Respondent/Applicant on Motion) File Number(s): 2021/361018 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment – EX TEMPORE 1. WHITE JA: The respondent (PP) commenced proceedings in the Common Law Division against the appellant (DD) claiming damages for sexual assault alleged to have occurred in 1985 when the appellant was under the age of 18. DD was convicted of an offence of gross indecency contrary to s 78Q(1) of the Crimes Act 1900 (NSW). In his amended defence to the plaintiff's statement of claim, DD admitted PP's allegation that between 8 June 1985 and 31 August 1985 he had assaulted, sexually assaulted and/or abused PP, knowing at the time that PP was under the age of 18 years. There is a question, to which I will return later in these reasons, as to whether DD had intended to admit that fact, or had intended merely to admit conviction of the offence. 2. At the trial, DD did not give evidence. PP's version of events was challenged in cross-examination, but his evidence was accepted by the judge. On 15 October 2021 PP obtained judgment for a sum in excess of $1.2 million. Notice of intention to appeal was not filed until 20 December 2021. A notice of appeal was filed on 23 February 2022. These documents were filed out of time. The solicitor with the carriage of the matter wrongly thought that the material date for which time ran (see Uniform Civil Procedure Rules, r 51.2) was 23 November not 15 October 2021. 3. DD is presently in custody. He is serving a sentence of imprisonment for other serious indictable offences as that expression is defined in the Interpretation Act 1987 (NSW). 4. On 23 March 2022, PP filed a notice of motion seeking the following relief: "1. Pursuant to Part 51 rule 51.8 of the Uniform Civil Procedure Rules the notice of intention to appeal filed on 20 December 2021 was incompetent in that it was filed more than 28 days after the material date being 15 October 2021. 2. Pursuant to Part 51 rule 51.9 of the Uniform Civil Procedure Rules 2005 the notice of appeal filed on 23 February 2022 was incompetent having been filed more than 3 months after the material date of 15 October 2021. 3. Pursuant to Part 51 rule 51.18(1)(e) of the Uniform Civil Procedure Rules 2005 the notice of appeal be dismissed, the notice of appeal not specifically setting out the grounds to be relied upon in support of the appeal. 4. The appellant's notice of appeal is pursuant to s.4 of the Felons (Civil Proceedings) Act 1981 incompetent in the absence of leave to file the appeal. 5. In the alternative an order pursuant to Part 42 rule 42.21(1)(e) and/or (f) and/or Part 51 rule 51.50 of the Uniform Civil Procedure Rules that the appellant provide security for costs. 6. Further and/or in the alternative that pursuant to s.108 of the Civil Procedure Act 2005 that the court orders the appellant to attend court to be orally examined in relation to the provision of security for costs of the appeal filed by him on 23 February 2022. 7. Such other orders as the court deems fit. 8. The appellant to pay the respondent/applicant's costs of the notice of motion." 1. During the course of submissions, the claims for relief in paragraphs 1 to 4 fell away. Counsel for PP accepted that the notice of appeal was not incompetent, in the sense of invalid, for not having been filed within time (Civil Procedure Act 2005 (NSW) s 63). I understood counsel also to accept that the powers of a single judge under s 46 of the Supreme Court Act would not have extended to a power to dismiss the appeal for the reasons stated in paras 1 and 2 of the notice of motion, nor for the reason asserted in para 3 of the notice of motion. Counsel for PP also ultimately accepted that the appellant did not require leave under s 4 of the Felons (Civil Proceedings) Act 1981 to file the appeal (see Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 at [5], [43], [56] and [112]-[113]; Hamzy v Commissioner of Corrective Services NSW [2022] NSWCA 16 at [171]-[181]). 2. The remaining issue concerned security for costs. The appellant is an individual. Rule 51.50 of the Uniform Civil Procedure Rules relevantly provides: "(1) In special circumstances, the Court may order that such security as the Court thinks fit be given for costs of an appeal. (2) Subject to subrules (1) and (3), no security for costs of an appeal is to be required. (2A) If an appellant or cross-appellant fails to comply with an order under this rule, the Court may order that the appellant's appeal or cross-appellant's cross-appeal be dismissed. (3) Subrules (1), (2) and (2A) do not affect the powers of the Court under rule 42.21 (which relates to security for costs)." 1. As is clear from that rule, in order to make an order that the appellant provide security for the respondent's costs of the appeal, it is necessary that I find that "special circumstances" exist. In D v P [2020] NSWCA 174, Bell P, as his Honour then was, identified the following principles relevant to the concept of "special circumstances" within the meaning of the rule, namely: "(1) no order for security should be made in the absence of 'special circumstances'; (2) consideration of what may constitute special circumstances should not be fettered by some general rule of practice; (3) impecuniosity, without more, will usually be insufficient; (4) an order may be appropriate if the appeal is shown to be hopeless, unreasonable or of an harassing nature; (5) where a bona fide and reasonably arguable appeal would be stifled by an order for security, such an order should usually not be made, and (6) the subject matter of the appeal, including an issue as to the liberty of the individual, or a public interest may provide a reason for not imposing a security order which would stifle the continuation of the appeal." 1. There is no issue that DD does not have the financial resources to meet a costs order of the appeal if his appeal is unsuccessful. But there is no evidence, unless it arises by inference, that the appeal on that account would be stifled if security were ordered. 2. On 11 May 2021 the appellant became bankrupt on his own petition. A trustee in bankruptcy has been appointed to his bankrupt estate. His petition reveals assets consisting of five motor vehicles having values ranging between $7,503 and $15,314 and a house in Sans Souci which, according to the petition, had an estimated current value of $3 million. The petition reveals but one creditor being a Mr BB, who is said to be owed $3,400,000, and whose alleged debt is described as "money owed to family/friends". There was no evidence as to whether Mr BB or any other friend might be prepared to provide for the appellant any security that might be ordered. 3. A material consideration in determining the existence of special circumstances is whether the appeal is shown to be hopeless or unreasonable, or whether the appeal is reasonably arguable and might be stifled if an order for security were made. 4. The grounds of appeal primarily challenge the judge's finding on liability and the sufficiency of the judge's reasons in holding that the evidence of PP as to the events which occurred giving rise to the assaults, or which constituted the assaults should be accepted. Notwithstanding the admission in the defence, it appears that the trial may have proceeded on the basis that DD was entitled to and did challenge the respondent's evidence that he was sexually abused. I am told that DD did not give evidence disputing PP's version of events. Instead his version of events was challenged in cross-examination. The judge found that the matters raised by DD in his solicitor's cross-examination of PP did not cause him to doubt the occurrence of the events. His Honour accepted PP's version of the events. 5. DD said that the judge's reasons for accepting PP's evidence were insufficient. DD points out that in dealing with the claim for damages, the judge did not accept major aspects of the claim that PP put forward at trial. 6. That being acknowledged, it is far from clear to me that the judge's reasons would be held to be deficient, particularly when, as I infer, that was the only version of events before the judge. 7. The judge acknowledged that that fact did not compel him to accept PP's evidence. But he was nonetheless satisfied that he should do so. That finding must have been based on his observations of PP in the witness box. In my view the prospects of that finding being overturned on appeal, having regard to the principles in cases such as Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, are slight at best. 8. DD also challenges the judge's findings on quantum of damages. But the grounds upon which those findings are challenged are not elucidated by the grounds of appeal, nor in the appellant's submissions filed in support of the appeal. I do not conclude that the appeal should be regarded as having strong prospects of success. Indeed, on the materials before me, I doubt that it is reasonably arguable. 9. I have regard also to the circumstance that there appear to be considerable obstacles in the way of the appellant's enforcement of the judgment he has, if the appeal is dismissed. Prior to the hearing, DD had given an undertaking to PP's solicitors that he would not dispose of or encumber the Sans Souci property. However, that undertaking would appear not to preclude the trustee in bankruptcy from dealing with the property to satisfy any debts that are provable in the bankruptcy, including any moneys that are owing to Mr BB. It was accepted that at the date of bankruptcy, PP's claim for damages in tort for personal injury was not a provable debt. Even if the proceeds of sale of the Sans Souci property, or a substantial part of them, become available to PP, it appears that there may well be other plaintiffs with currently unresolved claims for damages against DD who may also be, or become, entitled to share in such proceeds. Accordingly, there is a real prospect that if the appeal fails, PP will be out of pocket for the costs of the appeal and will have no means of recovering those costs even if, as would presumably be the case, he obtained an order for the costs of the appeal. 10. I am satisfied that special circumstances exist warranting an order for the provision of security for costs and that it is appropriate to make such provision. 11. PP seeks security in the sum of $41,000 which has been calculated on the basis of two counsel being employed for PP and that the recoverable costs be calculated on the basis of three days for preparation and attendance at hearing for counsel, and the same period for solicitors. 12. In so far as solicitors' costs are concerned, I think the estimate of three full days for both preparation and attendance of hearing is somewhat excessive. I accept that it would be appropriate, having regard to the length of the hearing at trial and the still somewhat uncertain nature of the challenge to the judge's decision, that two counsel be employed. The estimated additional expenses that PP's solicitor describes total $41,000 being $27,000 for counsel and $14,000 for solicitors. These figures are inclusive of GST. As I understand his affidavit, this is an estimate of the likely actual costs to be incurred, and not necessarily the cost that would be recoverable on the ordinary basis, assuming that the respondent obtains an order for the costs of the appeal but only on the ordinary basis. 13. Applying a broad brush and proceeding as I do on the basis that security should be provided on an assumption that costs awarded be on the ordinary basis, I consider that the appropriate quantum of security should be $32,000. 14. DD is eligible for parole in early July this year. His solicitor asked that the period for the provision of security be not 28 days but be up to 31 August 2022. That time is not opposed. For these reasons I make the following orders: 1. Order that by 31 August 2022 the appellant give security for the respondent's costs of the appeal in the amount of $32,000 by payment into court or provision of security to the satisfaction of the Registrar. 2. Order that the proceedings in this court be stayed until such security is given. 3. Liberty to the respondent to apply after 31 August 2022 for an order that the appeal be dismissed if the security ordered has not been provided by then. 1. A further question has been raised by me in relation to whether the proceedings should be anonymised. The judgments of the primary judge have not been anonymised but I was told that the primary judge was not referred to the provisions of s 578A of the Crimes Act. It relevantly provides, by subs 2, that "a person shall not publish any matter which identifies the complainant in prescribed sexual offence proceedings, or any matter which is likely to lead to the identification of the complainant". That provision applies even though the prescribed sexual offence proceedings have been finally disposed of (s 578A(3)). 2. The offence concerning PP of which DD was convicted is a prescribed sexual offence within the meaning of the Criminal Procedure Act. Therefore s 578A applies. It may be accepted that the court itself is not "a person" referred to in the section (Herzfeld & Prince Interpretation, 2 ed, para 4.60 and cases referred to). 3. Nonetheless s 578A reflects a public policy relevant to the administration of justice that those who complain of sexual offences should not fear coming forward, lest their identity be revealed. This bears some analogy to the policy which provides for anonymity to be given to victims of blackmailers which is regarded as necessary for the administration of justice. In my view the policy underlying s 578A can also be said to be necessary for the administration of justice in a similar way (AB v Curry & Anor (No 3) [2015] NSWSC 1677 at [24] to [26]). 4. Notwithstanding that the primary judge did not accede to PP's submission that his name be anonymised by the use of a pseudonym, I think it appropriate that the proceedings in this court should be anonymised by the use of pseudonyms. Hence in these reasons I have referred to the appellant as DD and the respondent as PP. I am satisfied that a non-publication order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) is necessary to prevent prejudice to the proper administration of justice in the sense I have described it (s 8(1)(a)) and is otherwise necessary in the public interest for the same reasons, which public interest significantly outweighs the public interest in open justice (s 8(1)(e)). 5. For these reasons I make the following additional orders: (4) Order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that there be no further disclosure of the identity of the respondent and that the proceedings in this Court be known as DD v PP. (5) This order applies to the disclosure of information in the State of New South Wales and operates until further order. (6) These orders are made on the grounds in s 8(1)(a) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW). 1. Subject to hearing the parties I consider the appropriate order in relation to the costs of the notice of motion is that they be the respondent's costs in the appeal. [The parties addressed] 1. I make the following additional orders: (7) Order that the notice of motion filed on 23 March 2022 be otherwise dismissed. (8) Order that the costs of the notice of motion filed on 23 March 2022 be the respondent's costs in the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 June 2022