McWilliam v Penthouse Publications [1999] NSWCA 2

New South Wales Court of Appeal CITATION : McWilliam v Penthouse Publications [1999] NSWCA 2 FILE NUMBER(S) : CA 40506/98 HEARING DATE(S) : 12/10/98 JUDGMENT DATE : 21 January 1999

Anthony Charles Badham Jackson (1st claimant/2nd respondent) PARTIES : Ernest Ormond Butler Thomas & ors trading as Norton Smith (2nd claimants/3rd respondents) Bruce Scott McWilliam (1st opponent/appellant) Peter Bruce McWilliam (2nd opponent/appellant) JUDGMENT OF : Registrar Jupp

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 13527/88 LOWER COURT JUDICIAL OFFICER : Maconachie AJ

COUNSEL : claimants - Ms Oakley opponents - Mr Graham and Mr Hodgekiss SOLICITORS : claimants - Minter Ellison, Lawyers opponents - no solicitors instructed CATCHWORDS : security for costs DECISION : Motion in so far as it seeks security for costs dismissed; 1/3 of the costs of the motion to be claimants' costs of the appeal, 2/3 of the costs of the motion to be appellants' costs of the appeal

7

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40506/98

REGISTRAR JUPP

Thursday 21 January 1999 BRUCE SCOTT McWILLIAM & ANOR v PENTHOUSE PUBLICATIONS LIMITED (LONDON, UNITED KINGDOM) & ORS

JUDGMENT (on application for security for costs)

1. REGISTRAR: On 14 August 1998 the 2nd and 3rd respondents, Mr Jackson and Norton Smith, Solicitors, filed a motion which sought, firstly, to strike out the appeal in so far as it had been brought by Bruce McWilliam (senior) and secondly, for security for costs of the appeal. That motion was adjourned several times by consent and eventually heard on 12 October 1998. 2. The appeal was originally filed on 14 July 1998 by Monte Gildea, Solicitor. The Notice of Appeal nominated 3 appellants being Bruce McWilliam Snr, Bruce Scott McWilliam and Peter Bruce McWilliam. There were 6 respondents. 3. On 4 August 1998 Monte Gildea filed a notice of ceasing to act for the appellants. 4. During the hearing of the motion I ordered that the appeal, in so far as it had been brought by Bruce McWilliam (Senior) was to be struck-out. I made this order on the basis that Mr McWilliam (senior) had died prior to the appeal being filed. (See Marshall v DG Sundin & Co Pty Ltd (1989) 16 NSWLR 463 and Darrington v Caldbeck (1990) 20 NSWLR 212). I noted that the order was not to prejudice any application that the legal personal representative of the estate may make to be added as a party to the appeal, and I also directed that the widow of Mr McWilliam (senior) be advised of the order. 5. At the hearing of the motion, originally Mr Graham sought only to appear on behalf of Bruce Scott McWilliam. Ms Oakley, who appeared for the claimants opposed this and I agreed that there would be difficulties if the remaining appellants were not jointly represented. A Notice of Address for Service of the two remaining appellants was eventually filed in Court. This document, signed by Bruce Scott McWilliam on his own behalf and as attorney for Peter Bruce McWilliam, nominated Flat 2, 52 Mona Road, Darling Point as the address for service. Mr Graham and Mr Hodgekiss of counsel thereafter appeared to defend the motion for the two remaining appellants. 6. The appeal is from a decision of Maconachie AJ given on 17 June 1998. The proceedings were heard over several days during May and June 1998. The proceedings in the Common Law Division had been brought by the McWilliams (Bruce senior and junior, and Peter). They were the directors and shareholders of ADM Franchise Pty Limited (ADM), a printing and publishing company. In May 1979 ADM entered an agreement with Penthouse Publications Limited (PPL) by which a license was granted to ADM to allow it to publish the Australian edition of Penthouse. 7. On 30 August 1982 a notice was served on ADM at its registered office, which PPL asserted terminated its agreement with ADM. On the same day PPL entered the business premises of ADM and seized many of its assets. PPL asserted this was done in accordance with the terms of the agreement after prior notice. The McWilliams argued that the agreement had not been validly terminated and that the seizure of the goods was an illegal act, and that the defendants/respondents had conspired in respect of that illegal act. The McWilliams also argued that winding up proceedings brought by PPL were brought with the intention of frustrating injunction proceedings brought by ADM. Maconachie AJ entered judgment for each of the defendants/respondents. 8. The motion in so far as it claims security for costs is brought on 3 main bases: · the appellants have not been frank about where they reside and one of the appellants resides outside the jurisdiction; · the appellants are impecunious; and · the low prospects of the appeal.