DALTON & ANOR v TCN CHANNEL NINE PTY LIMITED & ORS [2009] NSWSC 492

New South Wales Supreme Court

CITATION : DALTON & ANOR v TCN CHANNEL NINE PTY LIMITED & ORS [2009] NSWSC 492

HEARING DATE(S) : Wednesday 3 June 2009

JUDGMENT DATE : 3 June 2009

JURISDICTION : Common Law

JUDGMENT OF : Hall J at 1

EX TEMPORE JUDGMENT DATE : 3 June 2009

DECISION : Notice of motion filed on 22 December 2008 is dismissed. The plaintiffs are to pay the costs of the application.

CATCHWORDS : PROCEDURE - costs - security for costs

LEGISLATION CITED : Evidence Act 1995 Supreme Court Act 1970

Aopi v Rapke [2002] NSWCA 711 Chellaran v China Ocean Shipping (1991) 102 ALR 321 Comalco Aluminium Limited v Ohtsu Tyre & Rubber Co Aust Limited (1983) 8 ACLR 330 CASES CITED : Ezzo v Grille [2003] NSWSC 776 In the Will of Sheppard [1972] 2 NSWLR 714 Readymix Holdings International Pty Limited v Wyeland Process Equipment Pty Limited [2008] FCA 373 Tomko v Palasty (No 2) [2007] NSWCA 369

PARTIES : Allyson DALTON & ANOR v TCN CHANNEL NINE PTY LIMITED & ORS

FILE NUMBER(S) : SC No 20387 of 2008

COUNSEL : P: S M Littlemore QC/S T Chrysanthou D: B R McClintock SC/M Richardson

SOLICITORS : P: Kalantzis Lawyers D: Johnson, Winter, Slattery

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HALL J

WEDNESDAY 3 JUNE 2009

No 20387 of 2008

ALLYSON DALTON & ANOR v TCN CHANNEL NINE PTY LIMITED & ORS

JUDGMENT

1 HIS HONOUR: The plaintiffs, Allyson Dalton and Richard Neely, commenced proceedings by way of statement of claim filed on 3 September 2008. The proceedings concern an allegedly defamatory broadcast of and concerning the plaintiffs published in an episode of the television programme "A Current Affair" on 9 July 2008. 2 The plaintiffs filed an amended statement of claim on 22 October 2008. Prior to doing so, on 15 October 2008, the defendants notified the plaintiffs they the sought an order for security for costs. Correspondence and directions subsequently took place. 3 On 24 November 2008, the defendants filed a notice of motion seeking an order for security for costs in the amount of $385,000 pursuant to UCPR 42.41. 4 The affidavit of evidence in relation to the notice of motion consisted of an affidavit of Vasilios Kalantzis, solicitor, sworn 1 December 2008 and an affidavit on behalf of the defendants of Paul Svilans, solicitor, sworn 24 November 2008. 5 The notice of motion was heard by Registrar Atkinson on 9 December 2008, and on 12 December 2008, the Registrar made the following orders as follows:- "1. The plaintiffs are to provide security for costs of $350,000 as follows:- (a) $25,000 is to be paid in to Court on or before 12 January 2009; (b) $35,000 is to be paid in to Court on or before 12 March 2009; (c) $90,000 is to be paid in to Court within 28 days of the allocation of a hearing date for trial of the proceedings; (d) $200,000 is to be paid in to Court no later than 28 days prior to the date fixed for commencement for trial of the proceedings. 2. If the plaintiffs fail to make any payments in accordance with the order for security for costs, the plaintiffs cannot take any further steps in the proceedings without leave of the Court. 3. The plaintiffs are to pay the defendants' costs of the motion as agreed or assessed." 6 On 22 December 2008, the plaintiffs filed a notice of motion in which, inter alia, an order was sought that the judgment and orders of Registrar Atkinson made on 12 December 2008 be reviewed and set aside. 7 On this application, the plaintiffs sought to rely upon additional evidence to that which was before the Registrar, namely, the affidavit of Vasilios Kalantzis sworn 15 May 2009 to which I will shortly refer. The plaintiffs also relied, on this application, on his affidavit sworn 1 December 2008. 8 An extract of transcript of proceedings before the Registrar was tendered and became Exhibit 1. In these proceedings, that exhibit became Exhibit A in these proceedings, being a letter from the Nine Network dated 18 June 2008.