New South Wales Court of Appeal CITATION: Snedden v Nationwide News Pty Limited (No 2) [2010] NSWCA 117 HEARING DATE(S): 24 May 2010 JUDGMENT DATE: 24 May 2010 JUDGMENT OF: Hodgson JA EX TEMPORE JUDGMENT DATE: 24 May 2010 1. I order that the appellant within 28 days provide security to the satisfaction of the Registrar for the costs of the appeal in the sum of $40,000; DECISION: 2. I order that the appeal be stayed until such security is provided; 3. I order that the appellant pay the respondent's costs of the notice of motion; 4. In relation to a second notice of motion brought for security for costs, I dismiss that notice of motion and vacate any return date that has been allocated for it. CATCHWORDS: PRACTICE – Appeal – Application for security for costs – Whether special circumstances shown. LEGISLATION CITED: UCPR 51.50 CATEGORY: Procedural and other rulings CASES CITED: Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136 PARTIES: Daniel SNEDDEN (respondent/ appellant) NATIONWIDE NEWS PTY LIMITED (applicant/ respondent) FILE NUMBER(S): CA 2005/269455 COUNSEL: T D BLACKBURN SC/ J HMELNITSKY (applicant (Nationwide)) C EVATT/ R RASMUSSEN (respondent (Snedden)) SOLICITORS: Blake Dawson (applicant (Nationwide)) D C Legal Pty Ltd (respondent (Snedden)) LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): 20389/2005 LOWER COURT JUDICIAL OFFICER: Latham J LOWER COURT DATE OF DECISION: 18 December 2009 LOWER COURT MEDIUM NEUTRAL CITATION: Snedden v nationwide News [2009] NSWSC 1446 - 3 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2005/269455 HODGSON JA Monday 24 MAY 2010 Daniel SNEDDEN v NATIONWIDE NEWS PTY LIMITED Judgment 1 HIS HONOUR: On 3 May 2010 I gave a judgment on the present notice of motion, in which I gave reasons for staying this appeal and ordering its dismissal unless the appellant ceased to be evading lawful custody by 5 July 2010. The appellant has now been arrested, and the notice of motion has come back before me to consider whether security for costs should be ordered. 2 The respondent seeks security for costs at first instance as well as for the costs of the appeal. I should say at once that I see no basis on which I could properly order security for costs at first instance. 3 As regards the costs of the appeal, Mr Blackburn SC for the respondent submitted that there are special circumstances within UCPR 51.50. The appellant, through his counsel, says he has no assets beyond a bank account with less than $100 in it, so that the respondent has little chance of obtaining from the appellant either the costs at first instance or the costs of the appeal, should the appeal be unsuccessful. 4 Mr Blackburn accepted that impecuniosity was not of itself enough to constitute special circumstances, and he referred to Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136. But he submitted that there were special circumstances in this case, because in addition to the appellant's inability to pay costs the appellant had shown willingness to abandon the appeal, provided he could avoid lawful custody and avoid extradition to Croatia, and was likely to treat orders for costs with contempt. 5 Mr Evatt, for the appellant, submitted that these did not amount to special circumstances, and that the conduct of the appellant was explained by his concern not to be tried in Croatia. He submitted that as a matter of discretion the Court should not order security, because the appeal was bona fide and reasonably arguable, the appellant's impecuniosity had been caused by the conduct of the respondent, and to order security for costs would stultify the proceedings. 6 I accept that the appellant has reasonably arguable grounds of appeal and I have no reason to doubt that his appeal is bona fide. 7 However, I do not think the appellant's impecuniosity can, in a substantial sense, be said to have been caused by the respondent's conduct. It is true that the respondent's article, which was the basis for the defamation proceedings, appeared on 8 September 2005, and it appears that the decision on conducting an investigation by a County Court in Croatia was dated 12 December 2005; but there is no reason to think that the decision by the Croatian authorities to seek extradition was other than a decision made in Croatia on the basis of material provided by people in Croatia. Even if it was the respondent's article that alerted Croatian authorities to the presence of the appellant in Australia, and even if it also alerted them to allegations against him, there is no basis for considering that the decision itself was grounded on the article rather than on other material that these authorities considered sufficient to justify the request for extradition. 8 As regards stultification of the proceedings, there is no positive evidence to support that, apart from the respondent's own assertion of his lack of assets. There is evidence that a yacht was purchased by Mr Bruce, apparently an associate of the appellant, for $40,000, that the appellant was, prior to his rearrest, living in and repairing that yacht, and that the appellant was planning to use that yacht to sail north in furtherance of his purpose of avoiding lawful custody. In all these circumstances I am not satisfied that ordering security for costs of the order of $40,000 would stultify the appeal. 9 I consider that the respondent's lack of assets accessible to the appellant, together with the respondent's willingness to abandon the appeal in order to escape extradition and to evade lawful custody, does amount to special circumstances, particularly when combined with the further factor that the respondent has already spent $1.22 million in legal costs at first instance, probably assessable at more than $700,000, no part of which it is likely to recover if the appeal is unsuccessful. The respondent's appeal costs are estimated at about $70,000, probably assessable at more than about $42,000. 10 In all the circumstances, in my opinion, the appropriate exercise of discretion is to order security for costs of the appeal of $40,000. I make the following orders: 1. I order that the appellant within 28 days provide security to the satisfaction of the Registrar for the costs of the appeal in the sum of $40,000; 2. I order that the appeal be stayed until such security is provided; 3. I order that the appellant pay the respondent's costs of the notice of motion; 4. In relation to a second notice of motion brought for security for costs, I dismiss that notice of motion and vacate any return date that has been allocated for it. oOo 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.