Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Chen v State of New South Wales [2013] NSWCA 13 Hearing dates: 6 February 2013 Decision date: 06 February 2013 Before: Allsop P Decision: 1. Grant leave to file in court a summons for leave to appeal. 2. The appeal and the application for leave to appeal be heard concurrently. 3. The notice of motion dated 12 December 2012 concerning competency be stood over to the concurrent hearing of the appeal and leave to appeal. 4. Costs of the motion concerning competency be reserved to the appeal court. 5. The application for security for costs be dismissed with costs. 6. The applicants file submissions of no more than 5 pages concerning the question of the orders to be made by the appeal court if the appeal be successful. Catchwords: PRACTICE AND PROCEDURE - no question of principle Category: Procedural and other rulings Parties: Irene Rui Chen (First Appellant) Gong Xiang Xuan (Second Appellant) State of New South Wales (Respondent) Representation: C Evatt (First and second appellants) Wisdom Lawyers (First and second appellants) Makinson & d'Apice Lawyers (Respondent) File Number(s): 2012/286030 Decision under appeal Citation: Chen v State of NSW [2012] NSWDC 126 Date of Decision: 2012-08-17 00:00:00 Before: Johnstone DCJ File Number(s): DC 2011/54439 Judgment 1ALLSOP P: Before the Court is a notice of motion filed on 12 December 2012 challenging the competency of the appeal, seeking that it be dismissed and, in the alternative, seeking security for costs. The first aspect of the motion has been dealt with and is reflected in the transcript. I granted leave to the appellants to file in Court a summons seeking leave to appeal which will be heard concurrently with the appeal. If there be a need for leave, there is a summons on. If there be no need for leave, there is an appeal on. To the extent that the notice of motion for dismissal on the basis of incompetency is relevant to any aspect of the resolution of any issue of costs, it will be stood over to the concurrent hearing of those matters. It is to be noted, to the extent that it is relevant to costs, that the respondents filed their motion reasonably timeously. 2As to the question of security for costs, it is unnecessary to deal with individual authorities. There is undoubtedly a broad discretion in the Court in the interests of justice to control the ordering of security for costs on the appeal. Most of the cases on security for costs of appeals occur when the appellant, either a company or an individual, is insolvent. That is not put here. Indeed it is put that the appellants have access to assets. What is really put is that there is a sufficient ground to consider that these appellants may either leave the country or remove their assets from the reach of the respondents should they lose their appeal. 3It may be that the second appellant spends considerable time in Shanghai where I assume she has lived part of her life. The first appellant is an Australian citizen, and the second appellant is a Chinese national with permanent residency in Australia. There are, at least, bank accounts in this country. There is no evidence as to whether real estate is or is not held in this country. 4In my view, an inadequate basis has been shown for what would be in effect a Mareva injunction. On the evidence, these appellants are not impecunious. I would not conclude that they would not have sufficient assets to meet their responsibilities. If they lose the appeal and they do not pay the costs, the ordinary processes of debt collection including, if the appellants are ultimately unwilling and unable to pay their debts, bankruptcy, may run their course. In my view an inadequate basis has been put forward for special circumstances such as would justify a grant of security for costs. It is therefore unnecessary to deal with questions of stultification, but I should add that the subject matter of the appeal raises important questions of the treatment of people in and about custody. The primary judge's findings are clear as to those matters and those findings are favourable to the respondent. Nevertheless, I do not think it is appropriate in a case of this character, in the circumstances that obtain, to order security for costs in relation to the appeal. 5The appellant's written submissions are thirty-five pages. The rules provide for twenty pages. In the circumstances, I will grant leave for the thirtyfive pages on the basis that Mr Evatt says that what he was doing was combining his submissions with a narrative statement of facts. 6I would also note that Mr Evatt indicated today that he accepted that the appeal court would probably not be able to assess damages, although it might be able to enter a judgment for the appellants. Looking at the matter, it is probably the case that if the appeal succeeds, the order would be that there be a new trial. The resolution of that as a practical matter might be very important for the appeal court because it may both shorten and simplify the conduct of the appeal to know with precision what order is sought. In that connection, I direct the appellants to file submissions of no more than five pages as to the basis upon which they say that the Court would be in a position to order a judgment for the appellants if they were successful, as opposed to the appellants successfully identifying error in the primary judge, leading merely to the order for a new trial. 7Mr Neil QC has made complaint about the appellants' written submissions and what he says is their failure to identify the findings of fact challenged and, if there are findings of fact that should have been made, what those findings of fact are. The primary place where those matters should be found is the notice of appeal. There should be no doubt that if the facts are not challenged in the notice of appeal, the challenge to them does not form part of the appeal. 8I do not propose to have an extended directions hearing to resolve the difference of opinion of senior counsel as to the adequacy of submissions drafted by one of the senior counsel but I will make this suggestion, that in a fact rich appeal the Court would be greatly assisted by a careful identification of any finding of fact that might be challenged as part of broadly expressed paragraphs in the notice of appeal. To this end I would suggest - I will not make an order - that the appellants provide to the respondents, with a view to providing to the Court at the hearing, an annotated copy of the primary judge's reasons identifying any fact that is challenged, and identifying in the relevant place in the judgment any fact that it is said should have been found but was not found. 9As to the motion for security, the applicant on the motion, the respondent to the appeal, pay the costs of the respondents to the motion, the appellants on the appeal. As to the costs of the competency motion, I reserve those costs to the Court hearing the appeal. 10I therefore make the following orders: (1)Grant leave to file in court a summons for leave to appeal. (2)To the appeal and the application for leave to appeal be heard concurrently. (3)The notice of motion dated 12 December 2012 for competency be stood over to the concurrent hearing of the appeal and leave to appeal. (4)Costs of the motion concerning competency be reserved to the appeal court. (5)The application for security for costs be dismissed with costs. (6)The applicants file submissions of no more than 5 pages concerning the question of the orders to be made by the appeal court if the appeal be successful. 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: 14 February 2013