PRESTON v HARBOUR PACIFIC UNDERWRITING MANAGEMENT PTY LTD [2007] NSWCA 247 | Case summary

14 September 2007 Alexander PRESTON v HARBOUR PACIFIC UNDERWRITING MANAGEMENT PTY LTD & ORS Judgment 1 IPP JA: I agree with what Basten JA has stated in [2], [3] and [10] to [39] of his reasons. I express no view as to the matters raised in [4] to [9]. I agree with the orders his Honour proposes. 2 BASTEN JA: Mr Alexander Preston (the Appellant) brought proceedings for defamation against Harbour Pacific Underwriting Management Pty Ltd and five other defendants. The alleged slander involved a statement made by one of the defendants, Mr Michael Maher, who was involved in the investigation of fire and water damage which occurred at premises occupied by a company run by the Appellant. 3 The Appellant was unsuccessful at trial, a jury finding that the defamatory statements were not made. From that finding and the subsequent judgment in favour of the defendants, the Appellant appealed to this Court. However, the defendants (now Respondents) sought that the Appellant provide security for costs. On 31 May 2007 Registrar Schell ordered that the Appellant provide security in an amount of $20,000 each in respect of the costs of the First, Second and Third Respondents. The present matter is a challenge to the orders made by the Registrar. Nature of jurisdiction 4 The first question concerns the nature of the challenge brought from the Registrar to this Court. There are two contending positions which affect the nature of the jurisdiction. The first is that the Court is exercising the power to "discharge or vary" a judgment given by a judge of appeal, pursuant to s 46(4) of the Supreme Court Act 1970 (NSW). That is said to follow from the fact that an order for security for costs is itself an order which may be made by a judge of appeal pursuant to s 46(1) or (2) and accordingly is a power which may be exercised by the registrar pursuant to Supreme Court Rules 1970 (NSW), Part 51, r 58. There are two consequences which flow from this approach: first, a challenge to the decision of a registrar can only be heard by a court constituted by three judges and not by a single judge. The second consequence is that, in accordance with the principles established in Wentworth v Wentworth (1994) 35 NSWLR 726, the nature of the review is restricted at least by the principles in House v The King (1936) 55 CLR 499 (relating to appeals from the exercise of a discretionary power) and Re Will of Gilbert (1946) 46 SR(NSW) 318 (dealing with appeals from decisions relating to practice or procedure): at 733 (Handley JA); see also Mahoney JA at 730B-731C and Powell JA at 736-737. (See also Patrick v Howorth [2002] NSWCA 285 at [10] (Heydon JA, Hodgson JA and Young CJ in Eq agreeing.) 5 The alternative construction is that the application is to "review" the exercise of discretion by the registrar, which entails a fresh consideration by this Court, of a kind sometimes referred to as a "hearing de novo". The basis for this approach is more complex. Historically, prior to the amendments made upon the introduction of the Uniform Civil Procedure Rules 2005 (NSW), the Supreme Court Rules 1970 (NSW) dealt in Part 61 with the powers of a registrar, providing that an order or decision of a registrar may be the subject of "review" by the Court: Pt 61 r 3. Pursuant to r 4, such a power in respect of the registrar of the Court of Appeal was then exercised by a judge of appeal. Accordingly, the decision of the judge may be subject to a further application for variation or discharge, pursuant to s 46(4), whereas his or her powers of review were to be found in Part 61, r 3. That appears to have been the approach adopted by Santow JA in Wentworth v Graham (2002) 55 NSWLR 638 at 641. Nevertheless, there is a degree of inconsistency between that approach and the earlier judgment of the Court in Strata Consolidated (Australia) Pty Ltd v Bradshaw [2000] NSWCA 225, a judgment given by Heydon JA (Sheller and Beazley JJA agreeing) holding that because the registrar was exercising the powers of a single judge, an application to review his decision was made pursuant to s 46(4) of the Act. On that approach, presumably only a three member bench could review the decision of the registrar. Nevertheless, Sheller JA, who had been a member of the Court in Strata Consolidated, was content to review a registrar's decision, sitting alone, in Emmett v Hornsby Shire Council [2002] NSWCA 75. His Honour noted the power to review under Part 61, r 3, at [6], which he proceeded to exercise, without further consideration of the jurisdiction. 6 Since those cases were decided, Part 61, r 3 has been repealed, with effect from 15 August 2005. The power to review a decision of a registrar is now to be found in UCPR 49.19, although, in relation to a registrar of the Court of Appeal, Part 61, r 4 is still extant. In Penrith Whitewater Stadium Ltd v Lesvos Enterprises Pty Ltd [2007] NSWCA 131 at [2]-[9] I discussed the relevant authorities, although not Strata Consolidated. I expressed doubt as to whether I had the power, sitting alone, to review the decision of the registrar. Those doubts might be confirmed by reference to Strata Consolidated. 7 If the position of the registrar is to be equated with that of a single judge for the purposes of review of any decision of the registrar, it is difficult to see how such a review could be undertaken otherwise than by a three member bench of the Court. If that were the case, Part 61, r 4 would appear to follow from a false premise as to the operation of the Act and thus to be invalid. That was not suggested. Further, the logic of Strata Consolidated may be open to challenge. Because the powers of the registrar are identified as those which a single judge of the Court may exercise under s 46(1) and (2), it does not follow that the power to review the registrar's decision is the same as that with respect to a decision actually made by a single judge. 8 There are other problems, including a constitutional argument which has been raised in other proceedings pending in this Court. Because many security for costs applications involve corporations, and the application of s 1335 of the Corporations Act 2001 (Cth), the Court is in such cases exercising federal jurisdiction. Although the point has been fully considered only in relation to registrars of the Federal Court, there is an available argument that the registrar of a State court may exercise judicial power of the Commonwealth only subject to a satisfactory level of review or appeal: see Harris v Caladine (1991) 172 CLR 84 at 195 (Mason CJ and Deane J). As a matter of construction, it may be appropriate to favour a broader, rather than a more constrained, view of the right to review or appeal decisions of a registrar, so as to ensure constitutional validity when the Court is exercising federal jurisdiction. Although that is not this case, it is appropriate, in the case of vagueness or ambiguity, to adopt a construction which will apply uniformly between State and federal jurisdiction. 9 As in Penrith Whitewater Stadium, these questions were not fully agitated in this case. Further, there was no application to reconsider Strata Consolidated. Because, as will appear below, the Appellant must fail on even the broadest view of the Court's powers, it is not necessary to resolve these questions in the present case. Merit of application: appeal from jury verdict 10 It is convenient to review the order of the Registrar on the view most favourable to the Appellant, namely that he is entitled to a fresh consideration by this Court of the exercise of power to grant security for costs, without finally determining whether that approach is correct in law. 11 This exercise requires consideration of the nature of the appeal in relation to the substantive claim and the new material upon which primary reliance is placed. However, that exercise cannot be properly undertaken without addressing the nature of the appeal itself, a course which none of the parties undertook until invited to do so by the Court. 12 Because the appeal arises from a trial with a jury in this Court, it is not an appeal by way of rehearing pursuant to s 75A of the Supreme Court Act: see s 75A(2). Rather, the appeal is brought pursuant to s 102 of the Supreme Court Act. The power to grant a new trial will be subject to the demonstration of a "substantial wrong or miscarriage" for the purposes of Part 51, r 23. In substance, the ground relied upon in the present case was the discovery of new material. 13 Much of the modern caselaw in this jurisdiction in relation to new material depends upon the operation of s 75A. However, care must be taken in applying those authorities for the purposes of an appeal under s 106. That is because "further evidence" may be adduced pursuant to s 75A(8) even though it is not "fresh evidence", in the sense that it was neither available to the party seeking to call it at the time of the trial, nor should it have been available by the use of reasonable diligence on the part of that party. On the other hand, the evidence may only be received "on special grounds". 14 This is not a case in which error was alleged in relation to the conduct of the trial. The grounds of appeal are entirely concerned with the fresh further evidence, which the Appellant says he has now obtained. Before the universal rule requiring the establishment of a substantial miscarriage of justice, in order to justify the setting aside of a verdict and the ordering of a retrial, a clear distinction developed between those cases in which error of law had been demonstrated and those in which there were "applications for a new trial on the ground that the verdict was against the weight of the evidence or because of discovery of fresh evidence or because the judge's summing-up was, in relation to the facts, insufficient" - in which cases the demonstration of a miscarriage had always been required: see Balenzuela v De Gail (1959) 101 CLR 226 at 243-244 (Windeyer J). (The history of the civil, as well as the criminal, practice in this regard is to be found in Conway v The Queen (2002) 209 CLR 203 at [5]-[29] (Gaudron ACJ, McHugh, Hayne and Callinan JJ). 15 In relation to fresh evidence, discovered after the trial, the basic principle remains that identified by Dixon CJ (with whom Williams, Webb, Kitto and Taylor JJ agreed) in Wollongong Corporation v Cowan (1955) 93 CLR 435 at 444: "If cases are put aside where a trial has miscarried through misdirection, misreception of evidence, wrongful rejection of evidence or other error and if cases of surprise, malpractice or fraud are put on one side, it is essential to give effect to the rule that the verdict, regularly obtained, must not be disturbed without some insistent demand of justice. The discovery of fresh evidence in such circumstances could rarely, if ever, be a ground for a new trial unless certain well-known conditions are fulfilled. It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial." 16 Wollongong Corporation was treated by the joint judgment in CDJ v VAJ (1998) 197 CLR 172 at [89] as an authoritative statement of the general law principles. Their Honours noted that some flexibility was allowed to accord with "the overriding purpose of reconciling the demands of justice with the policy in the public interest of bringing suits to a final end": McHugh, Gummow and Callinan JJ at [105] quoting McCann v Parsons (1954) 93 CLR 418 at 430-431 (Dixon CJ, Fullagar, Kitto and Taylor JJ). Although Wollongong Corporation was not applied as determinative of a statutory scheme of appeals by way of rehearing under the Family Law Act 1975 (Cth), no doubt was cast on their application under the general law. The source of appeal in the present case is found in the Supreme Court Act, but there is no reason to doubt that the general law principles properly apply, in the absence of language in the statute suggesting otherwise. Requirement of "special circumstances" 17 The Registrar accepted that "special circumstances" were required, pursuant to Part 51, r 16, if the Court were to order security for costs. He found such special circumstances on the basis of a number of submissions by the Respondents, but primarily, it would appear, on the basis that the appeal lacked sufficient prospects of success. It was accepted that the Appellant's impecuniosity, and the failure to pay outstanding costs orders, would not by themselves create special circumstances, but might indeed militate against an order for security if such an order would effectively stifle the Appellant's right to pursue a bona fide and arguable appeal. On the other hand, the fact that the Respondents would incur costs which would probably be unrecoverable, in addition to costs already incurred, was also a relevant consideration which justified the Court undertaking some assessment of the prospects of the appeal. 18 The principles governing applications for security were helpfully set out by Beazley J in the Federal Court in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 197-198. Although the factors are discussed in the context of an unfettered discretion, in contrast to the power conferred by Pt 51 r 16, the factors themselves remain relevant in assessing special circumstances. The considerations engaged by the concept of "special circumstances" in relation to security for costs were considered by this Court in Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143 (Beazley, Santow and Ipp JJA), and in Porter v Gordian Runoff Ltd [2004] NSWCA 171 (Bryson JA, Sheller and Giles JJA agreeing). The following principles were identified:

(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. 19 Some of these factors, particularly the last two, may better be seen as influencing the exercise of the discretion, rather than as potential "special circumstances", engaging the power. 20 Although it was no doubt true in the present case that there had been significant costs incurred, both as a result of the trial and extended pre-trial processes, the Registrar did not expressly find that the appeal was brought otherwise than in a genuine or bona fide attempt to pursue the Appellant's claim, nor that it constituted a form of harassment, in the sense of some form of inappropriate or improper purpose. That would appear to be the obverse of a genuine or bona fide appeal. On the material before this Court, no finding should be made that the appeal was other than a genuine and bona fide pursuit of the Appellant's rights. On the other hand, and relevantly to the exercise of the power if engaged, there is no particular public interest involved in the present proceedings, nor is there an issue as to the liberty of the individual. The subject matter of the dispute is no doubt of great concern to the Appellant, but it is a personal interest deriving from the operation of a business. 21 The reference to an appeal which is shown to be "hopeless" is taken from the judgment of Sheller JA in Saba v National Australia Bank Ltd [1999] NSWCA 93 at [12]. For present purposes, that may be taken to mean an appeal which is shown to lack reasonable prospects of success or not to be reasonably arguable. In most cases, it will appear from a reading of the judgment below and the notice of appeal that the appeal is reasonably arguable. In such cases the Court will not be required to engage upon an extensive consideration of the merits. In other cases, where the error is not obvious, perhaps because the notice of appeal is not professionally drafted, some further inquiry may be necessary. 22 The present case was one in which it was necessary to consider aspects of the case as presented at trial in order to appreciate the significance of the grounds of appeal. Prospects of success on appeal 23 The amended notice of appeal dated 5 February 2007 contains three grounds, each of which is based upon the discovery of new information which is said to justify a new trial. 24 The background to the defamation proceedings commenced with a fire in August 1997, followed by a later discharge of water from a fire sprinkler, which between them appear to have caused substantial damage at premises occupied by the Appellant's company, Australian Picasso Collections Pty Ltd. The company made a claim under an insurance policy. The insurer employed Michael Maher Associates Pty Ltd and through that company its principal, Mr Michael Maher, to investigate the circumstances of the claim. 25 At the same time, the Appellant had a financial relationship with a Mr Barry Short who was the principal of Elizabeth Street Finance Pty Ltd. In an affidavit filed in these proceedings, the Appellant described Elizabeth Street Finance as "my major creditor and the effective financier of Australian Picasso". 26 During the course of his investigation, Mr Maher had a telephone conversation with Mr Short. There was a dispute as to the date of the telephone conversation, Mr Maher placing it on 24 September 1997 and Mr Short in early 1998. The real dispute, however, was as to the content of the conversation, which was said to constitute the slander upon which the Appellant sued Mr Maher. The content was left to the jury to determine as question 1 of a number of questions, in the following terms: "1. Has the plaintiff, Mr Alex Preston, established that, during a telephone conversation between the Sixth Defendant, Michael Maher, and Mr Barry Short, Mr Maher said words to the following effect or words which do not differ in substance from them: Mr Maher identified himself as Michael Maher, an insurance investigator and said, 'I represent an insurance company and I would like to ask you a few questions about Mr Preston - do you know Mr Preston?' 'Did you know that he had a fire and sprinkler damage at his premises at Ultimo?' 'We believe that he was involved in the sprinkler damage and that he made a fraudulent claim to the insurance company which I represent.' Mr Maher said that he was advising people who were somehow involved with Mr Preston about the circumstances of that. 'Of course you know he is a gambler and he lost all his money at the casino.' 'Of course you know Mr Preston's company has gone into liquidation.' 'I would like to come over and see you face to face to discuss the matter further.' Mr Maher mentioned that he was only getting in touch with people like myself telling him of the circumstances that were involved with the fire and sprinkler damage and their concerns with Mr Preston's lodging a fraudulent claim. 'Of course you realise that litigation is very expensive and that you know that you could be, I would suggest that you don't, don't finance Mr Preston any further.'" 27 The jury was asked a second question, namely whether the conversation took place in September 1997 or March 1998, or some other date but, as they answered the first question "no", they did not reach the second question. A further series of questions concerning the imputations and whether they were defamatory were also not answered. 28 At trial, Mr Barry Short gave evidence which supported the plaintiff's claim; Mr Maher denied making such statements. Mr Short had some support from a Mr Smith, a solicitor who had been present at the time the conversation took place. It is clear from the answer given by the jury that they did not accept Mr Short's evidence, preferring that of Mr Maher, or at least finding that they could not be affirmatively satisfied on the balance of probabilities that the conversation included the statements asserted by Mr Short. 29 On 12 December 1997, Mr Maher completed a report of his investigation into the insurance claim, which was addressed to the solicitors for the insurer. In the course of his cross-examination on 2 February 2006 in the defamation proceedings, Mr Maher was asked whether he had given a copy of his report to any person other than the solicitors. He said that he may have given it to the police, but did not give it to Mr Short or to the liquidator of Australian Picasso Collections: p 312. As a result of a conversation with Mr Short immediately after the trial, the Appellant and Mr Short were able to establish that the handwriting on a copy of the report was Mr Short's, indicating that he had had a copy in his possession. The words he had written on the first page of the report were "sent to liquidator". 30 This new discovery was said to cast doubt on the evidence given by Mr Maher at trial and indeed to contradict the answer given by him in cross-examination as to whether he had sent a copy of his report to Mr Short. This in turn, it was suggested, would cast doubt on his credibility and hence would, if called at trial, have at least diminished the willingness of the jury to prefer Mr Maher's evidence over that of Mr Short. 31 Because both Mr Maher and Mr Short agreed that a conversation, but only one conversation, had taken place between them, it may be assumed that the jury so found, although it is not clear what date they may have placed on the conversation, if any. That causes difficulties for the Appellant in seeking to establish the significance of the documentary material having been sent to Mr Short. By mid-December 1997, the report shows that Mr Maher undoubtedly harboured suspicions that the insurance claim may have been fraudulent. If Mr Maher had had a conversation with Mr Short at that time, or shortly thereafter, then it would be open to infer that the purpose of the conversation and the purpose of sending the report were the same, namely to persuade Mr Short not to continue to support the Appellant and his businesses financially. However, if the conversation with Mr Short took place, as alleged by Mr Maher on 24 September 1997, some two and a half months before the preparation of the report, that inference would be far weaker. 32 The actual timing of events was far from clear on the evidence as left to the jury. It is highly unlikely that Mr Maher sent copies of documents to Mr Short without prior notice. That means they would have been sent after the telephone conversation. They could not have been sent before late December 1997, after the preparation of Mr Maher's report. Indeed, in a statutory declaration provided to the liquidator of Australian Picasso Collections, dated 15 April 1998, Mr Short noted that he had received a phone call from Mr Maher and had received a bundle of documents relating to Australian Picasso Collections and Mr Alexander Preston. He confirmed that he had sent the documents to the liquidator. 33 The possible effect of the information may be considered in the context of the key issues at the trial, as identified by counsel in the course of submissions to this Court. Quite apart from the challenge now sought to be mounted to the credit of Mr Maher, a very substantial challenge was mounted at trial to the credit of Mr Short. He was able to support his account of the telephone conversation, which had occurred at least eight years before the trial, with a brief undated note in the following terms (Ex D1D): "Michael Maher insurance investigator Called inquiring Alex Involvement regarding fire Gambler lost monies Company in liquidation Faxing document re gambling - no Costs of litigation risk to be involved." 34 Australian Picasso Collections went into liquidation on or about 16 December 1997, which indicated that the conversation was held at some stage thereafter. That was clearly inconsistent with the dates given by Mr Maher which, if accepted, would have cast doubt upon the whole of Mr Short's evidence. Further, Mr Short was cross-examined at some length as to the circumstances in which the note was made and the importance to him of the items recorded from the conversation. For example, the note suggested that he was not concerned about Mr Preston's possible gambling losses, a fact which he confirmed in cross-examination: Tcpt, 01/02/06, pp 195-196. He also confirmed that he was well aware by the time of the conversation that the company was in liquidation. Apart from those matters, the crux of the complaint in relation to the content of the conversation was the allegation, repeated at least once, that Mr Preston had made a "fraudulent claim" on the company's insurer. There was, however, no reference to that matter in the note of the conversation kept by Mr Short: see Tcpt, 01/02/06, pp 189-190. 35 There is no doubt that evidence that Mr Maher did send Mr Short a copy of his report would have been a matter which could properly have been used in cross-examination of Mr Maher and, depending upon his answers, a matter which might have proved useful in presenting the case to the jury. That was no doubt recognised at trial by counsel for Mr Preston when he put to Mr Maher the question which it is said was wrongly answered. How much weight it could have borne is a matter for speculation, given the jury's negative answer to the first question as to publication. However, the fact that counsel recognised the potential significance of the question, combined with the fact that Mr Preston was able to show Mr Short the document which led to the new information, immediately after the trial, demonstrates that the information could have been obtained at an earlier stage. Accordingly, the information now available could not properly be described as "fresh evidence" in order to satisfy that aspect of the test laid down in Wollongong Corporation v Cowan: see [15] above. 36 Furthermore, even if it were fresh evidence and had been adduced at the trial, it could not be said with any confidence that it would have produced an opposite result, let alone that such a result was so likely as to make the contrary view unreasonable: see Wollongong Corporation at [15] above. In those circumstances, it cannot be said that the appeal has any real prospect of success. 37 That conclusion not only provides a special circumstance warranting an order for security for costs, in circumstances where it is unlikely that the Appellant will be able to meet the costs of the Respondents if he is unsuccessful, but it also removes the concern that such an order might, in the circumstances of his impecuniosity, stifle a genuine and arguable appeal. That concern diminishes to a point where it loses significance, given the lack of substance to the appeal. Conclusion 38 For these reasons, the Appellant has failed to demonstrate a basis for interfering with the orders of the Registrar. Even if this Court is entitled and required to reconsider the application afresh, the Court would not make different orders. 39 Accordingly, the Appellant's motion dated 25 June 2007, seeking to review the orders of the Registrar made on 31 May 2007 should be refused with costs. 40 HOEBEN J: I agree with Basten JA. **********

PRESTON v HARBOUR PACIFIC UNDERWRITING MANAGEMENT PTY LTD

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