Tory v Megna

Judgment 1HIS HONOUR: This is a notice of motion seeking leave to withdraw a submitting appearance. The appeal involves a Supreme Court judgment against Messrs Marshall and Tory over a defamation of Mr Megna with respect to local government politics in the Drummoyne area. The applicant, Mr Richard Tory, is the third respondent in the appeal and the second cross-respondent in the cross-appeal, and I'll call him the applicant. The appellant, Mr David Marshall, who is the first cross-respondent in the cross-appeal does not oppose the application. This is understandable as they are really in the same interest. 2The application is opposed by the first and second respondents (the first and second cross-appellants), Messrs Michael Megna and Russell Lloyd, and I will refer to them as the respondents. In the event that leave is granted, the respondents seek certain conditions regarding security for costs and limitations on amendments to the notice of appeal and submissions. 3The applicant filed a submitting appearance on 8 July 2011. The appeal and cross-appeal were listed for hearing on 20 February 2012. In January 2012 the solicitors for Mr Marshall ceased to act and on 6 February, Mr Marshall and the applicant attended a directions hearing where the applicant advised the court he wishes to be represented. The directions hearing was adjourned by the Registrar to 10 February, a date which was subsequently vacated by the Court. The hearing date of 20 February was also vacated. The notice of motion seeking leave to withdraw the submitting appearance was filed on 22 February 2012. 4That motion first came before the Court on 27 February. Mr D Bricknell, solicitor, appeared for the applicant, Mr T Molomby QC with Mr Rasmussen, appeared for the respondents and Mr Marshall appeared in person. After some discussion I stood the matter over until today. The reason for the adjournment is that, after hearing initial submissions, it seemed to me that the probable just result was to allow the submitting appearance to be withdrawn if appropriate conditions could be imposed. Mr Molomby noted that there were three sets of conditions which needed to be imposed in his view, namely (A) that the appeal proceed only on the existing issues; (B) that the applicant pay the costs of andt occasioned by the change of position; and (C) that the applicant provide security for costs of the appeal. 5Mr Bricknell was without counsel and needed to consider these suggestions and I thought in the circumstances I should give him some time to do so. Thus, I requested Mr Molomby to put in writing precisely what he sought by way of conditions and stood the matter over for Mr Bricknell to consider his client's attitude to them and hopefully to be able to secure counsel, that is the counsel who has been in the matter for some time previously and who expected to be available today. 6Mr Molomby submitted a document containing the conditions he sought in final form and these were as follows: