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Benjamin v GB Franchising Australia Pty Ltd [2008] ACTCA 11

Body Bronze International v Fehcorp Pty Ltd [2010] VSCA 72

Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497

Churchills Limited v Pilcher (1940) 57 WN (NSW) 109

de Groot v Nominal Defendant [2004] NSWCA

Donnelly v Ross Mining NL [1999] NSWLEC 76

Fletcher v Federal Commissioner of Taxation (1992) 110 ALR 233

Hughes v Janrule Pty Ltd [2010] ACTSC 5

In the matter of an application for bail by Isa Islam [2010] ACTSC 147

Kennedy v McGeechan [1978] 1 NSWLR 315

Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377

Mastronardi v State of NSW [2007] NSWCA 54

Monie v Commonwealth of Australia [2005] NSWCA 25

Mt Nathan Landowners P/L (in liq) v Morris & Ors [2008] QCA 409

NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80 ALJR 367

Porter v Gordian Runoff Ltd [2004] NSWCA 69

Roads and Traffic Authority of New South Wales v Dederer (2007) 238 ALR 761

Transglobal Capital Pty Ltd v Yolarno [2004] NSWCA 136

Uptown Sydney Development Corporation Pty Ltd v Bank of New Zealand (No 1) (1993) 11 ACSR 300

Wilkinson v Law Courts Ltd [2001] NSWCA 196

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 7-2010

No. SC 261 of 2006

Judge: Penfold J

Court of Appeal of the Australian Capital Territory

Date: 9 August 2011

IN THE SUPREME COURT OF THE ) No. ACTCA 7-2010

AUSTRALIAN CAPITAL TERRITORY ) No. SC 261 of 2006

COURT OF APPEAL )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: PAUL JOHN HUGHES

Appellant

AND: JANRULE PTY LTD

Respondent

ORDER

Judge: Penfold J

Date: 9 August 2011

Place: Canberra

THE COURT ORDERS THAT:

1. The application for security for costs is refused.

IN THE SUPREME COURT OF THE ) No. ACTCA 7-2010

AUSTRALIAN CAPITAL TERRITORY ) No. SC 261 of 2006

COURT OF APPEAL )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: PAUL JOHN HUGHES

Appellant

AND: JANRULE PTY LTD

Respondent

REASONS FOR JUDGMENT

Summary

2. In this judgment I have found: (a) that the Court of Appeal has all procedural powers necessary for it to manage appeals within its jurisdiction (at [16]-[29] below); (b) that the power of the Court of Appeal to order security for the costs of an appeal may be exercised by a single Judge (at [30]-[62] below); (c) that there is no need for an applicant for security for costs to demonstrate special circumstances before security for the costs of an appeal is ordered, but that in relation to appeals by unsuccessful plaintiffs in personal injury actions, the “common situation” that the plaintiff is impecunious, that the appeal is a difficult one on the facts, and that the costs may be high, is not of itself grounds for ordering the plaintiff/appellant to provide security for costs (at [73]-[78] below); (d) that lawyers acting for a plaintiff or appellant would not fit the description of “the people standing behind the proceeding” (Court Procedures Rules 2006 (ACT) (CPRs), r 1902(1)(a)) merely because they are acting on a no-win no-fee basis (at [151]-[161] below); (e) that lawyers acting for an impecunious individual (especially in personal injury litigation and even when acting on a no-win no-fee basis) should not in the normal course of events be seen as a possible source of financial support for that individual in the way that shareholders or secured creditors may be a possible source of such support for an impecunious corporation (at [162]-[165] below); and (f) that the fact that an appellant is being represented on a no-win no-fee basis is not of itself a ground for ordering security for costs (at [166]-[170] below).

3. I have also noted that if, in the case of an impecunious appellant, a difficult appeal and no-win no-fee representation, it is likely that even a successful appeal will provide no benefit to the appellant because of his or her liability for solicitor and client costs, it may be arguable that such an appeal is being brought “for the benefit of someone else” (CPRs, r 1901(b)) so as to justify an order for security for costs to be provided (at [177]-[180] below). However, no such argument was made in this case, and I am not satisfied that “the justice of the case” (r 1901(h)) requires such an order to be made in this case. Introduction Appeal from the Master’s judgment

4. On 5 February 2010, Master Harper handed down his judgment in the case of Hughes v Janrule Pty Ltd [2010] ACTSC 5. He rejected the plaintiff’s claim for damages for injury suffered as a result of a workplace accident in February 2006, less than two weeks after the plaintiff began working for the defendant, on the basis that the defendant had not breached its duty of care to the plaintiff (at [108]). The Master indicated, however, that if he had found in the plaintiff’s favour he would have awarded damages of just over $193,000.

5. A notice of appeal to the Court of Appeal was filed by the unsuccessful plaintiff, within time, on 3 March 2010. It listed 15 grounds of appeal, covering a hotchpotch of challenges marked among other things by the complete absence of any kind of ordering or grouping of the stated grounds. Those grounds include challenges to his Honour’s treatment of the evidence and his assessment of witnesses, a claim that the decision “is against the weight of evidence”, and an assortment of claims to the effect that the Master’s decision was affected by the delay in handing down his judgment. The defendant on 19 March 2010 indicated an intention to respond. Application for security for costs

6. On 23 April 2010, the respondent to the appeal filed an application for security for costs and a stay of proceedings until that security was provided. The claim was for an initial order for security for costs of $30,000, but the respondent also sought leave to seek additional security for costs at any stage.

7. The plaintiff in the original action, Mr Hughes, is the appellant in the appeal and the respondent to the current application. The defendant in the original action, Janrule Pty Limited, is the respondent to the appeal but the applicant in the current application. Since the status of the parties as appellant and respondent in the appeal is of most significance in determining the application, I propose from now on to refer to Mr Hughes as the appellant and to Janrule Pty Ltd as the respondent.

8. The matter was listed before me on 19 May 2010. The application and notice of the hearing date were served on the appellant on 4 May 2010. On the morning of 19 May, the appellant appeared by counsel, who indicated: (a) that counsel who had appeared at the trial was unavailable because he had a medical appointment that morning; and (b) that he (the new counsel) had been briefed only the day before and instructed to seek an adjournment.

9. I adjourned the matter until the afternoon in order to deal with another Court of Appeal application that was ready to proceed. When the hearing resumed that afternoon, the appellant was represented by his solicitor.

10. Counsel for the respondent made oral submissions supplementing his written submissions. A jurisdictional issue dealt with below emerged during those submissions, and at around 4.00 pm I adjourned the matter, having made orders for the parties to file written submissions, including in relation to the jurisdictional issue.

11. The original orders required written submissions to be finalised by 7 June 2010. Submissions on behalf of the appellant were not filed until 24 June 2010. On 20 July 2010 further orders for the exchange of written submissions were made, and these submissions were finalised on 28 July 2010. The issues

12. The ground on which the respondent seeks security for costs is that the justice of the case requires it, because: (a) the appellant is impecunious; (b) the appeal has poor prospects of success; and (c) the appeal, at least in part, appears to be being conducted for the benefit of those who are not parties (being the appellant’s lawyers).

13. The appellant opposes any order for security of costs. Such orders are resisted on the following grounds: (a) If security for costs were ordered in this case, “no seriously injured plaintiff who could not work would be able to bring a claim for damages nor lodge an appeal in the future”. (b) Neither the fact that the appellant’s lawyers are acting on a no-win no-fee basis, nor any other substantive evidence, establishes that the lawyers are acting: (i) without instructions; (ii) other than in their client’s best interests; (iii) because the lawyers want to recover their costs; or (iv) otherwise for an improper purpose. (c) The appellant’s case is strong. (d) In personal injuries cases, security for costs should not be ordered except in special circumstances, and special circumstances have not been shown. Jurisdictional issues

14. Before considering these arguments, it is necessary to deal with a fundamental question, being whether I have jurisdiction to order security for costs in a matter in the Court of Appeal. Written submissions have raised two relevant questions: (a) first, does the Court of Appeal, however constituted, have power to order security for the costs of an appeal instituted in the Court of Appeal; and (b) secondly, can a single Judge exercise any power of the Court of Appeal to order security for costs in a Court of Appeal matter?

15. The appellant says that the power to order security for costs is not conferred on the Court of Appeal at all. The respondent says that the Court of Appeal does have that jurisdiction and that it can be exercised by a single Judge. Jurisdiction of Court of Appeal

16. The jurisdiction of the Court of Appeal is specified in s 37E of the Supreme Court Act 1933 (ACT) (set out in the Appendix to this judgment), and encompasses appeals from orders of the Master and from other orders of the Court (in each case with specified exceptions), reference appeals under s 37S of the Supreme Court Act, and certain cases stated and questions reserved by the Court.

17. The appellant says that the appellate jurisdiction conferred by s 37E of the Supreme Court Act does not include “any power to deal with security for costs applications”. Rules for appellate proceedings

18. Chapter 5 of the CPRs deals with appellate proceedings. Under r 5001 (set out in the Appendix to this judgment), Ch 2 (Civil proceedings generally) does not as such apply to an appellate proceeding (r 5001(1)), but the applied civil rules, which under r 5001(3) include Pt 2.17 (Costs), apply “with any necessary changes” to an appellate proceeding that is a civil proceeding (r 5001(2)). Thus, there is general provision for costs orders in relation to appellate proceedings that are civil proceedings.

19. Counsel for the appellant has, however, managed to confuse himself by seeking out the definition (in the Dictionary to the CPRs) of “appellate proceeding”, and concluding that an application for security for costs is not an appellate proceeding – a conclusion which may be strictly correct but which has led him astray in his submissions. Counsel’s argument seems to run as follows: (a) In the Dictionary, “appellate proceeding” is defined to mean “a proceeding to which Chapter 5 applies” and a note to the definition refers the reader to the several rules that specify the kinds of proceedings to which parts of Ch 5 apply. (b) None of the specified parts of Ch 5 are expressed to apply to applications for security for costs. (c) Therefore, an application for security for costs is not an appellate proceeding.

20. These steps in the argument are logical, and may well reach a correct conclusion in saying that an application for security for costs is not an appellate proceeding as such. Counsel then goes on: The absence of an application for security for costs order from the applied civil rules seems indicative of the legislature’s intention to exclude this power from the Court of Appeal’s jurisdiction.

21. This statement is misconceived. Applications for security for costs may not be included in the definition of “appellate proceedings”, but they are clearly covered by the reference to the “applied civil rules”. The applied civil rules listed in r 5001(2) do include the provisions permitting security for costs to be ordered (Div 2.17.8 in Pt 2.17).

22. The effect of the definition of “appellate proceedings” is to identify the proceedings covered by Ch 5; for instance, r 5051 specifies that Pt 5.3, relating to appeals to the Supreme Court, applies to appeals from listed courts and tribunals such as the Magistrates Court and the ACT Civil and Administrative Tribunal. The effect of r 5001(2), in contrast, is to identify the procedural rules that apply to appellate proceedings – which expressly include the civil costs rules, as well as other procedural matters such as the rules about who may start and carry on a proceeding.

23. Counsel then goes on to suggest, as far as I can make out, that the Court of Appeal is intended to have no procedural powers, saying: This reading of Rule 5001 also reflects that it is intended to remove a number of the procedural type rules contained within Chapter 2 and there is good reason for that. The reason is that the Court of Appeal should be dealing with appeals and not matters of a procedural nature.

24. I find it hard to believe that counsel really means to suggest that the procedural powers exercised by a trial judge in managing a proceeding are entirely unavailable to the Court of Appeal and must be exercised, even in relation to appeals to the Court of Appeal, by a single judge exercising original rather than appellate jurisdiction. If this is his submission, it must be rejected out of hand. Not only does it reflect a misreading of r 5001, but it is also inconsistent with s 37J of the Supreme Court Act, which lists a variety of procedural matters in respect of which the jurisdiction of the Court of Appeal may be exercised by a single judge constituting the Court of Appeal. Section 37J is not a list of procedural matters that must be handled, for appeals to the Court of Appeal, by a single Judge exercising original jurisdiction, it is a list of procedural matters falling within the appellate jurisdiction which may (but need not) be dealt with by the Court of Appeal constituted by a single Judge.

25. Furthermore, the appellant’s argument, to the extent that it is specific to security for costs, can be disposed of by reference to r 5302(1), which says that “Security for costs of an appeal is not required, unless the Court of Appeal otherwise orders”.

26. Counsel for the appellant says that this rule does not empower the Court of Appeal to order security for costs, on the ground that a power should be express and should not be inferred from a “proviso”, such as the reference to the possibility that the Court of Appeal might “otherwise order” in relation to security for costs. Counsel is correct that, as a matter of drafting, it is preferable to confer a power explicitly rather than by implication, although it may be going too far to say that a power can never be inferred from provisions that clearly assume the existence of such a power. However, in this case there is no question of having to infer the existence of the power, since it is clearly conferred by r 5001 when read properly. Rather, r 5302 simply confirms the proper reading of r 5001, if any confirmation is necessary.

27. Finally, counsel for the appellant rejects the argument made by the respondent that “plaintiff” and “defendant” in the applied civil rules can be read for the purpose of appellate proceedings as “appellant” and “respondent”, saying: the appellant would submit that it is indeed not legitimate to read “appellant” for “plaintiff” and “respondent” for “defendant”. The references to “plaintiff” and “defendant” in the dictionary do not spell this out. There is simply no mention of “appellant” or “respondent” under the definition for plaintiff and defendant.

28. Counsel is correct that the definitions of “plaintiff” and “defendant” do not expressly mention appellants and respondents, although a respectable argument could be made that the general definition in r 20 of the plaintiff as “the party claiming relief” permits “plaintiff” to be read as including “appellant” in a rule otherwise expressed to be applicable to appellate proceedings. There is, however, no need to go to the Dictionary definitions to be able to read the applied civil rules appropriately—that capacity is given simply by the statement in r 5001(2) that the applied civil rules “apply, with any necessary changes”, to appellate proceedings. Clearly it is necessary, in the context of appellate proceedings, to read references to plaintiffs and defendants as references to appellants and respondents, and those notional changes to the relevant provisions are accordingly authorised.

29. I am satisfied that the Court of Appeal has all procedural powers necessary for it to manage appeals within its jurisdiction. Powers of Court of Appeal constituted by a single Judge

30. The next question is whether those procedural powers, to the extent that they permit security for costs to be ordered, can be exercised by the Court of Appeal constituted by a single Judge.

31. Section 37J of the Supreme Court Act 1933 is set out in the Appendix to this judgment. Section 37J(1) empowers a single Judge to exercise the jurisdiction of the Court of Appeal to hear and decide any of a variety of matters referred to as incidental matters in relation to an appeal, including matters such as leave to appeal, extensions of time, stay orders, including, removing or substituting parties to the appeal, disposing of an appeal by consent or for want of prosecution, the conduct of the appeal, and, significantly: (k) any other question of practice and procedure in the Court of Appeal; (l) costs and other matters incidental to a matter mentioned in paragraphs (a) to (k).

32. In Benjamin v GB Franchising Australia Pty Ltd [2008] ACTCA 11 (Benjamin), Refshauge J addressed the question whether he had jurisdiction to order security for costs in a Court of Appeal matter, and concluded, but without the benefit of submissions or argument from counsel, that he did. He explained his conclusion as follows: 25. The rule does not specify whether a single judge has power to make an order under r 5302. This matter was not addressed at the hearing, but I am, of course, required to ensure that I am exercising a jurisdiction that I have. Section 37J of the Supreme Court Act 1933 (ACT) provides for the powers that may be exercised by a single judge of the Court of Appeal. Paragraph 37J(1)(l) refers to “costs and other matters incidental to a matter mentioned in paragraphs (a) to (k)”. 26. It seems to me that jurisdiction as to costs includes jurisdiction as to security for costs. A pointer to and confirmation of this approach may be gained from the fact that the rules in relation to security for costs were contained in O 65 (Costs) of the Supreme Court Rules 1937 (ACT) until 1992 when O 33B (Security for Costs) was made, separating out the procedure. Whilst a different procedure, the application for security for costs is about the protection of a successful defendant or respondent for his, her or its costs, though it is intended to prevent abuse of process. Insofar as it is arguably not directly making an order to award costs, it is so closely allied that as to come within the category.

33. I am, with respect, not persuaded by Refshauge J’s conclusion that the power to order security for costs is conferred on a single Judge by s 37J(1)(l), and given that, as his Honour noted, the issue was not addressed at the hearing in Benjamin, I do not feel any inhibition in reaching a different conclusion after hearing arguments, and receiving written submissions, from counsel.

34. There are (at least) three possible ways in which s 37J(1) could be read as including a reference to the power to order security for costs in specified circumstances: (a) the reference to “costs” in para (1)(l) could be read as conferring a free-standing costs power, including the power to order security for costs and not limited by the reference to “incidental to a matter” dealt with in s 37J(1); (b) the power under para (1)(l) to make a costs order incidental to a matter mentioned in s 37J(1)(a)-(k) could be read as including power to make an order for security for costs in relation to such a matter; (c) an order for security for costs could be of itself a matter mentioned somewhere in s 37J(1)(a)-(k), such that the costs power in para (1)(l) need not be relied on at all. The costs power in s 37J(1)(l)

35. The general costs power exercisable by a single Judge under s 37J is expressed as applying to “costs and other matters incidental to a matter mentioned in paragraphs (a) to (k)”. The first question is one of punctuation, or absence of punctuation; is the reference to “costs” qualified by “incidental to a matter mentioned in paragraphs (a) to (k)” or does that phrase only qualify “other matters”? The paragraph could have been punctuated to make either of those interpretations clear; “costs, and other matters incidental to ...” would have rendered “costs” a head of power independent of a connection with any other paragraph of s 37J(1), while “costs, and other matters, incidental to ...” would have had the opposite effect. In the absence of any punctuation, it is necessary to look further.

36. The original s 37J included paras (a) to (h), para (h) dealing with the power to give directions about the conduct of the appeal in almost identical terms to current para (1)(j). The only reference to costs was in para (1)(g), which referred to the power to make “a consent order disposing of the appeal (including an order for costs)”. In 2005 a replacement para (1)(h), and new paras (1)(i) to (l), were inserted. The Explanatory Statement for the Justice and Community Safety Legislation Amendment Bill 2005 (No. 2) (ACT) includes the following references to the amendments of s 37J: [Overview] Under section 37J of the Supreme Court Act 1933, the Appeals Court can be constituted by a single judge when dealing with certain matters, such as applications for leave to appeal, extensions of time to appeal and leave to amend the grounds relied upon. To improve efficiency, the amendment to the Supreme Court Act 1933 permits the Court of Appeal to be constituted by a single judge (rather than three) with authority to strike out an appeal for want of prosecution or failure to comply with procedure requirements or for appeals that are scandalous, vexatious or unintelligible. The amendment to section 37J broadens the range of matters that can be heard by a single judge in the Court of Appeal. ... [clause notes] Amendment 1.35 – Section 37J(l)(h) – substitutes section 37J(1)(h) of the Supreme Court Act 1933 to include additional matters where the Court of Appeal may be constituted by a single judge. The Court of Appeal may be constituted by a single judge for dismissal of an appeal or other proceeding for want of prosecution, for any reason prescribed in the rules or on application of the appellant or other applicant. In addition, the Court of Appeal may be constituted by a single judge for any question of practice and procedure or costs or other matter incidental to a matter that can be heard by a single judge.

37. The clause notes simply paraphrase the new provisions and in my view give no help in interpreting those provisions.

38. The overview, to the extent that it goes beyond paraphrasing the new provisions, refers to the amendment as intended to “improve efficiency” and “broaden the range of matters that can be heard by a single judge”.

39. There is, therefore, an argument that the ambiguity I have identified in para (1)(l) should be resolved in favour of the “single comma” version, namely that the provision should be read as “costs, and other matters incidental to ...”, on the basis that allowing Court of Appeal costs generally to be dealt with by a single Judge certainly amounts to broadening the range of matters that can be dealt with by a single Judge, and would improve efficiency in the sense that such orders could be made by one instead of three Judges.

40. Section 139(1) of the Legislation Act 2001 (ACT) requires “the interpretation that would best achieve the purpose of the Act” to be taken into account in working out the meaning of an Act (each reference to “Act” can be read as referring to a provision of an Act, see ss 7 and 16 of the Legislation Act). There is no express purpose stated for the Supreme Court Act as a whole. As noted above, improved efficiency in the Supreme Court appears to have been a purpose of the insertion of s 37J(1)(h) to (l), but whether that is “the purpose” referred to in s 139(1) of the Legislation Act is less clear. I have elsewhere adverted to the difficulty of establishing the relevant purpose of legislation in order to apply s 139(1) of the Legislation Act (see In the matter of an application for bail by Isa Islam [2010] ACTSC 147 at [33]-[34] and [45]-[50]); for the current inquiry, it is sufficient for me to note that s 37J appears to be intended, at least partly in the interests of efficiency, to enable a single Judge of the Court of Appeal to exercise powers in relation to appeals that can appropriately be exercised by a single Judge (referred to in s 37J as “incidental matters”), without enabling single Judges to exercise the fundamental powers of a Court of Appeal required to be constituted by three Judges (s 37H(1)). It is apparent that a purpose stated in such terms merely re-frames, rather than answers, the question of how the relevant legislation is to be interpreted.

41. The pursuit of efficiency, sought to be achieved in this context by reducing the number of Judges involved in exercising certain Court of Appeal powers, suggests one approach to interpreting s 37J(1)(l), but there are countervailing arguments.

42. First, it is apparent that if s 37J(1)(l) is read as providing an unqualified power for a single Judge to make costs orders in Court of Appeal matters, this would extend to an order for the costs of the resolution of the appeal itself; if “costs” is not limited by “incidental to a matter mentioned in paragraphs (a) to (k)”, it is not limited by anything except the boundaries of the jurisdiction of the Court of Appeal. That would mean that, despite the significance of a costs order as one of the outcomes of an appeal, where the Court of Appeal constituted by three Judges has determined an appeal, a single Judge, not acting on behalf of the members of the Court of Appeal who determined the matter and not necessarily even one of those three members, could make costs orders in the cause.

43. Secondly, the structure of s 37J(1) tells against para (l) being intended as an independent power to order costs in any matter before the Court of Appeal. Paragraphs (a) to (j) specify particular powers that may need to be exercised for the proper disposition of an appeal lodged in the Court of Appeal, such as ensuring that the appeal is timely, has appropriate grounds of appeal, and involves the right parties, that an appeal can be disposed of summarily where appropriate, and that an appeal that does proceed is conducted efficiently. Paragraph (k) is a catch-all provision to ensure that any other question of practice and procedure that has not been specified is also included. The location of para (l), after the catch-all provision that appears to cover any appropriate matter not already specified, suggests that para (l) confers not a further, free-standing Court of Appeal power but a power incidental to those powers already specified – that is, a power that may be exercised in relation to the matters “mentioned in paragraphs (a) to (k)”.

44. Finally, the fact that s 37J(1)(g) still refers to an order for costs in the context of a consent order disposing of the appeal is notable. The reference to costs in para (g) would extend to costs that go beyond the costs of the proceeding for the making of the consent order, including the costs of the appeal itself, and would only remain necessary if para (l) refers only to the costs of “incidental matters” set out in paras (a) to (k). The survival of the reference to costs in para (g) suggests that para (l) was not intended to provide power to order costs in respect of all aspects of Court of Appeal proceedings; on the other hand, this survival could have resulted from an oversight when paras (h) to (l) were inserted in 2005, and by itself would not be conclusive.

45. For the reasons given, I am satisfied that para (l) is not intended to confer on a single Judge an unqualified power to make orders about the costs of a matter in the Court of Appeal, but only a power to order costs in respect of a matter mentioned in one of the preceding paragraphs of s 37J(1) (and that para (l) could appropriately be punctuated using two commas as suggested at [35] above). Security for costs incidental to other procedural matters

46. The application for security for costs in this case has not been identified as incidental to a matter arising under s 37J(1)(a)-(k), so I do not need to consider whether there is any situation in which an order for security for costs for the appeal itself could be covered by a reference to “costs ... incidental to” an incidental matter in relation to the appeal. Security for costs as a matter of practice and procedure

47. Another possibility is that an order for security for costs is directly contemplated by s 37J(1)(k), which refers to a single Judge’s power in relation to “any other question of practice and procedure in the Court of Appeal”.

48. There is some authority for the proposition that security for costs is a matter of practice or procedure.

49. In Churchills Limited v Pilcher (1940) 57 WN (NSW) 109 (Churchills), Jordon CJ (with whom Donaldson and Halse Rogers JJ concurred) said at 109 that the appeal before the Court of Appeal (an appeal against an order for security of costs) was “on a matter of practice or procedure”.

50. In Mt Nathan Landowners P/L (in liq) v Morris & Ors [2008] QCA 409, a single Judge ordered security for costs in a Court of Appeal matter. The source of the power to make the order was not stated in the judgment but, given the form of the applicable Queensland legislation (at [56]-[57] below), seems to have been r 767(a), which refers to questions of practice and procedure.

51. In Livingspring Pty Ltd v Kliger Partners (2008) 20 VR 377, the Victorian Court of Appeal (Maxwell P and Buchanan JA) at 379 adopted the principle in Churchills that: ... the exercise of this particular discretion [to order security for costs] does not determine substantive rights, but concerns a matter of practice and procedure. [Churchills Ltd v Pilcher (1940) 57 WN (NSW) 109 per Jordan CJ] Legislation in other jurisdictions

52. In considering whether the power to order security for costs is conferred on a single Judge by s 37J(1), it is instructive to consider the position in other jurisdictions. In most Australian jurisdictions the position is somewhat clearer than in the ACT. New South Wales

53. In NSW, the power to order security for costs is found in Uniform Civil Procedure Rules 2005 (NSW), r 51.50, as follows: (1) In special circumstances, the Court may order that such security as the Court thinks fit be given for costs of an appeal. (2) Subject to subrules (1) and (3), no security for costs of an appeal is to be required. (3) Subrules (1) and (2) do not affect the powers of the Court under rule 42.21 (which relates to security for costs).

54. Section 46(2) of the Supreme Court Act 1970 (NSW) permits a Judge of Appeal to exercise the powers of the Court of Appeal: (a) to make any order or give any direction in any appeal or other proceedings, but not an order or direction involving the determination or decision of the appeal or other proceedings. Victoria

55. The Victorian legislation appears to confer the power to make an order for security for costs on a court constituted by at least two judges of appeal (see s 11 of the Supreme Court Act 1986 (Vic), in particular ss 11(1A), (1B) and (4); rr 64.24 and 64.26 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic); and Body Bronze International v Fehcorp Pty Ltd [2010] VSCA 72). Queensland

56. Rule 772 of the Uniform Civil Procedure Rules 1999 (Qld) provides for security for costs to be ordered by the Court of Appeal. Rule 767 is as follows: 767 Exercise of certain powers by judge of appeal Subject to any Act, 1 or more judges of appeal may exercise the powers of the Court of Appeal in any of the following proceedings‑ (a) a proceeding about a question of practice and procedure in the Court of Appeal; (b) an application in a civil proceeding for leave to appeal or for an extension of time to apply for leave to appeal; (c) an application for a stay of execution or for an injunction pending an appeal; (d) an appeal listed for hearing under rule 764.

57. The only basis on which r 767 could be read as conferring a direct power to order security for costs on a single Judge would be that an application for security for costs is “a proceeding about a question of practice and procedure”; such an application is clearly not covered by any of paras (b), (c) and (d). Western Australia

58. In Western Australia a single Judge of Appeal may exercise any power of the Court of Appeal that is conferred by rules of court (Supreme Court Act 1935 (WA), s 61(1)). The Supreme Court (Court of Appeal) Rules 2005 (WA) provide for a single judge “to make an interim order subject to a condition”, including “a condition that requires ... (ii) a party to give security for the costs of the other party to the appeal” (r 43(2)(j)). South Australia

59. In South Australia, r 295 of the Supreme Court Civil Rules 2006 (SA) refers to the power to order security for costs in relation to an appeal (r 295(1)(g)) and specifically provides that such a power may be exercised by a single Judge (r 295(3)). Summary of other approaches

60. In summary, those jurisdictions in which it seems that security for costs may be ordered by a single Judge all provide an express power to order security for costs, but adopt one of two possible approaches to conferring that power on a single Judge exercising appellate jurisdiction, being: (a) a general conferral of what might loosely be called procedural or incidental powers of the Court of Appeal on a single Judge (NSW and Queensland); or (b) a specific provision, either as part of, or separate from, the provision permitting security for costs orders, that permits such orders to be made in the Court of Appeal by a single Judge (South Australia and Western Australia).

61. The ACT has a somewhat obscure mixture of the two approaches. The power to order security for costs in the court’s original jurisdiction is explicitly applied in the relevant appeal jurisdiction. The powers of a single Judge exercising appellate jurisdiction are spelled out in some detail in s 37J; however, instead of any explicit conferral of the power to order security for costs, the specific powers that are conferred are supplemented by a catch-all power in respect of “any other question of practice and procedure”. Conclusions

62. Although it seems to be a rather inelegant way to achieve this result, I have concluded that para 37J(1)(k) referring to questions of practice and procedure should be read as including a reference to orders for security for costs. In summary, my reasons are: (a) that there is authority for the view that an order for security for costs is a matter of “practice and procedure” (see [49]-[51] above); (b) that the policy aim expressed in the Explanatory Statement relating to the insertion of s 37J(1)(k), namely improved efficiency in the Court of Appeal, would seem to be furthered by such an interpretation of s 37J(1) (see [36] above); and (c) that the approach taken in other Australian jurisdictions except Victoria (at [52]-[60] above) indicates that there is no inherent or generally-accepted policy reason why security for costs should only be ordered by a court of appeal constituted by multiple judges. Whether an order for security for costs should be made

63. Having found that as a single Judge I do have jurisdiction to order security for costs, the next question is whether such an order should be made in this case. Civil procedure rules

64. Chapter 2 of the CPRs deals with civil proceedings generally. Part 2.17 deals with costs, and Div 2.17.8 with security for costs. As noted at [18] above, those provisions apply in civil appellate proceedings.

65. Rule 1901 is set out in the Appendix to this judgment. It lists the circumstances in which security for costs may be ordered. The application for an order in this case is expressed to be made in reliance on r 1901(h), being that “the justice of the case requires the order to be made”.

66. The only other possibly relevant ground on which this application could be based is r 1901(b): (b) the plaintiff is suing for the benefit of someone else, rather than for the plaintiff’s own benefit, and there is reason to believe the plaintiff will not be able to pay the defendant’s costs if ordered to pay them;

67. Submissions have also alluded to matters relevant to this rule, but the respondent has not made an express claim that the appellant was “suing for the benefit of someone else” so as to justify the making of an order for security for costs by reference to r 1901(b).

68. Rule 1902, also set out in the Appendix to this judgment, contains a non-exclusive list of factors to which the court may have regard in considering an order for security for costs. The following paragraphs appear to be possibly relevant in this case: (a) the means of the people standing behind the proceeding; (b) the prospects of success or merits of the proceeding; ... (e) whether the plaintiff’s lack of financial resources is attributable to the defendant’s conduct; ... (g) whether an order for security for costs would be oppressive; (h) whether an order for security for costs would stop or limit the progress of the proceeding; ... (m) the estimated costs of the proceeding.

69. As already mentioned, r 5302 refers to security for costs in relation to Court of Appeal matters, and implies, consistently with r 5001, that Div 2.17.8 (Security for costs) applies to Court of Appeal matters.

70. In Benjamin, Refshauge J considered the ACT legislation in the context of the authorities on the ordering of security of costs and concluded, among other things: (a) at [28]-[29], that although there is no rule in the ACT requiring the applicant to show special circumstances before security for costs will be ordered, the default position in the ACT is that no security is payable and therefore the applicant still has to make out a case for security being ordered; (b) at [30], that although impecuniosity is not a ground for ordering security for costs at trial, it may be a ground for such an order on appeal, and at [38], that it may be “a very relevant factor”; (c) at [30]-[31], that even on appeal, impecuniosity is not decisive, and an order for security for costs should not be made if it would “stifle an action which, in the interests of justice, ought to be determined on its merits”; Arnold v Queensland (1987) 73 ALR 607 at 613.

71. Refshauge J at [48] also referred to other matters that have been found to be relevant to applications for security for costs, most of which are also mentioned in r 1902: Other matters are commonly regarded as relevant to the decision whether security should be ordered. These include where the impecuniosity of the appellant has been caused by the misconduct of the respondent (Farrer v Lacey Hargland & Co (1885) 28 Ch D 482 at 485), where the liberty of the subject is involved (Hood Barrs v Heriot [1896] 2 QB 375), where the appeal is an abuse of process (Weldon v Maples, Teesdale & Co (1887) 20 QBD 331), where the appeal is manifestly groundless (Lall v 53-55 Hall Street Pty Limited [1978] 1 NSWLR 310) where there has been great delay in prosecuting the appeal (PG Gobel Pty Limited (in liquidation) v Katherine Enterprises Pty Limited (1977) 29 FLR 108 at 113) and where the matter in issue raises a matter of public importance or a significant matter (Kennedy v McGeechan [1978] 1 NSWLR 314(n)).

72. The structure of the legislation suggests that the first question is whether there is any power under r 1901 to make an order for security of costs, and the second question is whether, if so, the discretion to make such an order should be exercised, having regard to the relevant matters mentioned in r 1902(1) and any other matters. The reality is not so straightforward, at least in relation to an application based on the interests of justice, because determining whether the interests of justice require an order to be made will necessarily involve consideration of factors mentioned in r 1902(1). Need to show “special circumstances”?

73. Counsel for the appellant submitted that in personal injury cases, the principle is that orders for security for costs should only be made in “special circumstances”. In support of this submission he referred to several NSW cases in which comments were made about ordering security for costs in personal injury cases, including de Groot v Nominal Defendant [2004] NSWCA 88 (de Groot), at [29]-[30]; Porter v Gordian Runoff Ltd [2004] NSWCA 69; and Transglobal Capital Pty Ltd v Yolarno [2004] NSWCA 136 (Transglobal), at [32].

74. Those cases were decided by reference to Pt 51 r 16(1) of the Supreme Court Rules 1970 (NSW), which seems to have empowered the Court of Appeal to order security for the costs of an appeal “in special circumstances”. There is no equivalent test in the ACT CPRs. As Refshauge J pointed out in Benjamin, the ACT provision in relation to security for costs on appeal (at [25] above) suggests that the default position is that no security is required. On this basis, the applicant must make out the case for security, but his Honour noted at [29] that “there may be little warrant for reading into the provision that the application must demonstrate special circumstances”. I respectfully agree with his Honour’s observations about the direct relevance of a “special circumstances” test in the ACT, and note that accordingly, only limited reliance can be placed on the case law from NSW to the extent that it depends on the requirement to show special circumstances. Security for costs in personal injury litigation

75. However, that conclusion about the special circumstances requirement in the NSW rules does not resolve the separate question whether the considerations in personal injury litigation are somehow different. Certainly there are comments in some of the NSW cases, not to the effect that special circumstances are required before security for costs will be ordered in personal injury cases, but to the effect that personal injury cases may be a class of cases subject to slightly different tests for when security for costs should be ordered.

76. The matter of de Groot involved an application for security for costs in a personal injury case not dissimilar to the current one, although the costs involved (and presumably the damages sought by the appellant), were substantially higher. In that case, Handley JA said: 21 There is unchallenged evidence that the infant and the tutor are substantially without means and could neither pay the costs ordered against them for the trial, or the costs of the appeal should it fail. They are in no position to provide security for costs. Mr Shand relies on these facts as reasons why an order for security for costs should not be made. 22 Mr Poulos QC for the respondent submitted that the appeal was without merit and the appellant would fail because the Abalos principle would protect the trial judge’s findings of fact from appellate interference. He said that the appeal was being maintained by the appellant’s lawyers in an attempt to recover their unpaid fees from the trial and if security were ordered they would provide it if they thought that the appeal had real prospects of success. If they were not prepared to provide the security themselves the clear inference would be that they did not believe that the appeal had such prospects. 23 Mr Shand argued that a potentially meritorious appeal by a plaintiff in a personal injuries action, especially a plaintiff who was an infant, should not be stifled by an order for security and that in practice security was not ordered in such cases. 24 The appellant faces obvious difficulties in the appeal, principally because the judge’s findings on the credibility of witnesses will be shielded from appellate interference by the Abalos principle with its strictly limited exceptions. However appellants do succeed, from time to time, in bringing their cases within the exceptions and having the trial judge’s findings of fact reversed. Fox v Percy; (2003) 77 ALJR 989 is a recent example. 25 The Court is not in any position, at this stage, to form a view on the appellant’s prospects of success. There is really no reliable short cut in a case such as this, and with the wisdom of experience the Court actively discourages satellite litigation as expensive, time wasting and unproductive. There is no point in hearing or half hearing the appeal in order to determine whether security for costs of the appeal should be ordered. ... 29 SCR Pt 51 r 16(1) provides that the Court can order security for the costs of an appeal in special circumstances. The relevant case law was carefully reviewed by Hodgson JA in Porter v Gordian Runoff Ltd & Anor [2004] NSWCA 69 (16 March 2004, unreported). His Honour ordered security for costs of an appeal in an insurance case which had been tried in the Commercial List of the Supreme Court. He said [para 24] “in practice orders are not normally made simply because an appellant is impecunious, because to do so would frustrate many genuine appeals”. See also para 44. The practice referred to has certainly applied, in my experience, in personal injury cases and it is practically unheard of for a plaintiff appellant to be ordered to provide security in such a case. I can only recall one instance where security was ordered and that was where a tutor with assets who had appealed an unfavourable decision was replaced almost immediately by a tutor without assets. 30 There is nothing in the present case that could support an order for security other than the common situation of an impecunious plaintiff (and tutor), what appears to be a difficult appeal on the facts, and a long trial that has already cost the defendant a lot of money. However if I were to order security for costs in this case it seems to me that security for costs would have to be ordered in most appeals by plaintiffs in personal injury cases. This would be contrary to the long established practice of the Court. The respondent’s application for security for costs will therefore be refused. (emphasis added)

77. It is true that these comments were made in the context of the NSW requirement to show special circumstances; it is not however apparent that in the absence of such a requirement security would have been ordered. Handley JA’s comment at [30] may have amounted to a finding that “the common situation of an impecunious plaintiff (and tutor), what appears to be a difficult appeal on the facts, and a long trial that has already cost the defendant a lot of money” does not amount to special circumstances. However it can equally be said that where, as in the ACT, the default position is that security for costs is not required on appeal (r 5302), “the justice of the case” would not require an order for security for costs in a case that is no different from “the common situation” in relation to the relevant class of appeals.

78. Handley JA’s concern that if security for costs were ordered in the case before him, it would need to be ordered “in most appeals by plaintiffs in personal injury cases” also raises a relevant issue; whether the test is special circumstances (as in NSW), or simply that the applicant has established a case for ordering security for costs against the presumption that security is not required (as in the ACT), it is hard to see that the test should be satisfied by a matter that has only the standard characteristics of a particular but common class of cases. A decision that security for costs should be the norm in that class of cases would seem to be a decision for the rule-making body or the legislature rather than for the court.

79. I note in passing that in Transglobal, the NSW Court of Appeal constituted by Beazley, Santow and Ipp JJ found that in a case involving claims under the Trade Practices Act 1974 (Cth) and the Corporations Law (Cth), Handley JA had misapplied the special circumstances requirement by referring to a “general practice of the Courts to protect respondents from the financial consequences of an unsuccessful appeal” which, among other things, required protection to be given where an appellant was impecunious. However, the Court of Appeal at [16] and [17] referred without comment or criticism to Handley JA’s exclusion of personal injury litigation from the general principles he was articulating.

80. The NSW Court of Appeal in Transglobal at [32] adopted the comment by Kirby P in Uptown Sydney Development Corporation Pty Ltd v Bank of New Zealand (No 1) (1993) 11 ACSR 300 (Uptown) that under the NSW provision (Pt 51, r 16(1)) it was not enough “that the balance of justice or convenience favours the making of the order”, and went on to note comments by Sheller JA in Kennedy v McGeechan [1978] 1 NSWLR 315 referring to other relevant factors such as the strength and genuineness of the appeal, and the likely effect of a security for costs order. The appellant’s lawyers said that Kirby P’s statement means: that there must be a compelling case for the cause of justice to be perverted if a security for costs order [is] not made.

81. Counsel presumably meant to say that there must be a compelling case that the cause of justice would be perverted if the security for costs order was not made, rather than a compelling case for perverting the cause of justice; it is possible he also intended to refer to the course of justice. Even as corrected, however, his submission is difficult to accept.

82. What Kirby P actually said in Uptown at 301 was: I say that the rule [relating to security for costs of an appeal] is unusual because most of the practice rules governing the exercise of discretions in the Court of Appeal, and indeed in the Supreme Court, are not qualified by the necessity to show, for the favourable exercise of discretion, that “special circumstances” have been made out. In most cases it is simply enough that the balance of justice or convenience favours the making of the order.

83. That is, his Honour was distinguishing the more common case, in which the Court may make a discretionary procedural order by reference to “the balance of justice or convenience”, from the particular requirements in relation to orders for security for costs of an appeal, namely that special circumstances must be shown. All his Honour was saying was that the special circumstances requirement is more onerous than the test for whether other discretionary procedural orders may be made. There is no basis for interpreting Kirby P’s remarks as stating that the requirement to show special circumstances is a requirement to make a “compelling” case that the cause (or course) of justice would be “perverted” unless security for costs is ordered, and there is nothing in the subsequent NSW cases drawn to my attention suggesting that the special circumstances requirement is so interpreted. In any case, even if Kirby P’s remark has given the special circumstances test such a meaning, there is no basis for incorporating such a test into the law of the ACT. The estimated costs of the proceeding

84. The respondent estimates its costs of conducting the appeal at a minimum of about $30,000. No other information was provided by either party about the costs of the proceeding more broadly. The damages award that the Master would have made if he had found the respondent liable for the appellant’s injuries was just over $193,000. The merits of the appeal

85. A significant issue in relation to whether security for costs should be ordered is the merits of the appeal or its prospects of success (r 1902(1)(b)). The respondent submitted that the appellant’s prospects of success were low, while the appellant claimed his case was strong. Noting the comments of Handley JA in de Groot at [25] (quoted at [76] above), I am very reluctant to embark on any detailed review of the Master’s decision and the grounds of appeal, but given the significance of this issue in the current application I can see no alternative to some substantive consideration of those matters. Accordingly, I set out below a summary of the Master’s decision that focuses on the issues raised by the appeal grounds. The Master’s decision The hearing

86. The appellant’s case at first instance was simple. He had a chequered employment history since leaving school aged 14. The injury the subject of the proceedings was sustained in February 2006, less than two weeks after the appellant started work with the respondent as a storeman and parts runner at its Mitchell warehouse. He slipped while walking down a stairway in the warehouse and then fell down several more steps, coming to rest on his buttocks and back.

87. In the event, the appellant’s case proceeded “on the basis that the defendant’s alleged negligence was failure to maintain non-slip tape on the nosing of the steps”.

88. The appellant’s evidence was that when he fell, he was wearing rubber-soled work boots provided by the respondent and was carrying only a set of plastic wheel caps, in his right-hand. He described his left foot slipping out from under him as he stepped onto the top step.

89. The hearing began with a view of the warehouse, which was described by senior counsel for the appellant when the hearing resumed. The view was not the subject of a formal order under s 53 of the Evidence Act 1995 (Cth), but took place by agreement between the parties. It seems that there was some breakdown in communications among the parties and the Master, and the Master noted in his judgment that: 33. For my part, I understood that the Court was being invited to inspect the premises where the accident occurred, and in particular the staircase on which the plaintiff fell. I did not understand that I was being invited to view a demonstration by the plaintiff of how he had fallen. I accept that those representing the defendant took the same view at the time as I did, and made no detailed observations or notes of what was later suggested by senior counsel for the plaintiff to have been a demonstration by his client of, in effect, how the accident had happened.

90. It seems odd that the misunderstanding about what took place during the view did not emerge when the plaintiff’s counsel described the view in court.

91. There was evidence that the appellant had told some of the doctors he saw that he had put his right foot rather than his left foot onto the top step, but the appellant denied this. The Master took the view that there was not much significance in which foot the appellant had stepped off with, and also noted that giving different answers to such a question at different times did not reflect particularly on the appellant’s credibility.

92. There was one eyewitness to the appellant’s fall, a Ms Philla, who was working as a warehouse clerk in the warehouse at the time of the fall. She gave evidence of observing the fall, which she said involved the appellant tripping over his feet or having a bit of a stumble, and that the appellant had been carrying cartons or boxes when he stepped onto the top step. The Master found that Ms Philla’s evidence should be generally accepted, although his Honour believed she was mistaken about the cartons or boxes.

93. Three other employees of the respondent gave evidence about the staircase and how it was maintained. There was evidence that the steps were not slippery and that the work boots provided by the respondent were entirely satisfactory on the metal staircases. Over time several different forms of non-slip treatment had been used. After the plaintiff’s fall, another different approach was adopted. There was evidence that there had been anti-slip tape or “Suretread” lacquer on the nosing of the stairs at the time of the accident. None of the employees could remember any other falls on the relevant staircase or any of the other staircases.

94. After the accident the appellant received several different kinds of medical treatment, and undertook a rehabilitation program for three or four weeks, before returning to work at the warehouse on light duties about two months after the accident.

95. Nearly five months after the accident, the appellant was assigned to work in another warehouse. He told his supervisors that the work required there was beyond his physical capacity and that he found it painful, and he resigned. This was treated by the workers compensation insurer as a failure to comply with the conditions of his rehabilitation program, and the appellant received no further payments from the insurer.

96. The appellant registered for unemployment benefits and began a rehabilitation program through Centrelink. He tried a variety of further jobs but abandoned them, generally as a result of pain. At the time of the hearing the appellant was using a fairly substantial amount of non-prescription pain relief medication, as well as marijuana. The appellant gave evidence that since 2006 he had not attended a doctor in relation to his injuries, had not obtained prescription medication, and had not been required to provide any medical certificates about his capacity to work.

97. The appellant gave evidence that for some financial years before the accident, he had lodged tax returns that understated his income as a result of his failure to attach all the group certificates received during the relevant year. The Master found that this had not been accidental but had been done to obtain financial advantage, and that the appellant’s denial of that in the witness box did not help his credibility. There was also evidence that the appellant had regularly driven since his driving licence had been suspended in August 2004.

98. A substantial amount of medical evidence was tendered in documentary form including, on behalf of the appellant, radiological reports and four reports provided by two different doctors. Three reports by a psychologist commissioned by the appellant’s lawyers were tendered by the respondent. The Master summarised the various medical reports, commented on the fact that the differences of opinion among the medical experts appeared to relate to the different assumptions relied on by each doctor (which generally reflected the different versions of his history provided by the appellant), recorded his Honour’s view that “the plaintiff exaggerated his physical symptoms to all of the doctors who examined him for the purposes of the case”, and concluded “I prefer the evidence of the defendant’s doctors to those called in the plaintiff’s case”.

99. The Master also indicated that the appellant “is not a man whose honesty or integrity can be assumed” and gave reasons for that opinion.

100. Three months after the hearing had concluded, the appellant sought to re-open his case in order to ensure that there was evidence before the court about his recollection of what had happened during the view, with particular reference to the question of which foot he had put forward at the top of the staircase immediately before he fell. The Master noted that it did not become clear whether this was to be done by calling further oral evidence or simply by tendering affidavits about the view made by the appellant and his solicitor.

101. The Master refused the application to re-open the appellant’s case at the trial, noting that he considered it highly unlikely that it would be in the interests of justice to admit evidence, after the event, of what had happened in the course of the view, but concluding that in any case the evidence sought to be introduced would have made no difference to his conclusion.

102. The hearing took place over two days in May 2008 and four days in September 2008. The application to re-open was heard in April 2009. The Master’s judgment was delivered in February 2010. The Master’s conclusions

103. The Master accepted the appellant’s claim that he lost his footing and fell down the stairs, and suffered a back injury as a result. As to whether the fall was caused by the negligence of the respondent, the Master noted the following matters: (a) the absence of any expert evidence that the chequer-plate steel surface of the steps was inherently slippery; (b) the absence of any evidence that the surface of the steps was slippery before the respondent began the practice of applying non-slip treatments; (c) the absence of evidence of any other falls on the staircase concerned or any of the other five staircases in the warehouse; (d) the comments of Heydon JA in Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [32] that stairs are inherently but obviously dangerous, that the occupier’s duty was only to take such care as was reasonable under the circumstances, and that the risk of misjudging their footing and slipping or tripping on stairs “is an everyday risk which members of the public avoid by taking care for their own safety”; (e) that the duty of an employer to an employee is higher than that of an occupier to a member of the public; (f) that the respondent had provided synthetic-soled work boots with a heavy tread to all its employees and other employees had found the staircase to be safe for use with those boots; (g) that there was no suggestion that the dimensions or surface of the steps or the staircase as a whole failed to comply with any Australian standard.

104. The Master found that “an employee in the plaintiff’s position taking reasonable care for his own safety would not have fallen as he did”. He went on to note that employers, in providing a safe system of work, must take account of the fact that not every employee will always take adequate care, concluded that there was nothing else the employer could have done in this case and that the system provided was a reasonable one, and found that the appellant had not established that his fall was caused by a breach of the respondent’s duty of care to him.

105. The Master then considered the damages that would have been appropriate if the respondent had been liable for the appellant’s injuries, and as noted indicated an award of just over $193,000. Grounds of appeal

106. The grounds of appeal against the Master’s decision are as follows: (a) His Honour erred in failing to take into account the whole of the evidence in making his decision. (b) His Honour erred in preferring the evidence of the witness Philla to the evidence of the Plaintiff. (c) His Honour erred in not accepting the Plaintiff’s evidence that the stairs were slippery and that he slipped on them. (d) His Honour erred in accepting the witness Philla as a credible and reliable witness. (e) His honour erred in finding the Plaintiff had no specific recollection of what happened with regards to the mechanics of the accident and further in that regard, His Honour’s judgement was adversely affected by delay. (f) His Honour’s recollection of the scene of the accidently [sic] was fatally affected by delay and his subsequent acceptance of the witness Philla’s evidence as to the location of the Plaintiff’s feet was flawed in that it was impossible for the witness to see the Plaintiff’s feet through a solid horizontal surface above her head. (g) His Honour’s assessment of the credibility of the Plaintiff was fatally affected by delay. (h) The decision is against the weight of the evidence. (i) His Honour failed to supply proper or adequate reasons in preferring the evidence of the Defendant’s witnesses over that of the Plaintiff. (j) His Honour failed at all or adequately to show a reasoning process in his decision. (k) His Honour’s decision was fatally affected by delay. (l) His Honour erred in that he failed to take into account alternative measures the Defendant could have implemented by way of non-slip applications, to the steps, to avoid breaching its duty of care to the plaintiff. (m) His Honour erred or his judgement was fatally affected by delay in that His Honour failed to observe that the leading edge of the steps was rounded and inherently dangerous in its design. (n) His Honour was in error in refusing the Plaintiff leave to introduce further evidence. (o) His Honour’s judgement was fatally flawed by delay in that he failed to recollect a demonstration as to the mechanics of the Plaintiff’s fall, during a view, in circumstances where His Honour had the power to allow such a demonstration.

107. I have already described the appeal grounds as a hotch potch. They can, however, be summarised as raising: (a) challenges to the Master’s approach to the evidence generally and the evidence of the plaintiff and other witnesses specifically (grounds (a), (b), (c), (d), (e), (f), (g), (h), (i), (m), (n) and (o)); (b) challenges to the Master’s reasoning or to his exposure of his reasoning in his judgment (grounds (a), (i) and (j)); (c) a challenge in respect of matters the Master failed to take into account (ground (l)); and (d) a claim that the Master’s decision was “fatally affected” by delay (ground (k)), as well as assorted other references to the impact of delay in generating specific errors.

108. The respondent says that only grounds (l) and (m) assert any actual error by the Master in “the essential analysis leading to his decision”. Failure to take account of alternative measures

109. Ground (l) is that the Master failed to take account of alternative measures, being non-slip applications to the steps that the respondent could have implemented to avoid breaching its duty of care.

110. The respondent says that the Master did address alternative measures when he said at [107]: The staircase was equipped with handrails on both sides. The only criticism made of the staircase, in the final analysis, by senior counsel for the plaintiff is that there were metal protrusions on the upper edge of the nosing of the top step which were protruding through the tape along the edge of the nosing. There is no evidence from which I could conclude that this was the cause, or a cause, of the plaintiff’s fall. Nor is there any evidence from which I could conclude that it would have saved the plaintiff from falling if the tape had been replaced or a coat of Suretread paint applied on the nosing, for example a few days before the incident. To the extent that taping or painting might have made any real difference to the slipperiness of the step, there is no evidence which would cast doubt on the efficacy of the defendant’s system of repainting the steps at intervals of no more than three months, and I accept that that system was a reasonable one.

111. The appellant claims that there were alternative measures not considered by the Master, mentioning that on the stairs between the ground floor and the first floor of the Supreme Court building there is a rubber and aluminium treatment that, the appellant says, would have prevented the appellant from slipping down the stairs and suffering the relevant injuries. The respondent says that the appellant’s invitation to the Court to inspect those stairs “is highly irregular and ought to be rejected”; this is clearly right, and I have made no such inspection. On the other hand, the identification of alternative treatments in support of the appeal ground need not be ignored simply because it was coupled with an inappropriate invitation to the Court. Failure to find inherent dangers in the steps

112. Ground (m) refers to the Master’s asserted failure to observe “that the leading edge of the steps was rounded and inherently dangerous in its design”.

113. The respondent says that the claim of a fault in the design of the stairs was not part of the case that was run before the Master, and points out that his Honour at [99] adverted to the possibility that the chequer-plate steel used for the surface of the steps was inherently slippery and noted that, despite having obtained an expert report of an inspection of the steps, the appellant offered no evidence in support of such a possibility.

114. The appellant says that there is no need for expert evidence on this topic, because: [it] is abundantly clear from photographs tendered in the hearing there were on the checker [sic] plate steel rounded protrusions that had been polished and were slippery.

115. It is not clear to me that this submission supports appeal ground (m), which is expressed to relate to the “leading edge” of the steps rather than to protrusions in the chequer plate surface, but nor does it seem to relate to any other ground of appeal.

116. The respondent in further submissions asserts that the relevant photographs “demonstrate no such thing”. I am not willing to try to resolve an argument joined only in such terms (“did/didn’t”) in the course of an interlocutory application.

117. The safety of chequer-plate steel surfaces is not the same as the safety of rounded edges, so that the respondent’s submissions at [113] above are not a direct response to appeal ground (m). However, it may be reasonable to assume that an expert report about the steps that was obtained by the appellant would have mentioned any inherently dangerous features, rather than only addressing the question whether the chequer-plate steel aspect of the design raised any safety issues. Treatment of application for leave to re-open the case

118. The respondent also addresses appeal ground (n), which relates to the application for leave to re-open the appellant’s case at trial (described at [100]-[101] above) to put in evidence the appellant’s recollection of a view that was conducted during the trial. The Master made it plain at [114] of his judgment that the evidence sought to be admitted would have made no difference to his decision. The appellant has made no submissions in support of appeal ground (n). Failure to recollect a demonstration

119. Appeal ground (o) also relates indirectly to the view (described at [89]-[90] above), in that it asserts the Master’s failure to “recollect a demonstration as to the mechanics of the Plaintiff’s fall”.

120. The respondent asserts that no application for a “demonstration” was made; this is confirmed by the Master’s comments quoted at [89] above, and implicitly conceded by the appellant’s reference in appeal ground (o) to the fact that in the circumstances the Master “had the power to allow such a demonstration”, without any suggestion that the Master inappropriately refused to allow such a demonstration. The alleged failure to recollect must be premised on the assumption that even without application having been made under the Evidence Act, there was in fact some kind of demonstration. This claim may be borne out by the description of the view given by counsel for the appellant at trial, and quoted by the Master at [29] of his Honour’s judgment, which includes the statement that the appellant “also indicated the way he approached the stairs and how he alleges he began to descend and slipped on the stairs”. The significance of any such demonstration may be negated by the Master’s view that it made no difference which foot the appellant first put on the step, but the description quoted in his Honour’s judgment does not make it clear that the alleged demonstration related only to the question of which foot was used. Assumption of breach of duty of care

121. Finally, the respondent says that the appellant’s claim amounts to an argument that “because he slipped the defendant must have breached its duty of care”. Counsel for the respondent referred me to the observations of Gummow J in Roads and Traffic Authority of New South Wales v Dederer (2007) 238 ALR 761 at [65]-[69] about the difficulty of arguing that a defendant who could have prevented an injury must therefore have been negligent in not preventing the injury. In brief, his Honour said at [65]: In each case, the question of whether reasonable care was exercised is to be adjudged prospectively, and not by retrospectively asking whether the defendant’s actions could have prevented the plaintiff’s injury.

122. It may be that the argument described by the respondent does underlie this appeal, but the lack of merit in that argument does not seem to me to be a full answer to any of the specific appeal grounds. Failure to give reasons for preferring evidence of certain witnesses

123. Appeal ground (i) is that the Master “failed to supply proper or adequate reasons in preferring the evidence of the Defendant’s witnesses over that of the Plaintiff”. As Handley JA noted in the comments quoted at [76] above, an appellant who relies on challenging the trial judge’s findings on the credibility of witnesses has a difficult task, but not an impossible one. In this case a challenge to the Master’s findings about the evidence of medical witnesses may face lower hurdles than usual, since none of those witnesses gave oral evidence and the Master gave no explicit explanation for preferring the evidence of the defendant’s witnesses. On the other hand, the evidence of the medical witnesses was presumably irrelevant to the question of liability in this case, so such a challenge would not help the appellant. A challenge to the evidence of witnesses who appeared at the trial based on the Master’s asserted failure to give adequate reasons for choosing which evidence to accept may be somewhat easier to make out, if such a failure can be established, than a challenge based simply on asserting that the Master should have made a different set of choices. Significance of delay

124. The appellant submitted that, in effect, his major appeal ground was the delay between the hearing and the Master’s judgment, and the effect this appeared to have had on his Honour’s recollection of the appellant’s description of how the accident occurred, and of the concessions made by counsel for the respondent about the reliability of the evidence of Ms Philla.

125. In relation to delay, counsel for the appellant pointed to comments made by Kirby J in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80 ALJR 367 and quoted by Ipp, Basten and Campbell JJA in Mastronardi v State of NSW [2007] NSWCA 54 at [66]: Kirby J ... at [85] [in] a statement of principles expressly related to the operation of the judicial process, ... noted the dangers which delay can impose, albeit unconsciously, on the judge by making more attractive the easiest decision, a danger which increases with the length of the delay and the pressure to reach a result: see also Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17 at [74] referred to by Kirby J at [87]. His Honour continued at [88]: Where there is a possibility that the forgoing might have occurred, it is incumbent upon a court, reviewing the impugned decision in an appeal or on judicial review, to approach its task with vigilance. Where the decision-maker reaches a decision in reliance upon considerations of the credibility of parties or witnesses, significant delay undermines the acceptability of such assessments.

126. In Monie v Commonwealth of Australia [2005] NSWCA 25, Hunt AJA, with whom Giles and Bryson JJA agreed, summarised the authorities on the impact of delay in delivering a judgment, and concluded: 44. It must, however, be emphasised that delay between taking evidence and the delivery of judgment does not, in itself, justify upholding an appeal against the judgment given. Error must still be established on the part of the trial judge warranting either a reversal of the judgment or the grant of a new trial. Delay may assist an appellant in establishing such error because ... the inference will more readily be drawn that a trial judge’s failure to deal in a significantly delayed judgment with particular matters on which the appellant relied in contradiction of the findings made in that judgment resulted from those matters being overlooked by the judge—either because of the time which has passed or because of the pressure on the judge in the end to complete the judgment. In Boodhoo v Attorney General of Trinidad and Tobago [2004] 1 WLR 1689 at [11], the Privy Council acknowledged that the delay in giving the decision may adversely affect its quality to such an extent that it cannot be allowed to stand. This is what must be shown in order to demonstrate error resulting from delay which warrants either a reversal or a new trial.

127. As to the evidence of Ms Philla, the appellant points to concessions made by counsel for the respondent about Ms Philla’s evidence, as follows: Mr Crowe: And that’s the point Your Honour, that although she perhaps fell into error in gilding the lily, as it were, the lily remains. His Honour: Well if she was wrong on the account of the boxes why would I accept her as being correct about the precise position at the top of the steps where he ... Mr Crowe: That doesn’t matter. And there’s no doubt that Ms Philla, to some degree, engaged in a little bit of reconstruction but the essence of her evidence was – as she was an eye witness – that the man stumbled at the top of the stairs misplaced his foot and fell.

128. The appellant then submits that the evidence of Ms Philla was impossible to accept to the extent that it purported to describe her observation, from the ground floor, of the movement of the appellant’s feet at the top of the staircase. The appellant says “this is simply because somebody standing on a floor below another person cannot see what the feet of a person on a floor above are doing”. This statement may be correct in some circumstances – I am not convinced it is necessarily correct in relation to the observations than can be made by a person standing at or near the bottom of a staircase looking towards the top of the staircase.

129. On the other hand, the respondent’s concession about Ms Philla’s evidence may suggest that more explanation should have been given for relying on it in preference to the appellant’s evidence. Because of that concession, this may be a case in which the difficulties of challenging the trial judge’s assessment of witnesses may be relatively less substantial than in many cases.

130. The treatment of Ms Philla’s evidence may also suggest that there is an argument to be made about the impact of delays in this case. Conclusions on merits of appeal

131. It may be that the respondent has convincing responses to all of the appeal grounds. I note also that the appellant’s submissions on legal issues dealt with earlier in this judgment (for instance, at [18]-[29] above) do not inspire any particular confidence in the soundness of the submissions made in relation to the merits of the appeal.

132. However, the matters noted at [109]-[111], [119]-[120] and [127]-[130] above seem to exclude a finding that the appeal is hopeless or completely without merit. Financial considerations

133. The respondent makes submissions, under the general topic of “the means of the people standing behind the proceeding” (r 1902(1)(a)) about the financial position of the appellant and about the role of his lawyers. However, apart from the statement in oral argument that “in reality, the appeal in part at least, appears to be conducted for the benefit of those who are not parties”, the respondent does not allude to the scope for making an order for security for costs based on the involvement of people other than the appellants. Rather, the respondent simply relies on that alleged involvement as a factor to be taken into account under r 1902(1)(a). Is the appellant impecunious?

134. Evidence of the appellant’s financial position is scant.

135. The respondent, by the affidavit of Matthew Joseph Needham, referred to evidence from the trial and since, being: (a) the appellant’s tax returns for 2001/2 to 2005/6 (ie the five years before the accident) showing an average annual taxable income of about $16,000; (b) the Master’s findings at [97] that the appellant “has never enjoyed much money in our society ... and ... has never accumulated any capital” and that he had been mainly unemployed from the time of the accident until September 2008; and (c) developments since the end of the trial which are said to imply that the appellant remains unemployed.

136. The information from which the appellant’s continued unemployment is inferred on behalf of the respondent is that in December 2008 the appellant lodged an application under the Workers Compensation Act 1951 (ACT) in respect of a claim for compensation for incapacity at the rate of his full wage when working for the respondent. Mr Needham in his affidavit also notes that the appellant has failed to answer a request for further particulars sent to him in February 2010, but it is not clear whether this is also relied on to imply continued unemployment, or indeed how it could imply that.

137. The appellant disputes the respondent’s claim that he is unemployed. At the hearing of this application, a letter from the appellant’s lawyers to the respondent’s lawyers, dated 29 April 2010, was received in evidence. That letter said: As we are instructed the appellant is currently working, hence not impecunious.

138. The report of the appellant’s instructions that in April 2010 he was working was not however supplemented by, for instance, an affidavit from the appellant confirming that he is currently working.

139. I thus have no basis on which to make a finding whether or not the appellant is currently employed. Nor is it clear that such a finding would enable me to draw any conclusions about whether or not the appellant is impecunious – a person who is employed may be a member of the “working poor”, and a person may be unemployed because his financial position allows him the luxury of leisure.

140. It is appropriate to note, however, that even if the appellant is employed, he is unlikely to be earning a particularly large income, having regard to his lack of formal qualifications and to the kinds of employment he had undertaken before the accident, which were mainly in car detailing and similar areas.

141. No submissions were made about what meaning should be given to “impecunious”, but it appears to be shorthand for a party being unable to meet a costs order against him or her in the proceeding (Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 at 506 (Fencott); Fletcher v Federal Commissioner of Taxation (1992) 110 ALR 233 at 235; Donnelly v Ross Mining NL [1999] NSWLEC 76 at [56]).

142. Despite the inadequacies of the evidence about the appellant’s financial position, I am however satisfied: (a) that the appellant had little or no capital in early 2010; (b) that whether the appellant was subsequently or is currently employed, or whether he is subsisting on welfare payments, his income since early 2010 would not have allowed him to accumulate any significant capital, and is not likely to provide significant ongoing disposable income; (c) that accordingly the appellant would be unable to meet a costs award in the order of $30,000 within any reasonable period. Is the appellant’s lack of financial resources attributable to the respondent’s conduct?

143. The appellant’s lawyers, while disputing that the appellant is impecunious, conceded some degree of strain on the appellant’s financial resources in submitting that the appellant “has not worked for a number of years prior to the hearing and submits that his own diminished financial resources are attributable to the negligent conduct of [the respondent]”.

144. There was no new evidence provided in support of this claim, and little evidence to support it can be found in the evidence in the trial.

145. The Master’s judgment indicated that on the evidence before him, the Master would, if liability had been established, have awarded damages totalling around $193,000, including $50,000 for past economic loss (over the period of four years between the accident and the decision), and another $50,000 for future impairment of earning capacity. The Master said: In respect of past economic loss, I allow $50,000.00. I accept that the plaintiff’s capacity to work was impaired quite significantly, but not to anything like the extent he claims. This aspect of the award does not lend itself to a mathematical approach.

146. That is, the Master found that the injuries the appellant had suffered had reduced his earning capacity by, on average, roughly $12,500 per year since the accident, and would continue to affect that earning capacity, on average, by an amount of less than $2,000 per year (assuming around 30 more years of working life for a 31-year-old man).

147. The impact of the appellant’s injuries on the appellant’s earning capacity in the first four years after the accident, as assessed by the Master, was reasonably substantial in the context of the appellant’s taxable income in the five years before the accident. Those injuries do not, however, seem to explain any continuing unemployment since the Master’s decision in early 2010, and therefore I am not convinced that any such unemployment could be said to be attributable to the defendant’s conduct (even if the defendant were liable for the injuries sustained).

148. The current question, however, is not the effect of the appellant’s injuries on his earning capacity but their effect on his current financial position. The Master’s judgment suggests that the appellant may have received Centrelink unemployment benefits during at least some of the period after his accident, and also notes the appellant’s concession that in the years before his accident he had lodged tax returns understating his income to some degree.

149. Thus, it is implicit in the evidence before me relevant to the appellant’s financial position that that evidence, even if accurate as far as it goes, is incomplete and potentially misleading; the appellant’s real financial position may be better, or possibly worse, than suggested by the material I do have. I am not able to make any specific findings about the appellant’s real income in the last decade or so, but I am satisfied that the appellant has had, over that period, a relatively low income that, combined with his family responsibilities, makes it unlikely that he would have built up any particular capital by now even if the accident had not happened. I am accordingly not prepared to attribute his lack of capital as noted by the Master to the injuries he suffered in the accident. Nor, as already noted, am I convinced that any continuing unemployment can be attributed to those injuries.

150. Thus, even if responsibility for the appellant’s injuries could be attributed to the respondent’s conduct, I do not consider that the appellant’s current financial position can be attributed to that conduct. Role of appellant’s lawyers

151. Despite the absence of formal reliance on r 1901(b), the submissions made on both sides suggest that the substantive grounds of the application are not the impecuniosity of the plaintiff and the lack of merit of the appeal so much as the possibility that the appeal is being pursued not in the appellant’s interests but in the interests of his lawyers.

152. The respondent submitted: There seems little doubt that in the particular circumstances of this case the lawyers acting for the appellant have as much to gain as the appellant himself in pursuing the appeal. The words “people standing behind the proceeding” should be comprehended as extending to those acting on a “no win no fee” basis who have a vested interest in winning an appeal. It may be inferred in the absence of evidence to the contrary that the lawyers have access to the resources to provide the reasonably modest security which is sought, if in fact the appellant himself is personally unable to provide any security.

153. In later submissions the respondent expressly disclaimed any suggestion of impropriety by lawyers acting on a no-win no-fee basis, saying that: Janrule has at no stage suggested that there is any impropriety in the appellant’s lawyers acting on a “no-win no-fee” basis. Rather, Janrule seeks to raise what flows from that fact as a relevant circumstance for the determination of what the interests of justice requires [sic], and the exercise of the discretion which may flow from that determination.

154. The written submissions do not articulate exactly what does flow from the “no-win no-fee” arrangement, although in earlier oral argument counsel had said that: what it does do is to show that when you’re now dealing with having run your case and failed and you’re then continuing to act for the unsuccessful plaintiff, wishing to have another go on appeal, that it does create that interest, I suppose, your Honour, in somebody standing behind the plaintiff, the now appellant, in the outcome which we would suggest as a matter of justice requires consideration, at least, in the weighing of, the evaluation of the factors as to whether an order for security should be made or not.

155. The respondent does not dispute the appellant’s assertion that appeals in personal injury cases in the ACT, including appeals in such cases, are routinely conducted on a no-win no-fee basis, and nor does it address what, if anything, is different about this particular no-win no-fee appeal.

156. Furthermore, while claiming that the appellant’s lawyers have as much to gain as the appellant from pursuing the appeal, the respondent has, as noted at [67] above, not taken the next step of claiming that the appellant is in fact suing for the benefit of someone else, rather than for his own benefit (a claim that would, if established, itself provide a basis for ordering security for costs under r 1901(b)).

157. The appellant’s lawyers made the following submissions in response to the respondent’s submission set out at [152] above: 4.8 The applicant-respondent in this matter attempts to persuade the Court, without any substantive evidence, that this is a matter in which the plaintiff’s legal representatives are attempting to pursue the appeal for their own benefit rather than the benefit of the defendant [sic]. This submission is not supported by any substantive evidence. It is the predominant practice of solicitors for plaintiffs in this Territory to act on a no-win/no-pay basis. If this were a ground for security for costs indeed every application brought before the Master for a personal injury proceeding could be the subject of a security for costs application. 4.9 Further, it attempts to imply an improper purpose adopted by the appellant’s legal representatives and suggests that the appeal is brought without instructions from the client himself. Indeed the behaviour of the appellant’s legal representatives would breach the standards outlined in the Legal Professional (Solicitors) Rules 2007 (ACT) and be a breach of their duty to the client. Conversely however those same rules provide that a solicitor is expected to act in their client’s best interests. 4.10 It is hard to imagine how the appellant in this matter would react to the suggestion that the only reason this appeal is being brought was because his legal representatives wanted to recover their costs. 4.11 The appellant in this matter was originally a plaintiff who the Master found, when assessing damages, had suffered quite a serious injury and allowed a significant provision for future economic loss in his assessment of damages. He had not worked for a number of years and all the plaintiff’s medical reports indicated that he was likely to be seriously impeded in his ability to obtain work in the future. Of course such a person would want to obtain damages to make provision for their future and it could only be said to be in their best interests to appeal if the legal advisors had advised such an appeal had reasonable prospects. 4.12 Indeed in the past, the solicitors for the appellant-respondent have had two matters, one of which involved Mr [xxx] of Senior Counsel opposing them. [One of them] was a matter where a larger amount of work was completed than in this matter and [the plaintiff] was unsuccessful in his claim. No appeal was pursued and the legal costs written off. 4.13 Likewise, in [another matter] the appellant in that matter approached the solicitors acting for the appellant-respondent in this matter to conduct an appeal for him. The appeal was unsuccessful. No further appeal was mounted and the costs were written off. That is the practice of the majority of law firms practising in the area of personal injury in this jurisdiction and there is no evidence to suggest otherwise in this particular matter.

158. I have omitted the names of the parties and counsel in the other matters referred to in the appellant’s submissions, and mention that I am unconvinced about the propriety of the appellant’s solicitors revealing financial arrangements between them and other clients for the purposes of the argument in this case. It is hard to see how their instructions in this matter could have required or justified that conduct.

159. There are two significant propositions implicit in the respondent’s submissions. One is that “the people standing behind the proceeding” include lawyers acting on a no-win no-fee basis “who have a vested interest in winning an appeal”, and the second is the suggestion that if the appellant cannot personally provide security for costs, his lawyers could do so for him. The interests of the lawyers

160. Rule 1901(b) refers to the plaintiff “suing for the benefit of someone else, rather than for the plaintiff’s own benefit”, and it presumably reflects the common law principle mentioned by French J in Fencott at 505 that “an impecunious plaintiff who is only a nominal plaintiff, that is to say, who sues for the benefit of another, may be required to give security”. No authority has been drawn to my attention suggesting that a plaintiff whose lawyer is acting on a no-win no-fee basis would ordinarily be considered to be a nominal plaintiff suing for the benefit of another, or that such a lawyer would ordinarily be considered to be the beneficiary of the proceeding concerned. It would be surprising if there were such authority, at least in relation to personal injuries matters at first instance, since there are unlikely to be many personal injury plaintiffs whose real aim in the proceeding is to win their lawyers’ costs rather than to obtain benefits for themselves.

161. Thus, if the role of the appellant’s lawyers in acting on a no-win no-fee basis is genuinely relevant in its application for security for costs, the respondent needs to establish that in this case there is something out of the ordinary in the role of the appellant’s lawyers. Whether the lawyers should provide the appellant’s security

162. There is authority for the proposition that if the nominal plaintiff is suing for the benefit of another person, the position of that other person may be considered in deciding whether to order security for costs. In Fencott, French J said at 511 in the context of consideration of the position of impecunious companies: But the court will look to the substance of the parties be they shareholders or creditors who stand behind the company and stand to gain if its litigation is successful. It has been held that an order for security should not be declined on the ground that it would frustrate the litigation unless the plaintiff company establishes that those who stand behind it and will gain from the litigation are also without means: Bell Wholesale Co Pty Ltd v Gates Export Corporation (1984) 2 FCR 1 at 3. The burden of showing such impecuniosity rests upon the company seeking to resist the order. Where such persons are financially able to provide adequate security, then it has been said that generally speaking it is inappropriate to refuse an order: Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542 at 545. For example where the litigation is instigated and supported financially by a secured creditor of the company, the risk of that creditor pursuing his own interests in the action with no risk as to cost, is a weighty consideration: Sent v Jet Corporation of Australia Pty Ltd (1984) 2 FCR 201 at 215.

163. It is not clear to me that a party’s lawyers, even though they are acting on a no-win no-fee basis, stand in the same relationship with the party as, for instance, the shareholders or creditors of a company.

164. First, as already noted, I am satisfied that where a lawyer is appropriately providing services on a no-win no-fee basis, the plaintiff must generally be assumed to have a substantial interest in the proceeding that is separate from the lawyer’s interests in whatever fees the lawyer stands to receive for professional services. This is quite different from the position where the interest of shareholders or creditors of a corporation is in getting access to the benefits of whatever claim is being made by the corporation.

165. Secondly, the availability of legal services on a no-win no-fee basis provides access to justice for impecunious plaintiffs, a fact that may be particularly important in personal injury litigation. That access could be significantly reduced if it became legitimate for defendants to demand that lawyers who provide such services not only put their own costs at risk but must also guarantee the defendants’ costs. Whether it might sometimes be appropriate for a lawyer to offer to provide security for costs is a question I need not consider, but it does not seem to me appropriate in general for a court in deciding an application for security for costs to see lawyers as a possible source of support for an impecunious individual (especially in personal injury litigation) in the way that shareholders or secured creditors may be a possible source of such support for an impecunious corporation. The position of the lawyer may however be different if there is reason to believe that the lawyer is likely to be the only beneficiary of the proceeding even if the client is successful. This possibility is discussed further at [177]-[180] below. Effect of lawyers acting on no-win no-fee basis in appeals

166. For a litigant of moderate financial means, the risk of liability for the costs of unsuccessful litigation is likely to operate as a brake on the pursuit of unmeritorious claims. That brake may not be effective in relation to an impecunious litigant who has no ability to meet such a costs order and therefore, in practical terms, nothing to lose through pursuing unsuccessful litigation; in the case of a self-represented litigant, or a litigant being represented on a no-win no-fee basis, there is no deterrent in the risk of having to meet his own costs either.

167. In relation to no-win no-fee representation, however, it is reasonable to assume that the lawyers involved would be influenced by the likelihood that they will finish up with further expenses, but no fees, if they take on clearly unmeritorious appeals.

168. Thus it may be that there is insufficient deterrent against pursuing an unmeritorious appeal for a litigant who is both impecunious and being represented on a no-win no-fee basis. On the other hand, the deterrent effect might be seen to operate against the litigant’s lawyers in such a case.

169. It may be true, as submitted by the respondent, that lawyers acting on a no-win no-fee basis for a litigant who has lost at first instance have “a vested interest in winning an appeal”, because this is the only way they can recover the costs of the matter at first instance; on the other hand, it is clear that the vested interest is in winning the appeal, because losing an appeal conducted on a no-win no-fee basis simply increases the lawyers’ unrecoverable costs. Thus, while an appellant who has nothing to lose may be willing to pursue an unmeritorious appeal out of an ill-informed belief in the justice of his or her cause, or simply out of spite, the position should be different for the lawyers. For them, the choice is whether to gamble the chance of incurring further irrecoverable costs against the chance of recovering the past and prospective costs; a decision to pursue an appeal despite the risk of further substantial losses must be assumed to be based on an informed and rational assessment of the prospects of success.

170. This suggests that the fact of an appeal being conducted on a no-win no-fee basis is not as such a basis for requiring security for costs, since it should have no negative impact on the appellant’s capacity to meet a costs order in favour of a successful respondent, and may have a positive impact on the care with which the merit of the appeal is assessed on behalf of the appellant. Effect of order for security for costs

171. Counsel for the appellant says that an order for security for costs would be oppressive in that it would prevent the appellant pursuing the appeal, but the appellant has provided no evidence to this effect, and his lawyers do not even claim that their assertion is made on instructions. The lawyers do say that the appeal would be run on a no-win no-fee basis, presumably meaning that the appellant will not be required to provide funds to his own lawyers before the appeal can proceed, and they also assert that the appellant is not impecunious. Conclusions on application for security for costs

172. I have found that: (a) the appellant is impecunious in the sense that he would not be able to meet an order to pay costs of $30,000 to the respondent within a reasonable period; (b) the appellant’s appeal does not appear to be particularly strong, but it cannot be said to be hopeless or completely without merit; (c) the fact that the appeal will be conducted on a no-win no-fee basis does not mean that the appeal is necessarily brought for the benefit of someone else, and is not as such a ground for ordering security for costs; and (d) the appellant has not established that ordering security for costs would be oppressive or would prevent the appeal proceeding, although my finding about the appellant’s current financial position suggests that this would be a likely consequence, and it is a consequence that the respondent has not excluded.

173. If this were not a personal injury case, the respondent’s claim for some security for costs would be reasonably strong, given that the matter involves an impecunious appellant, an appeal with relatively poor prospects of success, an absence of direct evidence that the appeal will not proceed if security for costs is ordered, and a total award likely if the appeal is upheld that appears to be relatively low by comparison with the likely total costs incurred and to be incurred in this matter.

174. However, noting Handley JA’s comments, quoted at [76] above, about the implications of ordering security for costs against impecunious appellant plaintiffs in personal injury cases, and the absence of anything in this case that appears to take it outside the general run of appeals by plaintiffs in personal injury cases, I am not satisfied that the respondent has made out a case for ordering security for costs in this particular case of an impecunious appellant wishing to pursue what may well be a genuine appeal in respect of injuries undoubtedly suffered while in the employment of the respondent. Other matters

175. I have found this a particularly difficult application to determine, including because of the apparent unwillingness of the parties to make explicit submissions about what seem to be the real causes of concern. Material has been provided, the relevance of which has never been properly articulated, but which appears to have been included with the aim of implying impropriety on the part of the opposing party or that party’s lawyers, or responding to implied allegations of impropriety. Other material that might have been expected has not been provided, but that circumstance has not generally been challenged by the opposing party. In trying to apply the law that appears applicable to the material appropriately to be relied on, I have had the distinct sense that the real issues in this matter exist separately from what has been explicitly put before me, and that there may be hopes that hints of impropriety will somehow feed into my decision-making without having to undergo the normal legal processes of analysis, argument and assessment.

176. I mention four examples of matters giving rise to the concerns expressed above. Effect of solicitor and client costs

177. As mentioned, the amount that the Master would have awarded to the appellant if the respondent had been found to be liable was roughly $193,000, so the award of damages that would presumably be made on a successful appeal is not large. The costs of the trial appear likely to have been substantial, noting that the trial ran for seven days including the application to re-open the appellant’s case and involved senior counsel on both sides, and many expert reports were obtained. This means that even if the appellant succeeds on appeal, and is awarded his costs, he may be at risk of finding himself with a relatively low or even non-existent payout by the time his lawyers have deducted, from the damages awarded, the solicitor and own client costs (for both the trial and the appeal) that are not covered by a costs award against the unsuccessful respondent.

178. If it were the case that the likely award of damages on a successful appeal in this case would provide little or nothing to the appellant after his lawyers deduct the costs to which they would be entitled on a successful appeal, then there might be an argument, despite my comments at [160] above, that the appeal could be said to be brought for the benefit of the lawyers rather than their client, and indeed that it could not be of benefit to the client, for whom the possible results would be a successful appeal that would put his lawyers (but not the client himself) in funds, and an unsuccessful appeal that would leave him with a substantial debt to the successful party.

179. On the other hand, I am unsure about the implications of a situation in which the appellant has no real interest in the appeal because the award on a successful appeal will be eaten up by costs. The question is whether, if such cases can be identified, they should because of the interests of the lawyers be seen to stand outside the “common situation” of appeals by unsuccessful plaintiffs in personal injury cases, or whether such cases must be accepted as a necessary, if unappealing, aspect of the no-win no-fee funding of personal injury litigation and should accordingly be treated like any other personal injury case.

180. As already indicated, there were grounds for inferring the possible relevance of those questions but no information that could confirm or refute such an inference, and no arguments were made about the significance of any such questions. The possible significance of the relatively low potential damages award and the relatively high legal costs was never articulated. Submissions were confined to general references to proceedings being conducted on a no-win no-fee basis and the unspecified implications of that fact. Neither the material available nor the innuendos possibly contained in the submissions provided a basis for me to find that this appeal was out of the ordinary run of appeals against first instance losses by plaintiffs in personal injury cases. Role of appellant

181. Another curiosity was the effective absence of the appellant personally from the proceedings, in the sense that there was no direct evidence from the appellant himself about matters such as his employment status, his financial position more generally, or the effect on him of a security for costs order. His lawyers submitted that it was “hard to imagine” how the appellant would have reacted to the suggestion that the appeal was being brought because his lawyers wanted to recover their costs (para 4.10 quoted at [157] above), but presumably that reaction could easily have been established, rather than speculated on, if the appellant had provided an affidavit. Nor did counsel for the respondent make more than a passing reference to the absence of any evidence about the views or the circumstances of the appellant. References to the lawyers’ handling of other matters

182. I have at [157] above quoted material from submissions made on behalf of the appellant. It seems that the appellant’s lawyers inferred from the respondent’s submissions, and in their submissions sought to address, an allegation (which might or might not have been intended, and which might have been significant if made explicitly) that they were acting without the appellant’s instructions. I am not sure why the appellant’s lawyers sought to do this by reference to other matters they had handled. I have already questioned the propriety of the appellant’s lawyers’ reference to their financial arrangements with other named clients; I am also not sure what the lawyers were getting at in their references to the involvement of named counsel in those other matters. None of the assertions about how other matters had been handled, even if otherwise unobjectionable, would seem to establish anything relevant to whether the current appeal was being pursued without instructions. General aspersions cast on appellant

183. The respondent’s initial written submissions suggested that the court should conclude that the interests of justice required some security to be provided, and referred to $30,000 as an appropriate figure. The submission concluded: Added force is given to that submission having regard to the way in which the appellant has approached the resolution of this application.

184. This was explained by counsel for the respondent as reflecting the fact that while the respondent’s lawyers had assumed that this application would be able to “proceed in an orderly fashion and be determined [on the day set down for hearing]”, this had been prevented by the failure to brief counsel for the appellant until the day before the application was to be heard (see [8] above). However, since the explanation given for the last-minute briefing of new counsel for the appellant was not tested at the hearing, I see no basis for treating this particular event as an indication of a generally inappropriate approach to the resolution of the application for security for costs. Orders

185. The order is that the application for security for costs is refused. I shall hear the parties about the costs of the application. I certify that the preceding one-hundred and eighty-five (185) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Associate:

Date: 9 August 2011

Counsel for the applicant: Mr R Crowe SC

Solicitor for the applicant Sparke Helmore

Counsel for the respondent: Mr Montagnino

Solicitor for the respondent: United Legal

Date of hearing: 19 May 2010

Date of last written submissions: 28 July 2010

Date of judgment: 9 August 2011

Appendix – Relevant legislation

Supreme Court Act 1933 (ACT)

37E Appellate jurisdiction

(1) When exercising its appellate jurisdiction under this part, the court is to be known as the Court of Appeal.

(2) The following matters may be brought before, and heard by, the Court of Appeal:

(a) appeals in relation to the following orders:

(i) orders of the master, except interlocutory orders (see section 9 (Exercise of jurisdiction by master));

(ii) other orders of the court (except orders of the registrar, the Full Court exercising appellate jurisdiction or the Court of Appeal itself);

(b) appeals under section 37S (Reference appeal in relation to proceeding);

(c) cases stated or questions reserved by the court about any matter in relation to which an appeal may be brought to the Court of Appeal.

(3) However, an appeal may not be brought against an order made by the court sitting as the Court of Disputed Elections under the Electoral Act 1992, section 252.

(4) Also, an appeal may be brought against an interlocutory order of the court constituted by a single judge only with leave of the Court of Appeal.

(5) In this section:

registrar includes a deputy registrar.

37J Appeal Court constituted by single judge

(1) The Court of Appeal may be constituted by a single judge for hearing and deciding any of the following matters (incidental matters) in relation to an appeal:

(a) leave or special leave to appeal;

(b) extension of time to institute an appeal;

(c) leave to amend the grounds of an appeal;

(d) amendment or stay of an order of the court from which the appeal is brought;

(e) suspension of the operation of an order to which the appeal relates;

(f) including, removing or substituting a party;

(g) a consent order disposing of the appeal (including an order for costs);

(h) dismissal of an appeal or other proceeding for want of prosecution or for any other reason prescribed under the rules;

(i) dismissal of an appeal or other proceeding on the application of the appellant or other applicant;

(j) directions about the conduct of the appeal (including directions about use of written submissions and limiting time for oral argument);

(k) any other question of practice and procedure in the Court of Appeal;

(l) costs and other matters incidental to a matter mentioned in paragraphs (a) to (k).

(2) The rules may provide for incidental matters to be dealt with without an oral hearing, subject to any conditions prescribed under the rules.

(3) The rules may provide that the jurisdiction and powers of the Court of Appeal may be exercised by a single judge in particular kinds of proceedings.

Court Procedures Rules 2006 (ACT)

1901 Security for costs—when court may make order

The court may order a plaintiff to give security for costs under rule 1900 only if satisfied—

(a) the plaintiff is a corporation and there is reason to believe the plaintiff will not be able to pay the defendant’s costs if ordered to pay them; or

(b) the plaintiff is suing for the benefit of someone else, rather than for the plaintiff’s own benefit, and there is reason to believe the plaintiff will not be able to pay the defendant’s costs if ordered to pay them; or

(c) the plaintiff’s address is not stated, or is misstated, in the originating process, and there is reason to believe that the failure to state an address, or the misstatement of the address, was made with intention to deceive; or

(d) the plaintiff has changed address since the start of the proceeding and there is reason to believe this was done to avoid the consequences of the proceeding; or

(e) the plaintiff is ordinarily resident outside Australia; or

(f) the plaintiff is, or is about to depart Australia to become, ordinarily resident outside Australia and there is reason to believe the plaintiff has insufficient fixed and permanent property in Australia available for enforcement to pay the defendant’s costs if ordered to pay them; or

(g) a territory law authorises the order to be made; or

Note A territory law includes these rules (see Legislation Act, s 98).

(h) the justice of the case requires the order to be made.

1902 Security for costs—discretionary factors

(1) In deciding whether to make an order for security for costs under rule 1900, the court may have regard to any of the following matters:

(a) the means of the people standing behind the proceeding;

(b) the prospects of success or merits of the proceeding;

(c) the genuineness of the proceeding;

(d) ...

(e) whether the plaintiff’s lack of financial resources is attributable to the defendant’s conduct;

(f) whether the plaintiff is effectively in the position of a defendant;

(g) whether an order for security for costs would be oppressive;

(h) whether an order for security for costs would stop or limit the progress of the proceeding;

(i) whether the proceeding involves a matter of public importance;

(j) whether there has been an admission or payment into court;

(k) whether delay by the plaintiff in starting the proceeding has unfairly prejudiced the defendant;

(l) whether an order for costs made against the plaintiff would be enforceable within the jurisdiction;

(m) the estimated costs of the proceeding.

(2) This rule does not limit the matters to which the court may have regard.

5001 Appellate proceedings—application of ch 2 generally

(1) Except as provided by this rule or another rule in this chapter, chapter 2 (Civil proceedings generally) does not apply to an appellate proceeding.

(2) The applied civil rules apply, with any necessary changes, to an appellate proceeding that is a civil proceeding.

(3) In this rule:

applied civil rules means the following:

· rule 30 (Who may start and carry on a proceeding)

· rule 72 (Originating process—solicitor’s statement about filing)

· division 2.4.9 (People with a legal disability)

· part 2.9 (Preservation of rights and property)

· part 2.10 (Payment into court)

· part 2.16 (Judgment and other orders)

· part 2.17 (Costs)

· division 2.20.2 (Taking of accounts)

· division 2.20.3 (Making of inquiries)

· part 2.21 (Representation by solicitors)

· part 2.22 (Miscellaneous—ch 2).

Note Ch 6 has provisions applying to all proceedings (see r 6000 (Application—ch 6)).

5302 Appeals to Court of Appeal—security for costs

(1) Security for costs of an appeal is not required, unless the Court of Appeal otherwise orders.

Note Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.

(2) This rule does not limit division 2.17.8 (Security for costs).

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