Should an order for security for costs be made?
30 This is an appropriate matter for an order for security for costs. The important considerations that lead to the conclusion that the Court should exercise its discretion in favour of ordering security for costs are as follows.
31 First, the evidence demonstrates that there is at the very least a risk that Dr Lim may not be able to meet any further adverse costs order made against her. She has not paid Comcare's costs of the proceedings at first instance, or attempted to provide any explanation for why that is so. She has not challenged her liability to pay Comcare's costs, or the quantum of those costs, or otherwise suggested any basis for why she should not be required to pay the costs and disbursements outlined in the correspondence. Nor has she sought further time in which to pay those costs. Comcare's reasonable demands have been effectively met by silence.
32 Likewise, Dr Lim has not responded to Comcare's reasonable requests for information concerning her present financial circumstances. She has not even attempted to explain why she is unable or unwilling to supply that information. Nor has she adduced any evidence, or made any submissions, concerning her ability, or inability, as the case may be, to meet any adverse costs order should her appeal be dismissed. Dr Lim's stony silence in respect of these matters is sufficient to support an inference that there is a risk that she will be unable to meet any adverse costs order.
33 Second, Dr Lim's silence concerning her financial position means that her submission that an order for security for costs would effectively stifle the prosecution of her appeal must be rejected. Dr Lim did not submit, let alone adduce any evidence capable of proving, that she would be unable to comply with an order that she provide security in the sum of $15,000.
34 Third, Dr Lim has had her "day in court". Her review application in the Tribunal was unsuccessful and her appeal from the Tribunal on questions of law has been dismissed. In the circumstances, were Dr Lim not ordered to provide security for Comcare's costs of the appeal, she would be given a "free hit" at significant potential cost to Comcare.
35 Fourth, it is at this stage not possible to accept Dr Lim's submission that she has a strongly arguable case on appeal. As already noted, Dr Lim's grounds of appeal are prolix, in some respects difficult to understand, and do not appear to meaningfully engage with the findings made in respect of the five questions of law that were agitated before the primary judge. Indeed, some of the appeal grounds appear to raise new and novel arguments that were not agitated below.
36 Dr Lim has filed fairly detailed written submissions in support of her grounds of review. Oral submissions concerning her appeal grounds were also made on her behalf at the hearing of the application for security for costs. It was, with respect, somewhat difficult to follow some of the arguments that were advanced by or on behalf of Dr Lim in respect of her appeal. Like the grounds of appeal, the submissions tended to stray well beyond the questions of law that were addressed by the primary judge.
37 As already indicated, Comcare submitted that Dr Lim's appeal did not have good prospects of success. It submitted that some of the grounds were, or appeared to be, futile or at best unclear. It also submitted that a number of the arguments that appeared to be advanced were not squarely raised before the primary judge.
38 In all the circumstances, it is both unnecessary and undesirable to give any detailed consideration to Dr Lim's grounds of appeal or the arguments advanced by the parties for and against them. It is not possible to form any real view as to the prospects of success of Dr Lim's appeal without conducting a painstaking and thorough analysis of the Tribunal's reasons, the questions of law and arguments advanced on the appeal from the Tribunal, the primary judge's resolution of those questions, the complex and in some respects confusing arguments now sought to be advanced by Dr Lim, and the relevant authorities. That task is not made easy by the prolixity, if not opacity, of at least some of Dr Lim's appeal grounds and submissions.
39 The task of embarking on a detailed consideration of Dr Lim's appeal grounds and submissions, and Dr Lim's prospects of success in relation to her appeal, has been made more difficult by the fact that the High Court has just handed down a decision which appears to be relevant to at least one of Dr Lim's grounds. In Comcare v Martin [2016] HCA 43, the High Court considered the meaning of the exclusionary phrase "as a result of" in s 5A. The Court found (at [43]) that an interpretation of that phrase as importing a "common sense" test for causation did not adequately have regard to the statutory text, context and purpose. Ground 3 in Dr Lim's appeal grounds contends that the primary judge erred in making causal findings on the basis of a common sense test.
40 It does not, however, necessarily follow from the decision in Comcare v Martin that this appeal ground will succeed. The parties have not had an opportunity to make submissions on the implications of Comcare v Martin in the context of this matter. Much will depend on the particular findings made by the Tribunal and the primary judge in respect of causation. It should also be noted, in this context, that it would appear that Dr Lim also urged the primary judge to adopt a common sense approach to causation: see the judgment of the primary judge at [54]. It would be unwise to venture any opinion in respect of the way the Tribunal and the primary judge dealt with the question of causation in the context of an application for security for costs and in the absence of full argument on that point.
41 In all the circumstances, the task of considering the merits of Dr Lim's appeal is best left to the Full Court which will have the benefit of having heard full argument from the parties, including in relation to Comcare v Martin. The preferable approach, therefore, is to treat the prospects of success of Dr Lim's appeal as a neutral consideration.
42 Fifth, Dr Lim has not been able to identify any relevant public interest or other discretionary considerations that would militate against her being required to provide security for costs.
43 Finally, the security sought by Comcare is, in the circumstances, fairly modest, particularly when balanced against the unchallenged estimate of Comcare's costs of defending the appeal. As Comcare submitted, the amount of security sought ($15,000) is significant enough to deprive Dr Lim of a "free hit" and require her to carefully consider whether she wishes to pursue the appeal, but not so large as to be oppressive.
44 Having regard to each of these six considerations, on balance the interests of justice favour ordering Dr Lim to provide security in the sum of $15,000 as sought be Comcare.
45 There are, however, some issues with the form of the orders sought by Comcare.
46 First, the proposed orders do not state what would constitute acceptable security. In the circumstances, however, it would be appropriate to indicate that the appropriate security in the sum of $15,000 should be paid into Court by bank cheque, or that an unconditional bank guarantee be provided by or on behalf of the appellant from a recognised bank, in a form acceptable to a Registrar of the Court, to be held by the Registrar until further order.
47 Second, the proposed orders provide for the dismissal of Dr Lim's appeal if she does not provide the required security within 28 days of the order for security for costs being made. In the circumstances, it would be preferable for the appeal to be stayed if Dr Lim does not provide security within 28 days. A further period of 28 days should then be allowed for Dr Lim to provide security before the appeal is dismissed. That would effectively give Dr Lim until the end of the year to provide the required security if she wishes to prosecute her appeal.
48 Orders will be made accordingly. It is noted that Comcare did not apply for costs in respect of this application. In those circumstances, no order for costs will be made.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.