Lovejoy v Carp & Ors [1999] VSCA 167

Court of Appeal (Vic)|1999-10-01|Before: ORMISTON and CHERNOV, JJ.A.

PRACTICE AND PROCEDURE - Appeal - Application - Leave to appeal - Whether leave required - Whether order under s.23A of the Limitation of Actions Act 1958 final or interlocutory - Liberty of subject not deprived - Whether attended with sufficient doubt - No substantial injustice - Supreme Court Act, s.17(4)(b).

For the 6th-8th, 10th, 14th-19th and 22nd-33rd Respondents

I shall ask Mr Justice Chernov to deliver the first judgment.

The relevant respondents can be conveniently divided into two groups.

(a) the 6th-8th, 10th, 14th-19th, 22nd-33rd respondents, whom I shall call "the Government respondents";

(b) the 1st, 2nd, 12th, 13th and 20th respondents whom I shall call "the medical practitioner respondents".

Each group of respondents has issued a summons seeking from the appellant security for their respective costs of the appeal. The appellant has purported to issue a summons seeking leave to appeal against the decision of O'Bryan, J. of 18 June 1999 refusing to extend the time within which he may bring the proceeding against the respondents pursuant to the Limitation of Actions Act 1958 ("the Act").

Before dealing with the applications before us, it is necessary to set out briefly the relevant background. On 17 January 1994, the appellant issued a writ in this proceeding naming 33 defendants. They included the Government respondents who were at all relevant times medical practitioners in its employ, members of the police force, chief executive officers and superintendents of the Royal Park Hospital, and the State of Victoria. The State was sued in a vicarious capacity, it being allegedly liable, as employer, for the torts committed by the other Government respondents. The medical practitioner respondents were also defendants to the proceeding brought by the appellant. It seems that the 3rd-5th, 9th, 11th and 21st defendants were not served with the writ.

In general terms, the appellant has alleged in the writ that:

(a) Some of the respondents, who are medical practitioners, prescribed dosages of the appetite suppressant drug Duramine for him but negligently failed to warn him of its side effects. The alleged treatment was between 1978 and 1987.

(b) He was unlawfully arrested, detained, physically restrained and assaulted by some of the respondents, principally those who were then members of the police force and officers of the Royal Park Hospital. These events allegedly occurred variously between 1977 and 16 January 1988.

(c) Some of the respondents wrongfully certified him between 1982 and 16 January 1988, purportedly pursuant to the Mental Health Act 1958.

(d) He received inappropriate medical treatment from some of the respondents while detained at Royal Park Hospital and, on one occasion, at the St John of God Hospital.

(e) Some of the respondents were negligent in administering psychiatric treatment to the appellant whilst he was their private patient.

The causes of action pleaded include negligence, breach of duty, unlawful assault, wrongful imprisonment, and other statutory and common law wrongs. A perusal of the statement of claim indicates that it has many deficiencies. For example, in respect of many of the defendants, the appellant does not allege what warning or advice they ought to have given to him or how he sustained loss or damage by reason of the alleged wrongful advice and other acts. Moreover, many of the causes of action accrued between September 1978 and 16 January 1988. The bulk of the individual respondents have pleaded a Limitation of Actions Defence, relying on s.5 of the Act.

Each of the first respondent, the remaining other medical practitioner respondents and the Government respondents took out a summons on 15 June 1998, seeking to have the appellant's proceeding stayed, struck out or dismissed for want of prosecution. By summons issued 20 October 1998, the appellant sought orders extending the period within which he could bring his claim against the respondents pursuant to s.23A of the Act. At the hearing, the appellant sought also to rely on an alleged "disability" pursuant to s.23 of the Act. Mr Perkins, who appeared for the appellant, argued before His Honour that the appellant was "disabled" within the meaning of s.23 of the Act at the relevant time and that that was relevant to the exercise of the discretion under s.23A. As events turned out, his Honour held that the appellant was not so "disabled." The four summonses were heard together by his Honour on 1, 2 and 3 June 1999. On 18 June 1999, His Honour ordered that:

(a) the appellant's summons of 20 October 1998 for an extension of time under the Act be dismissed;

(b) the proceeding as against the respondents be dismissed for want of prosecution;

On 1 July 1999, the appellant filed a notice of appeal against his Honour's decision.

By summons dated 20 August 1999, the two sets of respondents applied for orders that the appellant give security for their costs of the appeal. The application by the Government respondents is supported by an affidavit sworn 25 August 1999 by Robyn Margaret Howson (who also filed an affidavit in reply sworn 24 September 1999). The other application is supported by affidavits sworn 25 and 30 August 1999 by Sarah Maree Faraone and by an affidavit sworn 30 August 1999 by Mark Wakefield Richards.

The applications for security for costs came on for hearing before us on 3 September 1999. At that time, no affidavit or other material had been filed on behalf of the appellant in opposition to the respondents' applications and he had not sought and did not seek leave to appeal in respect of his Honour's decision refusing to extend the time under the Act.

At the commencement of the hearing of the respondents' applications, the solicitor for the appellant sought an adjournment of the matters on the basis that he had been served with the documents only recently, albeit within the time provided by the Rules of the Supreme Court, and on the ground that the matter was complex and that he could not properly argue it. He said that he had briefed counsel believing that he would be available but, as matters turned out, counsel had a prior commitment in the Family Court from which he could not free himself in time to appear before us. This application was opposed by the respondents and although such opposition had significant merit, we concluded that it would be appropriate and, in any event, probably productive of cost saving in the long run if we heard the arguments for the respondents and then adjourned the matter on the basis that the appellant could file material on which he sought to rely and the respondents were given the opportunity to reply thereto. We foreshadowed that unless the parties so required, there would be no need for any further appearances. Consequently, we ordered that the respondents' applications be adjourned. We directed that:

(a) The appellant file and serve by 11.00a.m. On 17 September 1999 any affidavit on which he wished to rely and any written submission as to the merits of the application.

(b) The respondents each be at liberty to file and serve by 11.00a.m. On 24 September 1999 any affidavit upon which they wished to rely and written submissions as to the merits in reply to those of the appellant.

(c) The further hearing of the matter be adjourned to 1 October 1999, such hearing to be listed only if any of the parties so requested or the Court so directed.

On 17 September 1999, the appellant filed with the Registrar of this Court a 23-page affidavit together with four volumes of exhibit material, including, inter alia, the 33 exhibits on which the appellant relied below. The affidavit deals essentially with alleged errors made by his Honour in the relevant part of his judgment and with his failure to take into account all the material that was placed before him. It also deals with the supposed merits of his application for extension of time under the Act.

On 21 September 1999, the appellant filed the following further material with the Registrar:

(a) A summons in which he purported to seek leave to appeal against his Honour's order dismissing his application for extension of time.

(b) An affidavit in support of that summons (in which he relies on his affidavit sworn 17 September 1999).

He also delivered an outline of submissions in respect of the application for security of costs and in respect of the leave application. Further material was filed by the appellant on 29 and 30 September 1999.

The respondents have filed outlines of submission in response to the application for leave to appeal. Since neither party requested that the security for costs application be listed and since the Court did not so direct, the only matter that came before us this day for hearing was the appellant's summons for leave to appeal against the relevant decision of O'Bryan, J.

I have noted that the appellant filed the summons for extension of time on 21 September 1999. Rule 64.03(3) provides, however, that an application for leave to appeal is required to be made within 14 days after the day of the decision of the court of first instance (here, 18 June of this year) unless the Court of Appeal or a Judge otherwise orders. No such order has been made. The appellant's leave application filed on 21 September 1999 is well out of time (by over 9 weeks) and is, therefore, incompetent. Further, there is no formal application before the Court for an extension of time and the appellant has provided no explanation for his failure to commence the application within time. This is despite him being put on notice of the procedural requirement via correspondence to his solicitor from the solicitor for the first respondent dated 5 July 1999 and 7 July 1999, advising that leave was required in so far as the appellant was seeking to appeal the refusal to extend the limitation period. (The appellant's solicitors have not responded to either of these letters.) The issue was also raised in each of the affidavits filed by the sets of respondents in support of their applications for security for costs.

When the matter came on for hearing before us, the appellant made an oral application for an extension of time within which he might apply for leave to appeal. The Court invited him to put any additional arguments in support of his leave application as if the time for making it had been extended and adjourned consideration of the application to extend time until after the merits of his leave application had been considered.

Turning to the leave application, it was submitted by Mr Perkins that since the appellant probably cannot make a further s.23A application, his Honour's order was final and not interlocutory. It has been held by this Court, however, in D.A. Christie Pty Ltd v. Baker [1996] VicRp 89; [1996] 2 V.R. 582, that an order dismissing an application under s.23A of the Act is an interlocutory and not a final order. Such an order does not finally determine the legal rights of the parties as distinct from determining the application (Carr v. Finance Corporation of Australia Ltd (No. 1) [1981] HCA 20; (1981) 147 C.L.R. 246, 248; Hall v. Nominal Defendant [1966] HCA 36; (1966) 117 C.L.R. 423, per Windeyer, J. at 443; Little v. State of Victoria [1998] 4 V.R. 596, per Callaway, J.A. at 598). Moreover, there is probably no reason why the appellant cannot make a further application for extension of time should he wish to do so, providing, of course, he has different material on which he seeks to rely such as to avoid being met with the defence of issue estoppel. On this point, see D.A. Christie Pty Ltd v. Baker.

Mr Perkins argued that even if the relevant decision was interlocutory in nature, leave was not required to commence and prosecute an appeal against it, because the proceeding and therefore, the decision in question, concerned the liberty of the subject within the meaning s.17A(4)(b)(i) of the Supreme Court Act 1986. No claim is made in the proceeding on the basis that the appellant's liberty was being affected by the wrongful conduct of the respondents or some of them. Moreover, the outcome of this appeal will in no way affect his liberty. The claim made in the proceeding is that some of the respondents have wrongfully detained or incarcerated the appellant in the past. The relief sought by the appellant in his statement of claim is based on the alleged past deprivation of his liberty through allegedly wrongful incarceration, detention and imprisonment by some of the respondents. Such a claim is not one which "concerns" the liberty of the appellant for the purposes of the above provision, giving it "as broad a meaning as practicable" (Ryan v. Attorney-General [1998] 3 V.R. 670, per Ormiston, J.A. at 672).

In the circumstances, therefore, it seems clear enough that his Honour's relevant decision was interlocutory and unless leave is obtained, this Court has no jurisdiction to hear it (Little v. State of Victoria, per Callaway, J.A. at 602).

It is trite that in order to obtain leave, the appellant must establish that his Honour's relevant decision was attended with sufficient doubt to warrant it being reconsidered on appeal and that substantial injustice would be done if the order were allowed to stand (Niemann v. Electronic Industries Ltd [1978] VicRp 44; [1978] V.R. 431, 442). Before turning to consider the case sought to be made by the appellant in that regard, I note that it was said by this Court in X v. Director of Public Prosecutions [1995] 2 V.R. 662, that usually the Court should not give detailed reasons for refusing leave to appeal (per Brooking, J.A. at 623, with whom Charles, J.A. agreed, and Callaway, J.A. at 626).

The principal attack mounted by the appellant on the relevant part of his Honour's decision was that he failed to have proper regard to the appellant's evidence. More particularly, it was put that:

(a) His Honour failed to accept into evidence, read or give due weight to the 33 exhibits on which the appellant relied below, particularly the exhibits which were the reports of medical practitioners relating to the appellant's mental state; and

(b) His Honour did not give the appellant a proper hearing, thereby denying him procedural fairness.

It was also argued that his Honour's decision that the appellant did not suffer from a "disability" within the meaning of sub-s.3(2) and 3(3) of the Act during the relevant period for the purposes of s.23 of the Act was against the weight of the evidence and that his Honour erred in exercising his discretion to refuse to extend time under s.23A of the Act.

The appellant contended further in his written submissions that in the alternative, if s.23 disability was not established, then fraud on behalf of the respondents must have existed so as to postpone the limitation period pursuant to s.27 of the Act. But the latter point has not been pleaded and was not canvassed before his Honour. Master Wheeler ordered on 23 September 1998, that the appellant have leave to file and serve by 7 October 1998, his reply to all the defences in the proceeding, setting out, inter alia, in so far as he sought a postponement of the limitation period pursuant to s.27 of the Act on ground of fraud or mistake, the factual matters relied upon by him, including the nature of the fraud and the date of the discovery thereof. According to the affidavit of Robyn Margaret Howson sworn 24 September 1999, the appellant has not filed replies to the defences as ordered by the Master, or at all. The appellant, in the affidavit filed by him on 30 September 1999, contends that he did comply with the substantive aspect of the Master's order. He maintains that his affidavit filed 15 October 1998 (referred to in his affidavit filed 17 September 1999), was prepared and filed pursuant to the Master's order and, notwithstanding that it was filed out of time (8 days after the expiration of the time stipulated in the relevant order), it was intended that it be a reply to the defences of the various respondents and that it, or so the appellant claims, pleads s.27 fraud in 112 paragraphs. He does not, however, point to the particular paragraphs in which he claims to have included the relevant pleadings. In any event, the s.27 point was not argued before his Honour and was not dealt with by him in his reasons for judgment. Thus, if the appellant wishes to rely on s.27 of the Act, he will have to seek leave to amend his pleadings in order to make such a claim before he can pursue it.

In support of the contention that his Honour did not read or give due weight to his material, the appellant pointed to passages in the transcript of the hearing and in the judgment where, it was claimed, his Honour said he would not read or fully consider all the material. More particularly, reference was made in the appellant's written material to:

(a) Page 60 of the transcript, where his Honour said in response to the intimation from the appellant's counsel that he would seek to tender all the exhibits, that "I'd suspect from looking down at your table that it comprises hundreds of pages, and I'm not going to take hundreds of pages in this application .. And if I did, I'd only be pretending. I'm not going to read all that material. I'm seized of the general nature of the application now."

(b) At p.202 of the transcript his Honour said: "Could I give you this assurance .. I intend to read your client's affidavit in detail and if, in reading it in detail I see a need to see exhibits, I shall ask for them".

(c) At para.40 of his Honour's judgment he said: "I searched a large box of exhibits but discovered only two exhibits bearing directly upon the mental state of the plaintiff".

Mr Perkins also contended that his Honour did not read or, if he did, he did not properly read the statement of claim because in his judgment he attributed it to the appellant whereas it was obvious that it was signed by him. Further, it was submitted by Mr Perkins that his Honour did not have regard to the judgment of Harper, J., which is found amongst the documents comprising Exhibit "AAL-8", because it is not specifically mentioned in the reasons of O'Bryan, J. Further, it was contended that having regard to the tenor of the decision of O'Bryan, J., it should be inferred that his Honour disregarded the decision of Harper, J. (which was said to be relevant to the question of "disability").

In my view, however, it is clear enough that what his Honour said in the references put forward by the appellant and other passages was that he would look at all the material filed on behalf of the appellant but consider only the documents that were relevant to the application. That this is what his Honour did when he considered the appellant's application is evident from the terms of his judgment. I point, by way of example, to his Honour's references to the reports of Drs Rose, Walton and Holwill which formed part of the exhibits relied on by the appellant to establish "disability." Thus, there is, in my opinion, no basis for contending that his Honour declined to consider relevant documentation or to give due weight to it.

As to the claim that his Honour did not give the appellant a full hearing, the appellant sought to draw an inference to that effect from the fact that the Listing Master had set the case down for hearing over 10 days, whereas his Honour heard the case for just over two days. It was said, in effect, that this shows that his Honour did not allow the appellant a full hearing. In my view, however, no such extraordinary inference can be drawn from his Honour's speedy and obviously efficient disposition of the case. The appellant's argument is, in my view, based on faulty logic. In the first place, it makes no allowance for his Honour's efficiency in hearing the matter and forcing the parties to deal only with the relevant aspects of their respective applications. Secondly, there may have been all sorts of reasons why the Listing Master set the case down for hearing over 10 days, not the least of which being the volume of documentation that was filed on behalf of the appellant, thereby creating the impression that considerable time would be required to deal with it. I also mention that representations no doubt were made or may have been made to the Listing Master that the hearing would take that amount of time. It is now fairly obvious that much of the documentation that is contained in the exhibit folders was irrelevant or inadmissible for other reasons, but it would not have been possible for the Listing Master to determine that in the time that was available to her to make a determination as to what period should be set aside for the hearing of this case. In addition, of course, there was the material that was filed on behalf of the respondents in support of their claim that the proceeding be dismissed for want of prosecution. Thus, the fact that the Listing Master allowed ten hearing days for the case but his Honour disposed of it within a third of that time merely speaks volumes as to his Honour's efficiency rather than establishing failure on his part to give the appellant a proper hearing.

As to the appellant's attack on his Honour's decision which dealt with the merits of the application to extend the time under the Act, it is difficult to discern the basis on which it is made. The notice of appeal, the appellant's affidavit that was filed on 17 September 1999 and his outlines of submission are, at best, assertive. Nowhere in the appellant's material is it stated with any degree of specificity, what the error was that his Honour was supposed to have made which would arguably warrant upholding the appellant's challenge to his decision. In my view, the appellant has not demonstrated that his Honour may have erred in exercising his discretion to refuse an extension of time under s.23A of the Act.

I am also of the view that the appellant has not shown that his Honour's decision that the appellant was not under a relevant "disability" was attended with sufficient doubt. The principal argument of Mr Perkins was that his Honour's decision was against the weight of the evidence. In that respect he pointed to the decision of Harper, J. of 6 May 1992, in which his Honour held that "at times in the past the appellant has suffered from a mental illness". The appellant also pointed to the evidence of Dr Walton, more particularly his report of 8 November 1993, in which he opined that the appellant was a person who is properly described as suffering from chronic paranoid schizophrenia. Mr Perkins submitted that there was medical evidence before his Honour that the appellant suffered from mental illness at least in late 1993 as well as the finding of Harper, J. of May 1992 to a similar effect. This, he claimed, led to the inescapable inference that the appellant was under a "disability" for the purpose of s.23. Consequently his Honour's finding flies in the face of that evidence.

Mr Perkins, however, agreed during argument that the test to be adopted to determine whether the appellant was under a disability for the purpose of s.23 of the Act was whether he was incapable of managing his affairs as a reasonable man would do. This test was adopted by his Honour from the definition given to the words "unsound mind" by Lord Denning, M.R., in Kirby v. Leather (1965) 2 Q.B. 367, 383-384, where His Lordship said that the words "unsound mind" in the English legislation are in effect a reference to a person who is by reason of mental illness "incapable of managing his affairs ... as a reasonable man would do". The words "unsound mind" are relevant for the purpose of this case bearing in mind that s.3(2) of the Act states that "for the purposes of this Act, a person shall be deemed to be under a disability while he is .. of unsound mind." The relevant affairs with which the appellant was concerned for the purpose of this case, consisted of the bringing of this proceeding. In my view, on a fair reading of his Honour's judgment, it is clear that although he took into account the medical evidence, including that of Dr Walton, he nevertheless was not satisfied from all the evidence that the appellant was incapable of managing his affairs in relation to the claims specified in the writ at the particular times, being the times when the causes of action accrued. It must be remembered that there was also evidence before his Honour which showed that at the time Dr Walton described the appellant as suffering from chronic paranoid schizophrenia, he was giving instructions for the preparation of the complex proceeding that was eventually issued on 17 January 1994. The mere fact that a person is diagnosed as schizophrenic does not, by itself, mean that he or she is not capable of managing the relevant affairs as a reasonable person would. In my view, it was not shown that his Honour's decision on this point may have been against the weight of the evidence.

For these brief reasons, the appellant has not satisfied me that his Honour's relevant decision was attended with sufficient doubt to warrant having it reviewed on appeal. In light of that, no substantial injustice would be done if the decision to refuse an extension of time under the Act were to stand. I would, accordingly, not give leave to appeal his Honour's decision refusing to extend the time under the Act. It follows that there would be no point in extending the time within which the appellant might bring an application for leave to appeal. Consequently, I refuse his application to that effect.

I now turn to consider the respondents' applications for security for costs of the appeal. The security that is sought is in the following amounts:

(a) The Government respondents seek $24,000 on the basis of their estimate of costs that are likely to be incurred by them for the interlocutory steps and the hearing of the appeal. It is assumed that the hearing of the appeal will take three days.

(b) The first respondent, who is represented by different solicitors from those who represent the remaining medical practitioner respondents, seeks $51,000 by way of security, also on the basis that the hearing of the appeal will take three days. This amount includes the sum of $27,000 for senior counsel for three days' preparation and three days' hearing fees. These costs, however, are to be borne by all of the medical practitioner respondents. Thus, putting aside the fees of senior counsel, the amount of security sought by the first respondent is $24,000. I should add for completeness that, in my view, it is reasonable for the medical practitioners to engage senior counsel to appear on their behalf on this appeal.

(c) The remaining medical practitioners seek security in the sum of $24,000 (this sum excludes the shared cost of senior counsel).

All these costs have been calculated, so we were told, on a party/party basis.

It should be mentioned that the solicitors acting for each of the above three groups of respondents have sought unsuccessfully an undertaking from the appellant for such security. This not having been given, they have applied to the Court for appropriate orders.

This Court may "in special circumstances" order that security be given for the costs of an appeal (see r.64.24(2)). In my view, "special circumstances" within the meaning of the rule exist in this case so as to warrant the making of an order that the appellant give security for the respondents' costs of the appeal. There are two principal reasons for this conclusion. The first is that the appellant is impecunious in the sense that on the material before the Court filed on behalf of the appellant and the respondents, I am satisfied that he will not be able to pay the costs of the sets of respondents or any of them if the appeal is unsuccessful. In Scerri v. Northam Holdings Pty Ltd [1967] VicRp 76; [1967] V.R. 674, the Full Court said, at 674, that under what it described as "the long and well established practice" of the Court, the inability of an appellant to pay the costs of an appeal of a successful respondent could constitute special circumstances justifying an order that security for those costs be given by the appellant.

The second is that, in my view, the appellant's prospects of success in the appeal are, at best, doubtful. That is another factor that may be taken into account in determining whether an order for security for costs should be made (Commonwealth Bank of Australia v. Eise (1991) 6 A.C.S.R. 1, per Young, C.J. at 3, with whom Fullagar, J. agreed. See also Kiely v. Beneficial Finance Corporation Ltd (1991) 6 W.A.R. 521, 527). Given that his Honour has dismissed the appellant's application for an extension of time, it is likely that the Limitation of Actions Defence taken by the bulk of the respondents will succeed at trial. If that is so, the appellant will gain little, even if he succeeds ultimately in overturning his Honour's decision to stay the proceeding due to the appellant's want of prosecution. In any event the appellant has not been able to articulate any error which his Honour purportedly made in the exercise of his discretion in staying the proceeding for want of prosecution. As the appeal is against a decision made in the exercise of discretion, there is a strong presumption in favour of the correctness of his Honour's decision (Australian Coal & Shale Employees' Federation v. Commonwealth [1953] HCA 25; (1953) 94 C.L.R. 621, 627).

The grounds of appeal filed by the appellant are general, vague and uninformative. No differentiation seems to be made between alleged errors made by his Honour in respect of the extension of time application and in respect of the want of prosecution application. At para.22 of his notice of appeal, the appellant merely alleges that "the learned trial judge was in error in dismissing the proceeding for want of prosecution". But no specific error on the part of his Honour, whether of law or as to a finding of fact, has been identified in his notice of appeal. Put shortly, no specific reason is given for the contention that his Honour exercised his discretion wrongly. No material was put forward before his Honour seeking to justify the long period of delay in issuing and in prosecuting the proceeding. As to the latter, until the process of this Court known as L.S.G. was activated, thereby effectively forcing the appellant to proceed, no relevant step was taken by him to prosecute the case. Generally, the appellant has not identified any extraneous or irrelevant consideration to which his Honour gave weight or any relevant considerations to which his Honour failed to give weight. In my view, the result of his Honour's decision and orders cannot be said to be so unreasonable and plainly unjust so as to raise any inference that the exercise of discretion by him miscarried. Thus, in my view, it would be appropriate to make an order that the appellant provide security for the costs of the respondents of the proposed appeal.

Having decided that security should be ordered, there are two matters to be considered in determining the amounts in question. The first is whether security should be provided in respect of the costs that will be incurred for the whole of the appeal process, or whether they should be ordered only for part of it, say, up to the time when the appeal is set down for hearing, with the right being reserved for the respondents to seek at a later stage, further security in respect of the costs of the hearing of the appeal. In my view, the former course should be followed and security be ordered for the costs that will be incurred in relation to the whole of the appeal process. The alternative is likely to result in the incurring of further costs by the respondents when they make an application for security to cover the anticipated costs of the actual hearing. On the material presently available, it is unlikely that any such further costs that may be incurred by the respondents will be recovered from the appellant even if an order to that effect were to be made.

The second matter relates to the quantum of the security that is to be ordered. As to that issue, it is my view, notwithstanding the forceful arguments by Mr Beach, who appeared for the medical practitioner respondents and Mr Golombek, who appeared for the Government respondents, that the hearing of the appeal is unlikely to take more than one day, particularly bearing in mind that the appeal in relation to his Honour's decision on the Limitation of Actions point is incompetent. Hence, the estimated costs should be reduced accordingly. There should also be a broad considerable reduction in the item reflecting the costs of preparation. There are other items that are somewhat excessive and there should be a reduction in relation to them also. The learned presiding judge has averted to the fact that the medical practitioner respondents should not be separately represented on the appeal, or that, at the very least, very serious consideration should be given to joint representation. On the other hand, the amounts that I propose be provided as security for the costs of the medical practitioner respondents, take into account their right to engage silk. On that basis, and rounding off the relevant figures, I propose that the following orders be made:

(a) The appellant give security for the costs of the appeal in a form to the satisfaction of the Prothonotary to the following respondents in the amounts referred to below.

(i) In respect of the Government respondents, in the amount of $8,000.

(ii) In respect of the first respondent, in the amount of $8,000.

(iii) In respect of the 2nd, 12th, 13th and 20th respondents, in the amount of $8,000.

(b) Such security is to be provided on or before 4.00 p.m. On 5 November 1999.

(c) Unless such security is provided by the time referred to, the appeal against the above respondents in respect of whom security has not been provided as ordered, shall be dismissed with costs.

I mention in conclusion that it was contended by the appellant that it would be inappropriate to order security for costs given his state of impecuniosity. Regrettably, that is the very basis on which the application for security for costs is made. It was said, however, that this will have the effect of stifling the appeal. It was also submitted that no inference can be drawn from the material that the appellant has the capacity to borrow money in order to provide the security. I do not disagree with the latter submission and in the normal case I would probably hesitate before ordering that security be provided if the effect of that would be to stifle the appeal, although it is understood that that is often the inevitable consequence of security for costs being ordered. In this case, however, having regard to the view that I have taken as to the merits of the appeal, I remain of the opinion that the order for security as proposed by me shall be made.

I agree. I add only that it is not suggested nor was any authority cited to the contrary that the word "disability" appearing in both sections 23 and 23A of the Limitation of Actions Act should be given a meaning other than that given to the like expression in the English Act by Lord Denning in Kirby v. Leather [1965] 2 Q.B. 367 at 383-384.

I will pronounce orders, but counsel may suggest variations to them. It occurred to me that in fact under s.23 there is no question of leave being granted. As I would understand it, it is merely a part of the reasons, both before O'Bryan, J. and here, that the question should be resolved before the issue of giving an extension of time. Can anybody point out why there should be some such variation made to the summons? I would be grateful to know, but as I understand s.23, it is a section that simply states the consequence of there being a disability and any extension of time accordingly would be made out, although it was a necessary part of the arguments put forward both here and below that that matter be resolved first.

Mr Perkins, do you disagree with that? You don't get an extension as I read s.23. It is only s.23A that makes provision for an extension. Section 23 simply contains provisions relating to disability. That section itself enables one to plead by way of reply that the relevant period had not expired.

MR PERKINS: Yes, I do believe with respect that that is correct.

ORMISTON, J.A.: So I don't think it is necessary therefore to alter the summons.

ORMISTON, J.A.: I will just pronounce what the orders will be.

1. That the application of the appellant by summons filed 21 September 1999 be dismissed with costs.

2. On the application brought by summons filed 20 August 1999 by the 1st, 2nd, 12th, 13th and 20th respondents, order that the appellant give security for their costs of the appeal in a form and to the satisfaction of the Prothonotary as follows.

(i) In respect of the first respondent, in the sum of $8,000.

(ii) In respect of the other respondents to this application, in the sum of $8,000.

3. On the application brought by summons filed 20 August 1999 by the 6th-8th, 10th, 14th-19th, and 22nd-33rd respondents, order that the appellant give security for their costs of the appeal in a form and to the satisfaction of the Prothonotary in the sum of $8,000.

4. In each case, such security shall be provided on or before 4.00p.m. on 5 November 1999.

5. In each case, unless such security is provided by the time herein ordered, the appeal against those of the said respondents in respect of whom security has not been provided as herein ordered shall be dismissed with costs.

Those are the proposed orders. I haven't dealt with the costs of the security application. I have done with his costs of the other application.

[Discussion on the question of the costs of the applications ensued.]

I think, having regard to the way in which the particular application has been dealt with by the further attendance, that there should be an order for costs forthwith.

The sixth order will be that the costs of each application be paid by the appellant. I am not sure if it makes a huge difference in the end.

Are there any other matters as to the form of the terms of the order?

At a glance

Court

Decision date

Before

Source

Judgment (90 paragraphs)

Parties