Ballato v Pezzano, unreported; SCt of WA (Master Bredmeyer); Library No 940096; 24 February 1994

Bride v Hammond Fitzgerald & King, unreported; FCt SCt of WA; Library No 950054; 15 February 1995

Burgess v Stafford Hotel Ltd [1990] 1 WLR 1215

King v The Commercial Bank of Australia Ltd [1920] HCA 62; (1921) 28 CLR 289

Lavery v BSD Consultants Pty Ltd, unreported; FCt SCt of WA; Library No 940415; 8 August 1994

Retail Equity Ltd v Custom Credit Corp Ltd, unreported; FCt SCt of WA; Library No 8875; 23 May 1991

Scerri v Northam Holdings Pty Ltd [1967] VicRp 76; [1967] VR 674

Smail v Burton [1975] VicRp 76; [1975] VR 776

Wilson v Peisley (1975) 50 ALJR 207

M V Yorke Motors v Edwards [1982] 1 All ER 1024

I have had the advantage of reading in draft the reasons to be published by Wheeler J. I am entirely in agreement with those reasons and with the orders which her Honour proposes.

I have read in draft the reasons to be delivered by Wheeler J. I am in agreeement with those reasons and with the order proposed.

This is an application for security for the costs of an appeal, pursuant to O63 r10(5) of the Rules of the Supreme Court, which allows the Court to order security in "special circumstances".

The appellant was injured in a boating accident. He alleged at his trial that the respondent, the skipper of the vessel, was negligent in his manner of approach to a large wave. It was not in dispute that there had been injury suffered by the appellant in the incident. Negligence, however, was denied, and the extent of the injuries received by the appellant were in dispute, as was the amount of economic loss, if any, which had resulted from those injuries.

Briefly, the competing versions were as follows. The appellant said that the boat had been launched off the beach at Lancelin, on a fine and sunny day with excellent visibility. He had not taken much notice of the state of the sea. The respondent had been driving the boat and making conversation, looking back at two female passengers. The appellant went to the front of the boat to check an anchor, and was sitting or kneeling on the floor when the respondent called out, "What will I do?". There was a wave about three to four metres high about five metres from the boat at that stage bearing down upon them. The boat was just accelerated "flat out", he heard the sound of the motor screaming, the boat was in the air for a considerable time and then hit the water with a great impact. He fell out of the boat and suffered a variety of injuries. He alleged that the respondent should have seen the unusually large wave from a considerable distance away, that his decision to accelerate towards it rather than to turn away from it and make for the shore, or alternatively, to cut the motor and remain where he was, was the wrong decision. Alternatively, he said that having decided to accelerate towards the wave, the respondent did not reduce power as he was passing through the wave which led to the boat becoming airborne, causing injury.

The respondent's case was that there had been nothing unusual about the waves; there had then been a wave somewhat larger than the others; once the boat was passing over that larger wave, he had then seen a very much larger wave some fifty metres away just "feathering" or starting to curl at the top. He said he then briefly assessed the situation, still travelling in the direction of the wave, and that by the time the wave was approximately thirty metres away, it appeared to have changed its character and become very menacing, so that in order to avoid the danger of being swamped and capsized, it was necessary to accelerate towards the wave and to ensure the boat passed through it. He said that he did ease off power as they passed through the wave.

The expert witnesses called by the respondent took the view that he had been faced with a very difficult decision, and that he had taken what was probably the best of the available courses open to him. There were differences among the various witnesses concerning the desirability or possibility of the alternative courses of either "wait and see" or "turn and run" but it was agreed by the respondent's witnesses that the most important consideration was that it was imperative to avoid being swamped, and that the decision to accelerate had avoided that possibility.

There was clear difference between the appellant and his de facto on the one hand, and the respondent on the other, about the precise manner in which the accident occurred. There was difference also between the expert witnesses called on behalf of the appellant and those called on behalf of the respondent as to the most appropriate way of dealing with the situation in which the respondent found himself; those differences arose, to a degree, from the circumstances that the appellant's witnesses had based their view as to the correct course of action upon the appellant's version of the events preceding the accident, while the respondent's witnesses had based their views upon the respondent's account of those events.

Both as to the question of liability and as to quantum of damage, the learned trial Judge found against the appellant. It is clear from his Honour's reasons, and his Honour expressly observed, that there were "substantial issues of credibility" involved in the resolution of the issues at trial. His Honour's findings in relation to credibility were almost wholly adverse to the appellant, and this appears to have been a case in which the advantage of the trial Judge in observing the demeanour of witnesses would have been significant.

The difficulties in the way of an appellant in such a case have often been referred to: Devries v Australian Postal Commission (1993) 177 CLR 472. The evidence of the respondent, which his Honour preferred, was supported by the evidence of apparently well qualified experts which it was open to his Honour to accept. When his Honour came to make a provisional assessment of damages, he was concerned by late complaints about some injuries and by the lack of medical support for certain of the claims made. In addition, his Honour relied upon his observations of the appellant during the course of the trial and his general assessment of the credibility of the appellant.

The difficulty which the appellant faces in mounting a successful appeal in these circumstances is formidable. A further difficulty is that the grounds of appeal do not challenge certain findings of fact made by his Honour, while the argument as developed before us on his behalf was based on assumptions of fact inconsistent with those findings. Although, for example, his Honour found that the respondent had been 30 metres away from the unusually large wave in question when he began to accelerate towards it, the argument before us persistently assumed that the relevant distance was 50 metres. Even if the grounds of appeal were appropriately amended, it is not easy to see how those findings of fact could be successfully challenged.

The appellant described himself at trial as impecunious, and by an affidavit sworn 23 July, he deposes that he is in receipt of a disability pension, has no assets of a substantial nature, and is unable to raise any money by borrowing. Impecuniosity of an appellant may constitute a "special circumstance" justifying the making of a security for costs order, although of course it will not invariably be appropriate to make such an order in the case of an impecunious appellant. In particular, considerations of frustration of an arguable appeal may militate against the making of an order: Lall v 53-55 Hall Street Pty Ltd [1978] 1 NSWLR 310 at 313, Rhodes v Banzo Pty Ltd, unreported, FCt SCt of WA; Library No 950373; 15 June 1995.

Balancing the relevant factors in this case, I note that this is not an appeal concerning any important point of general principle, or the liberty of any person, or, on his Honour's findings, any serious injury. It is clear that the appellant is impecunious, and it is equally clear that there are substantial difficulties in the way of overturning the decision of which the appellant complains. In my view, in this case, it is appropriate to order security for costs. As to the amount of the security, the appellant did not dispute the respondent's estimate, supported by a draft bill, of costs in the order of $16,790. In my view it would be appropriate to order that within seven days from the date of this order, the appellant give security for the respondent's costs of the appeal in the sum of $16,000 and that the appeal be stayed pending payment into court of the security so ordered.

In addition to the application for security for costs, the respondent applies to strike out the appellant's notice of appeal pursuant to O63 r2.

Grounds 1 and 2 of the grounds of appeal are as follows:

"1 The learned Trial Judge erred in making a provisional award of damages which was below an amount which would be awarded had the learned Trial Judge exercised a sound discretionary Judgment.

2 The learned Trial Judge erred in failing to find that the Respondent (Defendant) was negligent."

The difficulty with ground one is that it is not clear whether the award is challenged on the basis that it is accepted that only general damages are in issue and asserted that the amount is too low, or whether it is asserted that his Honour should have awarded damages in addition to the damages which he awarded for loss of amenity, or both. Ground 2 amounts to no more than a general assertion that the trial Judge was wrong. This is clearly inadequate. Both of these grounds should, in my view, be struck out due to their lack of particularity.

The other grounds of appeal fall into a somewhat different category. Paragraph 3 asserts that, having made certain findings, the learned trial Judge erred in failing to find that it followed from these findings that the respondent was negligent. On its own, the ground tends to suggest that it is argued that a finding of negligence must inevitably follow from those facts, in isolation. However, as it emerged in argument, it appeared that those facts were relied upon in conjunction with para 4, which refers to an alleged failure by his Honour to give "any or any sufficient" weight to the evidence of four named witnesses as to the way in which a vessel should negotiate a wave of that type, together with para 6, which refers to an alternative approach to that taken by the respondent.

Paragraph 4, as I have noted, refers to a failure to give any or any sufficient weight to the evidence of the witnesses "as to how a vessel should negotiate a four metre wave in a channel when it is seen from a distance of 50 metres away". However, it does not give any indication of what aspects of the evidence of those witnesses his Honour failed to give weight to, nor what the result of according appropriate weight to that evidence would have been. It appears when one reads later grounds 6 and 7, that they are directed to the findings as to the more desirable alternative approaches which would have followed had his Honour accepted the evidence of those witnesses.

Ground 5 asserts that his Honour erred in finding that the respondent was not negligent in "powering into" the wave in the circumstances set out in that paragraph. It is not clear from that paragraph alone why his Honour erred in arriving at that finding, although the reference to certain witnesses in ground 4 and to alternative approaches in grounds 6 and 7 presumably are intended to support that allegation.

Grounds 6 and 7 effectively assert that his Honour erred in failing to find that the respondent was negligent in not taking certain action which, it is alleged, would have been preferable. It is not clear, looking at these grounds, why they are separate grounds and it is not clear from these grounds on their own why his Honour should have made such a finding, although a reading of the surrounding grounds assists in understanding how that assertion is made.

Paragraphs 8 and 9 of the notice of appeal are not the subject of complaint.

Paragraph 10 alleges that his Honour erred in failing to give "any or any sufficient" weight to certain inconsistent statements made by the respondent, although it does not identify the aspects of the inconsistency which are relevant.

As I understood the respondent's submissions, in broad terms the paragraphs in the notice of appeal complained of are said not to particularise adequately the manner in which it is said his Honour erred. So far as grounds 4 and 10 are concerned, in my view there should be some concise identification of the aspects of the evidence to which his Honour should have had regard in relation to those paragraphs. However, as to the remaining grounds, in my view what is required is not greater particularity but greater clarity. It may well be that if the grounds are read as a whole against the background of his Honour's decision, all of the matters which the appellant seeks to raise are contained within the notice of appeal. The difficulty with the notice as it is presently framed is that it is not possible to identify the way in which the various paragraphs relate to each other, and the extent to which the various paragraphs of the notice of appeal are relied upon as independent and separate grounds rather than inter-related. If they are inter-related, they are difficult to follow in that it is not possible to perceive why, for example, aspects of alternative courses open to the respondent are referred to variously in grounds 4, 6 and 7, while allegedly negligent actions on the part of the respondent are raised variously in grounds 3, 5 and 8, particularly when it is to be noted that there is clear overlap between these grounds.

In my view an appropriate principle in respect of grounds of appeal is, as Denning LJ (as he then was) observed in Sanson v Sanson [1956] 1 WLR 945:

"It is not intended that there should be elaborate grounds of appeal set out at great length. They should be short and simple. ... the grounds of appeal should state the broad issues that are to be raised in the appeal, but should not go into the detailed reasons in support of them; otherwise there will be additional expense and delay."

I would add of course, that the rule also serves the purpose of ensuring that a respondent knows the case which it must meet on the appeal. However, unlike the position prior to trial, when issues are clarified by pleadings, once the trial process is complete and reasons for decision have been delivered, relevant issues will have been narrowed and clarified, so that grounds of appeal do not require the detail and particularity of pleadings.

Applying these principles, it is my view that paragraphs 3 to 7 and 10 of the notice of appeal are defective in their organisation, but generally not in their want of detail, except in the respects I have indicated in relation to grounds 4 and 10. They require reorganisation so as to present in some logical sequence the manner in which it is alleged his Honour erred.

I would therefore strike out those grounds of appeal. I would however, be prepared to grant leave to amend.