Chalacas v Central Motors, Reeves & FAI General Insurance

[1996] QCA 432

[1996] QCA 432

COURT OF APPEAL

FITZGERALD P
DAVIES JA
DERRINGTON J

Appeal No 7264 of 1996

NICK CHALACAS  Respondent (Appellant)

v

CENTRAL MOTORS  (First Respondent)

MICHAEL REEVES  (Second Respondent)

FAI GENERAL INSURANCE  Applicant (Third Respondent)

BRISBANE

DATE 28/10/96

DAVIES JA:  The applicant who is the respondent to an appeal in this Court and who was a defendant by election in an action for damages for personal injuries in the trial division of this Court seeks an order the respondent to the application, the appellant in that appeal, provides security for costs of his appeal in the sum of $4,800 and- for some consequential orders.

In the action the learned trial Judge gave judgment for the respondent to this application for $600 with costs on the Magistrates Court scale up to 5 July 1994 and ordered that the respondent pay the applicant's since 5 July.

The result of these orders is the respondent owes the applicant approximately $29,000 in costs.  In his action the respondent had sought substantial damages on the basis that he had numerous injuries and disabilities in consequence of a motor vehicle collision which gave rise to his course of action.

The learned trial Judge rejected the respondent's evidence saying:

"In my judgment Mr Chalacas is a person whose evidence cannot be accepted.  I thought he exaggerated wildly for much of the time while giving his evidence and much of what he said was unreliable.  He was imprecise and contradictory in much of what he said.  Twice he reached a position where he was obliged to claim privilege against self incrimination in order to avoid answering questions which were put to him."

His Honour went on to say that he was satisfied that the respondent did not suffer from most, if not all, of the ailments which he presently claimed to suffer.  He was further satisfied that he no longer suffered from anything which could possibly be attributed to a subject accident.

He concluded that there was simply no acceptable evidence before him once he put aside the respondent's evidence which could support a finding of a subject accident continued to have any effect at all upon the respondent's condition.

His Honour said that his mind fluctuated on whether the subject accident caused the respondent any injury at all.  In the end he was able to infer that the respondent suffered some temporary bruising to his chest and abdomen from the effect of a seat belt which His Honour inferred the respondent was wearing.

However, His Honour was of the view that such bruising would have cleared up within a matter of weeks to a few months.  It was for this that His Honour ordered the sum of $600.  It is plain that to have awarded any greater damages to the respondent the learned trial Judge would have to have accepted the respondent's own evidence at least in part.

It is also plain that His Honour was completely justified in rejecting that evidence.  It is unnecessary here to refer to those cases which state the very limited circumstances in which findings of fact based on credibility may be overturned on appeal.

Clearly, those circumstances do not exist here.  There is not realistic possibility that the learned trial Judge's findings to which I have already referred would be overturned by this Court on appeal.

It follows that the respondent's prospects of success on appeal are remote.  The respondent had previously pursued and lost an action for damages for personal injuries, in the Supreme Court of South Australia arising out of an accident said to have occurred three or four years before the subject accident.  He appears to see these proceedings as pursuing some sort of conspiracy involving doctors who gave reports in respect of the earlier and this accident.

The respondent is an undischarged bankrupt.  There is therefore no realistic possibility in the likely event that this appeal will fail of the applicant being able to recover against the respondent either the amount of $29,000 already referred to or the costs of this appeal estimated at $4,800.

A litigant however poor should not ordinarily be precluded from seeking to enforce his or her rights in a Court of law notwithstanding that the consequence may be that the successful defendant will have no reasonable prospect of recovering costs against that plaintiff.

However, as has been pointed out on previous occasion, once those rights have been adjudicated upon and the reasons for judgment can be seen and assessed by an Appellate Court the position is different.

Here in the circumstances which I have already outlined, to allow the matter to proceed to appeal without the applicant being protected for its costs is likely to result in grave injustice to the applicant.

I would accordingly order that the respondent appellant be ordered to give security for the applicant/respondent's costs of the appeal in the sum of $4,800 to the satisfaction of the Registrar and that in the meantime all proceedings in the appeal be stayed.  I would also order the respondent pay the applicant's costs of this application.

I would also order that the amount of security be provided with 28 days from today's date and that if it is not provided within that time that the applicant be at liberty to apply to a single Judge of the trial division of this Court to have the appeal struck out.

THE PRESIDENT:  I agree.

DERRINGTON J:  I agree.

THE PRESIDENT:  The orders will be as indicated by Justice Davies.