Collie (Resp) v Motor Accident Commission (Appl) No. Scgrg-99-886 Judgment No. S468

[1999] SASC 468

COLLIE (Resp)  v  MOTOR ACCIDENT COMMISSION (Applicant)
[1999] SASC 468

Civil

1. MULLIGHAN J     This is an application by the respondent to an appeal listed to be heard by the Full Court for an order that the appellant provide security for the respondent's costs of that appeal in the order of about $8,000. 

2. The appellant has appealed against a judgment of a judge of the District Court given on 8 July 1999, dismissing his action for damages for personal injuries following a road accident on 15 May 1993.  The appeal was lodged one day late, but that is not a matter of any significance for present purposes. 

3. Shortly after the appeal was lodged, the respondent's solicitors made it plain that the respondent sought security for costs with respect to the appeal, and that claim was repeated subsequently in the month of August.  The appellant may be regarded as unable to provide adequate security for costs and in that sense, is impecunious. 

4. The application is brought pursuant to rule 95.13(b) of the Supreme Court rules 1987, which provides that the court may make an order for security for costs of an appeal if there are special circumstances. The special circumstances in this case are said to be that the appellant has no real prospects of success in the appeal, and his impecuniosity. It is said that the respondent has no protection in costs in what I understand to be alleged to be a totally unmeritorious appeal.

5. The respondent contends that the trial judge made adverse findings of credibility against the appellant and his witnesses, with the consequence that the action was dismissed.  In short, the appellant said that he was the passenger on a motorcycle which crashed due to the negligence of the rider, and the trial judge found that the appellant was in fact the rider. 

6. So it is said that because the decision was based on findings of credibility adverse to the appellant and his witnesses, that the appeal could not succeed. 

7. On this application I have not heard all of the argument in favour of, and against, the appeal on the merits, but Mrs Shaw QC, who has appeared for the appellant disputes that proposition and contends that there is an arguable case on appeal and has set out the bare basis of that argument. 

8. In my view this is not the sort of case where the court prior to the hearing is able to say that the appeal must fail.  The next matter which I regard of significance is that a member of the senior bar has expressed the opinion that there is merit in the appeal.  As I understand that assertion it is not of course an assertion that the appeal will succeed, but merely that there is merit in argument which may be advanced on behalf of the appellant.  Pausing here, these matters do not permit in my view a conclusion that there are special circumstances which would justify an order for security of costs. 

9. I have been referred to a number of authorities which I need not now mention.  I accept as trite propositions that a party is not to be kept out of an appeal merely because of impecuniosity.  The granting of an order for security of costs in the present circumstances assuming there were special circumstances would involve the exercise of a discretion.  This application is made late; it is made less than two weeks before the appeal is to be heard.  The application was served on the appellant or at least came to the notice of his solicitor eight days before the appeal is due to be heard. 

10. Mr Livesey appears for the respondent and has explained the reason why the application has been brought late.  I accept that explanation.  Notice of it was given as I have said, but the application was not brought because there was a flurry of activity by the solicitors to prepare the appeal books and to resolve dispute as to what should be contained in them.  There is to be no criticism of the respondent's solicitors in bringing the application at a late stage, but the fact of the matter is that it has been brought and brought on for hearing, not only shortly before the appeal is due to be heard, but also after substantial costs have been incurred by the appellant in the preparation of the appeal books, in the briefing of counsel and no doubt in other respects.  Also, the court has set aside time for the appeal and counsel have done likewise. 

11. I think that is a matter which would tend against an order in the exercise of discretion.  I refuse the application.  The respondent is to pay the appellant's costs of this application and I certify the matter as fit for counsel. 

12. Mr Livesey has made what I regard as an oral obligation that the costs which the appellant is obliged to pay to the respondent pursuant to an order made in the District Court and the costs which the respondent is now obliged to pay to the appellant of this application, be set off.  I adjourn that application for further consideration should the need arise.  Of course it follows that if the appellant was successful in the appeal there would be no need to consider such an application.