Con Michos v Eastbrooke Medical Centre Pty Ltd
[2019] VSCA 282
•29 November 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0083
| CON MICHOS | Applicant |
| v | |
| EASTBROOKE MEDICAL CENTRE PTY LTD | Respondent |
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| JUDGES: | EMERTON JA and KENNEDY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 November 2019 |
| DATE OF JUDGMENT: | 29 November 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 282 |
| JUDGMENT APPEALED FROM: | [2019] VSC 437 (Richards J) |
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PRACTICE AND PROCEDURE – Costs – Application by respondent for security for costs – Impecunious applicant - Low prospects of applicant’s appeal succeeding – Applicant ordered to provide security for costs in the amount of $20,000 – Supreme Court (General Civil Procedure) Rules 2015 r 64.38(4) – Bodycorp Repairers v Oakley Thompson & Co Pty Ltd (No 3) [2016] VSCA 185, applied; Delta Electricity v Blue Mountains Conservation Society Inc (2010) 176 LGERA 424, distinguished.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Mr T P Warner | Allens |
EMERTON JA
KENNEDY AJA:
The applicant has applied for leave to appeal a decision made by Richards J on 28 June 2019 to dismiss a number of notices of appeal against the orders of Ierodiaconou AsJ.[1] The applicant has at all times represented himself.
[1]Michos v Eastbrooke Medical Centre Pty Ltd [2019] VSC 437 (‘Reasons’).
The respondent seeks security for the costs of the application for leave to appeal.
For reasons given below, we have determined that an order for security will be made.
Background[2]
[2]This background is based on the helpful summary provided by the Court of Appeal in Michos v Eastbrooke Medical Centre Pty Ltd [2019] VSCA 140 at [1]-[16].
On 1 November 2016, the applicant requested the Transport Accident Commission (‘TAC’) to fax a psychiatric report relating to his claim for compensation to the respondent so that he could pick it up from its premises.
On 4 November 2016, the respondent informed the applicant that he would need to make an appointment with one of its doctors in order to obtain the psychiatric report. An appointment was made for 15 November 2016, which did not proceed. That is because, also on 4 November 2016, the applicant informed the respondent that he had been able to arrange for the psychiatric report to be sent to another medical practice, which had provided the report to him that afternoon.
Notwithstanding that the applicant had obtained the psychiatric report from another medical practice, he sought to challenge the respondent’s conduct in refusing to provide the report to him without a medical appointment. He made a formal complaint to the respondent’s business manager and then to the Health Complaints Commissioner (‘Commissioner’). He asserted that the respondent’s conduct constituted a breach of the access provisions in pt 5 (ss 25–44) of the Health Records Act 2001 (‘HRA’).
The Commissioner recommended that the respondent change its policy of always requiring a medical consultation before releasing health information to a client, and the respondent agreed to do so. The Commissioner declined to consider the applicant’s complaint any further. Pursuant to s 65 of the HRA, the applicant requested the Commissioner to refer his complaint to the Victorian Civil and Administrative Tribunal (‘VCAT’). In his application before VCAT, the applicant claimed compensation for the respondent’s alleged breach of the HRA.
On 21 December 2017, VCAT dismissed the applicant’s complaint.[3] It held that the access provisions of the HRA were not engaged and that, even if the access provisions were engaged, the respondent did not breach them because his request for access had lapsed on 4 November 2016 (when he informed the respondent that he had obtained the psychiatric report from another medical practice).[4]
[3]Michos v Eastbrooke Medical Centre Pty Ltd [2018] VCAT 119 (‘VCAT decision’).
[4]VCAT decision [65], [68].
The applicant applied to the Trial Division for leave to appeal against VCAT’s decision. The applicant also applied for a protective costs order (‘PCO’) under s 65C(2A) of the Civil Procedure Act 2010 (‘CPA’).[5] This provides that the Court may ‘fix or cap recoverable costs in advance.’
[5]By summons filed 28 February 2018.
On 6 September 2018, the Associate Judge granted the applicant leave to appeal on limited grounds.[6] We shall refer to this proceeding as ‘the VCAT appeal’.
[6]Michos v Eastbrooke Medical Centre Pty Ltd [2018] VSC 517 [3]. These were whether VCAT erred in law by construing (a) s 25 of the HRA with reference to the phrase ‘necessary for one or more of its functions or activities’; and (b) the question of whether a request for access lapses to be relevant to the obligations in s 34(2)(c) of the HRA.
On 30 January 2019, the Associate Judge refused to make a PCO.[7]
[7]Michos v Eastbrooke Medical Centre Pty Ltd (Ruling No 2) [2019] VSC 13.
On 12 February 2019, she further dismissed an application for an adjournment of the hearing of the VCAT appeal on the basis of a proposed appeal against the refusal of the PCO. In so doing she also ordered the applicant to pay the costs of the application. She recorded that the parties were ready for trial and that the PCO did not go to the heart of the issues in dispute.[8]
[8]Order of Ierodiaconou AsJ in Con Michos v Eastbrook Medical Centre (Supreme Court of Victoria, S CI 2018 00633, 12 February 2019) recitals J-K.
During February 2019, the applicant then appealed the decisions of the Associate Judge:
·refusing the application for a PCO on 30 January 2019 (the first matter); and
·refusing the application to adjourn the hearing of the VCAT appeal on 12 February 2019 (the second matter).
The VCAT appeal was heard by Justice Richards on 19 February 2019. At that time, the applicant renewed his earlier application made on 12 February 2019 for an adjournment on the basis that he was in the process of appealing the decision to refuse the PCO.
Richards J refused the adjournment, highlighting, inter alia, that there was no advantage in an adjournment being granted given the costs of that day had already been incurred. Further, she stated that she would ensure that the PCO appeal was listed before her and would not make a costs order in the VCAT appeal until the PCO appeal was dealt with.[9]
[9]A transcript of these reasons are extracted at Reasons [30].
On 7 March 2019 Richards J ultimately held that VCAT had misconstrued the access provisions of the HRA and so allowed the VCAT appeal in part, but also found that VCAT had correctly decided that the respondent had not breached the access provisions due to the withdrawal of the applicant’s request. She held that it was open to VCAT to find that the applicant withdrew his request for access to the psychiatric report so that his right to access under s 34(2)(c) of the HRA effectively lapsed. She thereby affirmed the VCAT decision.[10]
[10]Michos v Eastbrooke Medical Centre Pty Ltd [2019] VSC 131.
On 18 March 2019, (after determination of the VCAT appeal) the applicant filed an application for an extension of time to appeal the decision of the Associate Judge on 6 September 2018 granting him limited leave to appeal the VCAT decision (the third matter).
On 8 April 2019, the applicant applied for leave to appeal against the decision of 7 March 2019 (the determination on the VCAT appeal), and, on 30 May 2019, applied to ‘render nugatory’ the decision, as well as applying for a stay and a protective costs order (the ‘first appeal’).
On 21 June 2019, in the first appeal, the Court of Appeal determined that the applicant’s applications for a stay and a protective costs order be refused, and ordered the applicant to provide security for the respondent’s costs in the amount of $20,000.[11]
[11]Michos v Eastbrooke Medical Centre Pty Ltd [2019] VSCA 140.
On 28 June 2019, Richards J dealt with each of the three matters the subject of appeal from the Associate Judge (the first matter, the second matter and the third matter), as well as the question of the costs of the VCAT appeal. In the result, Richards J determined that the appeals should be dismissed and the application for an extension of time to appeal the decision made on 6 September 2018 should also be dismissed. She made a costs order in the VCAT appeal against the applicant (though not on an indemnity basis as sought).
On 2 August 2019, the first appeal was dismissed as a result of the applicant’s failure to provide the security ordered.
On 7 August 2019, an application for leave to appeal the 28 June 2019 decision (dismissing the appeals from the Associate Judge) was issued.
On 6 September 2019, the respondent sought security from the applicant (which was not provided).
This application for security was then filed on 18 September 2019.
Whether security ought be granted
The Court has power under r 64.38(4) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) to make an order that security be given for the costs of an application or appeal on such terms as the Court thinks fit. The power to order security for costs involves an exercise of discretion. In Bodycorp Repairers v Oakley Thompson & Co Pty Ltd (No 3), McLeish JA helpfully listed a number of factors as relevant to the exercise of this discretion as follows:
The power of the Court to order security for costs involves an exercise of discretion. Various factors have been identified as relevant to the exercise of that discretion, including the prospects of success of the appeal, the magnitude of risk that a costs order would not be satisfied, whether the making of the order would be oppressive in that it would stifle a reasonably arguable claim, whether any impecuniosity of the appellant arises out of the conduct complained of in the proceeding, and whether there are aspects of the public interest which ought to be weighed in the balance.[12]
[12][2016] VSCA 185 [19] (citations omitted). In the first appeal at [61], Kyrou and T Forrest JJA also considered McLeish JA’s list of factors from Bodycorp Repairers v Oakley Thompson & Co Pty Ltd (No 3) [2016] VSCA 185 to be a useful framework for considering the application.
Impecuniosity
It was common ground that the applicant is impecunious. In fact, the applicant’s primary submission was that an order for security would stifle a good claim, since he would not be able to meet any costs order that was made against him on appeal.
However, an appellant’s inability to pay a successful respondent’s costs of an appeal may itself justify an order that security for costs be given.[13] This is because, at the appellate level, there has already been a determination adverse to the appellant who has ‘had his day in court’.[14]
[13]Scerri v Northam Holdings Pty Ltd [1967] VR 674, 674.
[14]Actors Workshop Pty Ltd v Harrison [2014] QCA 92 [32]-[33].
In present circumstances, where there is an extremely high degree of risk that a costs order will not be satisfied, this factor alone justifies an order for security. However, we will also consider the other factors, below.
Prospects of success
In considering the applicant’s prospects of success on appeal to this Court, it is significant that the proposed grounds of appeal largely relate to interlocutory decisions made in the exercise of a discretion. Insofar as this was the case, the applicant needed to demonstrate error of the type described in House v The King.[15]
Ground 1
[15]House v The King (1936) 55 CLR 499 [505].
Ground 1 was as follows:
Whether her Honour erred in failing to find that under section 65C(2)(d) and/or section 65C(2A) of the Civil Procedure Act 2010 the Honorable Associate Justice Ierodiaconou erred in law by failing to determine the Applicant’s protective costs order application in advance of hearing and determining the leave to appeal application against the Tribunal’s decision.
The respondent suggested that the applicant only took steps to press his application for a PCO when the Associate Judge handed down her decision on the leave question on 6 September 2018. Further, that the solicitor for the respondent was not aware of any request or submission made by the applicant that the determination of his PCO application should precede determination of whether he would be granted leave to appeal the VCAT decision.
However, the applicant submitted that he sought the PCO at the commencement of the proceeding and raised the PCO for consideration at the first directions hearing on 14 March 2018. He also emphasized that s 65C(2)(d) of the CPA provides that a court may fix or cap recoverable costs ‘in advance’ and relied on various statements in the decision on the first appeal that the phrase ‘in advance’ in s 65C(2)(d) of the CPA indicates that such orders are ordinarily made at an early stage.
In oral submission, he claimed that he had said that he needed the PCO application determined early otherwise he was ‘not going to proceed.’ He also claimed that he was exposed to ‘hundreds of thousands of dollars in costs’ and that he never had an opportunity to make an informed decision as to whether to proceed with his appeal.
As will be seen, below, both grounds 1 and 2 relate to the timing of the consideration of the PCO application. Given that the PCO was ultimately refused, the timing of that refusal can have no consequence save insofar as the applicant suggests that he may not have proceeded with the VCAT appeal if the issue had been resolved earlier. Thus, the grant of a PCO will enable the person who has the benefit of it to proceed with the litigation secure in the knowledge that they are not exposed on costs. On the other hand, an unfavourable decision will enable that person to make an informed decision whether to proceed further, knowing that they are exposed to a costs order in the event that they are unsuccessful.[16]
[16]Michos v Eastbrooke Medical Centre Pty Ltd [2019] VSCA 140 [25].
However, the evidence before us suggests that the applicant intended to pursue his appeal from VCAT regardless of the outcome of the PCO application, whether or not the PCO application was determined prior to the leave application. He persisted with the appeal in February 2019 even though the PCO application had been refused (on 30 January 2019).[17] There is no utility in ground 1 in circumstances where the timing of the hearing of the PCO application is of no consequence.
[17]This was highlighted by both the Trial Judge and the Associate Justice: see Reasons [28], [31].
In any event, ground 1 also appears to raise no substantive error. Rather, it was open for the Associate Judge to determine the precise scope of the appeal prior to considering whether a PCO was appropriate. Indeed, s 65C(2A)(b) of the CPA provides that the Court may consider the complexity of the factual or legal issues raised in the proceeding in determining whether a PCO will be granted.
The applicant has therefore failed to identify any error.
Ground 2
Ground 2 was as follows:
Whether her Honour erred in law, under section 65C(2)(d) and/or section 65C(2A) of the Civil Procedure Act 2010 by failing to hear and determine the Applicant’s appeal against the order of the Associate Judge refusing a protective costs order, prior to hearing and determining the substantive appeal against the Tribunal’s decision.
The respondent submitted that it was an abuse of process for the applicant to pursue this ground given it raised a matter which had already been dismissed in the first appeal.
The applicant relied on similar matters as he raised in relation to ground 1, and emphasized that he requested an adjournment on 12 February 2019, and also before Richards J on 19 February 2019.
Again, this ground does not appear to raise an issue of any consequence given the applicant has pursued the VCAT appeal (before Richards J, and further on appeal from Richards J) notwithstanding that his PCO application was refused. The evidence does not support his contention that he would have abandoned his appeal if his appeal on the PCO decision had been determined earlier.
It was also somewhat unclear as to whether ground 2 seeks to challenge the decision of Richards J to refuse the adjournment on 19 February 2019 or the decision of Richards J on 28 June 2019 to dismiss the appeal from the Associate Judge (who had earlier dismissed an application for an adjournment on 12 February 2019). Insofar as it was the latter, we see no error in the analysis of Richards J that the orders of the Associate Judge were effectively ‘spent’ given the decision of Richards J of 19 February 2019 (refusing the adjournment) effectively overtook the earlier decision.[18] Insofar as it is the former, the decision made on 19 February 2019 was not part of this appeal (which is an application for leave to appeal the decision of 28 June 2019).
[18]Reasons [48].
The ground as framed is also substantially identical to ground 6 raised in the substantive case on the first appeal.[19] Given the subject matter of this ground was dealt with in a former proceeding (the first appeal), a serious question arises as to whether it would be an abuse of process to permit this ground to be raised again (even if not, strictly, res judicata).[20]
[19]Pursuant to order 1 of the orders of the Court of Appeal on 21 June 2019 the applicant was given leave to add the following ground 6: Her Honour erred in law, and her decision should be set aside, on the basis that her failure to hear and determine the applicant’s appeal against the order of Ierodiaconou AsJ refusing to make a protective costs order, prior to hearing and determining the substantive appeal against the Tribunal’s decision, deprived the applicant of an opportunity to make an informed decision whether to proceed with the substantive appeal.
[20]See, eg, Kermani v Westpac Banking Corporation (2012) 36 VR 130 [97]; Velissaris v Dynami Pty Ltd [2013] VSCA 299.
In any event, the applicant has again failed to identify how any error arises. First, although it may generally be desirable to determine an application for a PCO at an early stage, the Associate Judge had determined the application prior to the hearing of the substantive appeal before Richards J. Secondly, insofar as the applicant is challenging the decision of Richards J to refuse the adjournment on 19 February 2019, we have read a transcript of her reasons and can find no error.[21] In particular, it is significant that a determination of costs orders in the VCAT appeal was to be deferred until the PCO appeal was dealt with. In this way, there would be no exposure to costs on the VCAT appeal prior to a consideration of the PCO appeal.
[21]Extracted in Reasons [30].
Ground 3
Ground 3 was as follows:
Whether her Honour erred by determining that an application for a protective costs order under sections 65C(2)(d) and/or 65C(2A) of the Civil Procedure Act 2010 is a usual order as to costs and subject to section 17A(2) of the Supreme Court Act 1986 and therefore requiring leave to appeal from an Associate Judge.
The essence of the applicant’s complaint appeared to be that Richards J erred in finding that an application for a PCO was a ‘usual order as to costs’ and subject to s 17A(2) of the Supreme Court Act 1986. In oral submission, he highlighted that the person who made the decision can also grant the leave required by s 17A. Further, he submitted that PCOs are unlike ‘ordinary costs orders.’
Sub-section 17A(2) of the Supreme Court Act 1986 provides as follows:
17A Restriction on appeals
…
2.Subject to subsection (2A), an order made by the Trial Division constituted otherwise than by a Judge of the Court –
(a) by consent of the parties; or
(b) as to costs which are in the discretion of the Trial Division –
is not subject to appeal to the Trial Division constituted by a Judge of the Court except by leave of the Trial Division constituted by a Judge of the Court or by leave of the person constituting the Trial Division which made the order.[22]
[22]Emphasis added.
The provision does not use the expression ‘usual’ or ‘ordinary’; rather it applies to any order ‘as to costs.’ Richards J was therefore correct to find that a refusal to make a PCO was an order ‘as to costs’ which required leave (which she did not give).[23]
[23]Reasons [11].
It does not assist the applicant that the person making the decision could give leave, since there was no evidence that the Associate Judge did so.
Finally, even if leave was not required, given Richards J was not satisfied that the applicant had demonstrated any error, ground 3 raises no issue of substance.
Ground 4
Ground 4 was as follows:
Whether her Honour erred by misjudging the public interest in the matter.
The applicant submitted that there was a public interest in enabling people to properly understand their rights under the HRA and that Richards J’s finding that it was not ‘public interest litigation’ was contrary to the findings of the Court of Appeal.
In oral submission, he highlighted that this was the first time s 65C of the CPA was the subject of challenge. He also sought support from the decision of the New South Wales Court of Appeal in Delta Electricity vBlue Mountains Conservation Society Inc,[24] as well as a High Court case cited therein of Singer v Berghouse.[25] He submitted that these cases raised a ‘different test.’
[24](2010) 176 LGERA 424 on appeal from the decision of the New South Wales Land and Environment Court in Blue Mountains Conservation Society Inc v Delta Electricity (2009) 170 LGERA 1 (‘Delta’).
[25](1994) 181 CLR 201, 212.
The issue considered by Richards J was whether the Associate Judge had made some error in considering ‘whether there is a public interest element to the proceeding’ under s 65C(2A)(f) of the CPA in refusing the application for a PCO. The Associate Judge had found that, whilst the appeal raised some issues of public importance regarding statutory clarification, they were not of any great significance.[26]
[26]Michos v Eastbrooke Medical Centre Pty Ltd Ruling (No 2) [2019] VSC 13 [49].
Richards J stated:
As the associate judge found, the statutory construction questions on which she granted leave to appeal were of some public importance. However, the substance of the dispute between Mr Michos and the Clinic was not. It was a minor disagreement between an individual patient and a private medical clinic about access to a medical report, which involved some temporary frustration and inconvenience for Mr Michos. He obtained a copy the report through another clinic only a few hours after requesting access from the Clinic. Once the Clinic had agreed to amend its policy, as suggested by the Health Complaints Commissioner, his complaints had largely been resolved. It is difficult to see that there was any public interest served by escalating the dispute to the Victorian Civil and Administrative Tribunal and then to this Court.
I am not persuaded that there was any error in the associate judge’s consideration of the public interest element in the proceeding. She correctly identified the public interest in clarifying the relevant provisions of the Health Records Act. She did not consider these issues to be of any great significance, an assessment that I share in the circumstances of this case.[27]
[27]Reasons [23]-[24].
We see no error in this approach. Nor did the applicant identify any construction issue of public significance as he alleged.
The findings of this Court in the first appeal also do not assist the applicant. To the contrary, in the context of the application for a PCO, their Honours did not discount a public interest element, but were not satisfied that any such public interest was ‘significant’ given the low prospects of success of the appeal.[28] There was nothing further to assist the applicant when the Court again considered the public interest in the context of the application for security. Rather, their Honours accepted the respondent’s submission that the applicant had already ‘had his day in court.’[29] They also found that, although there was a public interest in clarifying the issue of access rights, the same public interest considerations did not apply in relation to the withdrawal of the request for access.[30]
[28]Michos v Eastbrooke Medical Centre Pty Ltd [2019] VSCA 140 [50].
[29]Ibid 140 [81].
[30]Ibid [83]-[84].
Finally, the decision of Delta Electricity v Blue Mountains Conservation Society Inc,[31] is clearly distinguishable in that it raised a public interest element which justified the making of a PCO. Thus, as identified by Richards J,[32] Delta involved enforcement proceedings under environmental protection legislation in which a conservation group alleged that the owner of a power station was polluting a drinking water catchment which flowed into Warragamba Dam, the source of Sydney’s water supply.
[31]Delta Electricity v Blue Mountains Conservation Society Inc (2010) 176 LGERA 424.
[32]Reasons [21].
Insofar as the applicant sought to rely upon a ‘different test’ there was a lack of clarity as to what was advanced. Insofar as he raised an issue as to the approach on appeal, the majority in Delta noted that the power was discretionary such that the challenge should be subject to constraints of the kind correctly identified by Richards J.[33] Insofar as he raised a particular issue applicable to the grant of the PCO, the relevant environmental legislation in Delta made specific provision for rules which diminished an expectation that a respondent would ultimately be entitled to receive its costs if successful.[34] No such provisions are applicable in this case.
[33]Delta Electricity v Blue Mountains Conservation Society Inc (2010) 176 LGERA 424 [178] per Basten JA (MacFarlan JA agreeing) citing Singer v Berghouse (1994) 181 CLR 201, 212.
[34]Delta Electricity v Blue Mountains Conservation Society Inc (2010) 176 LGERA 424 [203].
Overall, then, the prospects of success of ground 4 also appear to be very weak.
Ground 5
Ground 5 was as follows:
Whether is it fair and just for the Applicant to be refused an extension of time to appeal the Associate Judge’s decision made on 6 September 2018.
The respondent submitted that the applicant had done nothing to impugn any aspect of Richards J’s findings in refusing an extension of time. Thus, the delay was long (over 7 months); the explanation unpersuasive; and it would be oppressive on the respondent to allow the applicant to re-agitate grounds in respect of which leave was refused over one year ago.
The applicant claimed that he was only made aware that appeals can be made out of time in March 2019 by the Court of Appeal registry. He also placed particular emphasis on a ground in respect of which he was refused leave, namely, that there was no evidence that he had waived or withdrawn his request for the medical report.
Richards J recorded that the length of delay was significant and that, during this time, the VCAT appeal on the grounds for which leave was granted had been heard and determined. She also recorded that the explanation proffered by the applicant was that he was preparing submissions in relation to his PCO, and that it was only once these were completed that he found he was out of time. He also said he did not find out that he could seek an extension of time until March 2019 when he was advised by the Court of Appeal registry.[35]
[35]Reasons [59]-[60].
Her Honour then said:
I do not find this explanation compelling. While Mr Michos is not a lawyer, during this litigation he has proved himself able to understand and apply the procedural rules of the Court. He does not appear to have taken any steps to inform himself about whether an appeal could be brought after the 14 day time limit had expired. I infer that his interest in appealing the associate judge’s refusal of leave to appeal was revived by the fact that the substantive appeal had recently been determined against him.[36]
[36]Reasons [61].
She concluded:
Overall, I am firmly of the view that it would not be just to grant the extension of time that Mr Michos seeks. The delay was long, the explanation for it was unpersuasive, and it would be oppressive to the Clinic to reopen the question of leave to appeal. There is no demonstrated merit in the proposed appeal. To the contrary, the proposed appeal concerns a minor disagreement that caused Mr Michos only temporary inconvenience and frustration, to which very significant judicial and administrative resources have already been devoted.[37]
[37]Reasons [66].
The applicant has failed to identify any error in this approach.
In terms of the challenge based on ‘no evidence’, this matter was dealt with by Richards J in her earlier decision of 7 March 2019 (even though leave to appeal had been refused on the question). She found that the evidence provided a sufficient foundation for the finding that the applicant withdrew his request for access.[38] This finding was also cited in the first appeal without criticism.[39]
[38]Michos v Eastbrooke Medical Centre Pty Ltd [2019] VSC 131 [51]-[54].
[39]Michos v Eastbrooke Medical Centre Pty Ltd [2019] VSCA 140 [39].
The applicant has, again, failed to identify any error by the judge below.
Summary on prospects
The applicant failed to demonstrate a sound basis for any of the proposed grounds of appeal. Based on the matters before us, we consider the prospects of success to be very weak.
Other factors
Returning to the factors identified in Bodycorp Repairers v Oakley Thompson & Co Pty Ltd (No 3),[40] it was not suggested that the applicant’s impecuniosity arises out of the conduct complained of in the proceeding.
[40][2016] VSCA 185 [19].
The applicant stated that his appeal would be ‘dead in the water’ if security was ordered. However, given its low prospects of success, it cannot be said that an order for security would be oppressive in stifling a reasonably arguable claim.
We have already dealt with the question of public interest, though that was in the context of the substantive proceeding as it related to the application for a PCO. As submitted by the respondent, there appears to be little, if any, public interest in the subject matter of this appeal, which largely concerns questions of practice and procedure pertaining to the applicant personally. An exception might be ground 5 (which potentially relates to the grounds of the VCAT appeal). However, for reasons given already, that ground is weak.
The respondent has brought the application for security at an early stage of the appeal, prior to preparation of a written case, and after giving the applicant an opportunity to provide security without the need to apply for an order.
Finally, the applicant sought to raise s 86(1) of the HRA in opposition to the making of the security order. This provides that a person who lodges a complaint under s 45(1) of the HRA is not personally liable for any loss suffered by another person by reason ‘only’ of the lodging of the complaint. However, this does not assist the applicant in relation to the current appeal in circumstances where he has clearly taken steps which extend well beyond ‘only’ lodging a complaint.
Conclusion on discretion
In the light of the above considerations, in particular, the impecuniosity of the applicant and the low prospects of success on appeal, an order for security is justified. We are fortified in this view when consideration is given to the overarching purpose in the CPA.[41] The applicant has not only had his ‘day’ in court, he has consumed an entirely disproportionate amount of private funds and public resources, particularly when weighed against any prejudice he might have suffered having obtained his report on the very same day he requested it.[42]
[41]See Civil Procedure Act 2018 (Vic) s 7.
[42]And see factors in Civil Procedure Act 2018 (Vic) s 9, especially at ss 9(1)(c), (d), (g), 9(2)(f).
Quantification of security
In support of its application for security for costs, the respondent filed an affidavit sworn by its solicitor, Peter Arthur, of 18 September 2019 .
Mr Arthur was admitted as a solicitor of the Supreme Court of New South Wales in 1988, and has practised predominantly in the area of commercial litigation and employment since that time. He was a partner of Allens between 1991 to 2016 and, since retiring as a partner, has been engaged by Allens in the position of Senior Employment Counsel. Mr Arthur deposed that he had substantial experience in the conduct of complex litigation in superior courts, and in the course of his practice he has regularly had occasion to estimate the likely costs associated with the conduct of litigation.
He estimated that the total costs to be incurred would be $38,139. However, Counsel sought a discounted amount of $20,000 based on the decision in the first appeal.
The applicant has not filed any affidavit or made any submissions challenging Mr Arthur’s estimated costs.
In determining the approach to be adopted in assessing the quantum of security for costs, the Court should adopt a ‘broad brush approach’,[43] although it must have an evidentiary basis.[44]
[43]Trailer Trash Franchise Systems v GM Fascia & Gutter Pty Ltd [2017] VSCA 293 [64] citing Pathways Investments [2012] VSC 97 [37].
[44]Michos v Eastbrooke Medical Centre Pty Ltd [2019] VSCA 140 [64].
We are satisfied that $20,000 is an appropriate amount for security.
Conclusion
An order for security in the sum of $20,000 will be made.
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