Draoui v Le - [2020] SASC 155

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
DRAOUI v LE & ORS
[2020] SASC 155
Judgment of The Honourable Justice Bleby
21 August 2020
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS
Application for security for costs.
This matter has a complex history. The appellant claimed damages for personal injury and loss sustained in three separate motor vehicle accidents, occurring on 3 December 2001, 4 January 2011 and 26 February 2011. Trials listed in 2015 and 2017 were adjourned after the appellant failed to meet promises to obtain funding for legal representation. The appellant was self-represented at trial, which commenced on 8 July 2019, after an unsuccessful application by the appellant for a further adjournment on the basis that he was not mentally capable of conducting the trial on his own behalf and that he did not have the financial capacity to engage lawyers to do so. The appellant applied for permission to appeal against that refusal. On 3 July 2019, Kelly J refused that application.
Early in the trial, the appellant presented the Court with a letter from a general practitioner expressing the view that the appellant had suffered an exacerbation of his depressive disorder and that he should be reviewed by a psychiatrist. The trial judge determined to hold a disability inquiry to determine whether the appellant was a person under a disability and requiring a litigation guardian within the meaning of rule 4 of the District Court Civil Rules 2006. On 16 August 2019, the trial judge concluded that the appellant was not such a person. She ordered the trial to recommence. However, the plaintiff refused to return to the witness box and did not arrange witnesses to give evidence. On 20 August 2019, the trial judge ruled that the plaintiff’s case should be treated as closed.
The defendants opened their case and called witnesses over several days. On 29 August 2019, the appellant filed an interlocutory application in this Court, seeking permission to appeal from Kelly J’s refusal to grant permission to appeal from the decision refusing to adjourn the trial. This Court refused that application on 3 September 2019. On 23 September 2019, after judgment was reserved, the appellant brought an application to re-open his case and call witnesses. The appellant gave evidence on that application and was cross-examined. The judge refused the application, finding that re-opening the appellant’s case at that stage would effectively lead to a complete rehearing requiring six to eight further weeks.
With respect to the first accident, the trial judge found that the appellant had failed to prove that the accident was caused by the negligence of the defendant, Mr Le. With respect to the second accident, the trial judge found that there was no basis for a finding of negligence against the defendant, Mr Lock. With respect to the third accident, the defendants admitted liability, but the trial judge assessed the appellant’s injuries as ‘very modest,’ equating to damages of $4,340.
The appellant now appeals to the Full Court of the Supreme Court of South Australia against that decision. The respondents apply for an order that the appellant provide security for costs in the sum of $20,000 and that the appeal by stayed until security is provided.
Held, granting the application for security for costs:
1. The appellant is impecunious.
2. The Court will order security for costs of an appeal more readily than it will for a trial.
3. The appellant has very low prospects of succeeding on appeal in respect of the determination of the claim on the first accident, no realistic prospect in respect of the second accident, and some prospect of increasing his damages in respect of the third accident.
4. The discretion to order security for costs is simply one to be exercised judicially, having regard to all relevant matters. Personal injury cases will, most of the time, raise particular considerations relevant to the discretion that give rise to reluctance to make such an order. However, this does not amount to a different test in respect of personal injury cases.
5. This is a rare case where considerations that tend to be particular to personal injury cases on an application for security for costs carry less weight than they ordinarily would.
6. The appeal is stayed until the appellant pays into Court the amount of $20,000 for security for the costs of the respondents.
District Court Civil Rules 2006 (SA) r 4; Uniform Civil Rules 2020 (SA) rr 31.7(12), 101.4(1), 102.1, 115.1, 215.3; Supreme Court Rules 1987 (SA) r 95.13; Supreme Court Rules 1970 (NSW) pt 51, r 16(1); Criminal Law Consolidation Act 1935 (SA) s 269H, referred to.
Draoui v Le, Then & Cock [2019] SADC 85; Draoui v Le & Anor [2019] SASC 114; Draoui v Le, Then & Cock (No 3) [2020] SADC 23; R v Draoui [2008] SASC 188; Draoui v Le, Then & Cock [2019] SADC 108; Draoui v Le & Ors [2019] SASCFC 105; McVicar v S & J White Pty Ltd (trading as Arab Steed Hotel) [2006] SASC 233; de Groot v The Nominal Defendant [2004] NSWCA 88; Hughes v Janrule (2011) 177 ACTR 1; Woolworths Ltd v Berhane [2016] QCA 238, discussed.
Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor [2019] SASC 124; Lesses v Maras [2016] SASC 117; Fleming v Advertiser News Weekend Publishing Company Pty Ltd (No 3) [2016] SASC 81; Food and Beverage Australia Limited v PJ Nash Pty Ltd [2020] SASC 82; Diakos v Mason [2010] SASC 108; Steicke v Pederick (2019) 134 SASR 114; Rourke v White Moss Colliery Company (1876) 1 CPD 556; Farrer v Lacy, Hartland, & Co [1885] 28 Ch D 482; Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; Wood v Merck Sharp & Dohme (Australia) Pty Ltd (2000) NSWDDT 8; Murphy v Doman (2003) 58 NSWLR 51, considered.

DRAOUI v LE & ORS
[2020] SASC 155
Civil: Application

BLEBY J: This is an application for security for costs. The respondents, Khang Le, the Motor Accident Commission, Elizabeth Then and Daniel Peter Lock, apply for an order that the appellant, Abdou Khalil Nassar Draoui, provide security for costs in the sum of $20,000 and that the appeal be stayed until security is provided.
Background
The appellant claimed damages for personal injury and loss sustained in three separate motor vehicle accidents. The accidents occurred on 3 December 2001, 4 January 2011 and 26 February 2011.
Procedural history
The appellant was self-represented at trial. Trials listed in 2015 and 2017 had been adjourned after the appellant failed to meet promises to obtain funding for legal representation.[1]
[1] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [88] (Deuter DCJ).
Prior to the trial commencing in 2019, the appellant applied for a further adjournment. The basis of this application was, essentially, that he was not mentally capable of conducting the trial on his own behalf and that he did not have the financial capacity to engage lawyers to do so. The trial judge refused that application on 24 June 2019.[2] The appellant applied for permission to appeal against that refusal. On 3 July 2019, Kelly J refused that application.[3]
[2] Draoui v Le, Then & Cock [2019] SADC 85.
[3] Draoui v Le & Anor [2019] SASC 114.
The trial commenced on 8 July 2019. It took 27 hearing days over a course of 17 weeks. The appellant’s case began with the trial judge taking him through his evidence. As the trial judge recorded this first step:[4]
I explained that he had to tell me how each accident happened and what his injuries and losses were. I led the plaintiff through his evidence-in-chief, being mindful that it was not my role to be his advocate. He was then cross-examined by the defendants’ counsel. During this process, there were multiple breaks to accommodate the plaintiff’s health issues and medical appointments. The trial was suspended on 12 July 2019 to allow consideration of the plaintiff’s capacity to continue with the trial, due to his alleged deteriorating mental health.
[4] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [61] (Deuter DCJ).
In the course of giving evidence, the appellant made numerous complaints about feeling unwell and his inability to continue the trial. The trial judge was aware that the appellant had previously suffered a major depressive illness after having been charged with multiple offences in 2002. It had ultimately been determined, pursuant to s 269H of the Criminal Law Consolidation Act 1935 (SA), that on the balance of probabilities he was mentally unfit to stand trial on those charges.[5]
[5] R v Draoui [2008] SASC 188 at [10] (Sulan J, Doyle CJ, Duggan, Vanstone and Anderson JJ agreeing); Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [62] (Deuter DCJ).
On 12 July 2019, the appellant presented the Court with a letter from a general practitioner, Dr Mascolo, expressing the view that the appellant had suffered an exacerbation of his depressive disorder and that he should be reviewed by a psychiatrist, Dr Bem. Dr Mascolo considered that the plaintiff was not ‘fit to go through the legal/motor vehicle claims’.[6]
[6] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [64] (Deuter DCJ).
The trial judge consequently apprehended that the appellant may not have had capacity to conduct his claims, that he may have been a person under a disability within the meaning of rule 4 of the District Court Civil Rules 2006 and if so, that he would require a litigation guardian. She determined to hold a disability inquiry. This proceeded over eight days between 17 July 2019 and 13 August 2019.
On 16 August 2019, the trial judge concluded that the appellant was not a person under a disability and that he did not require a litigation guardian. She ordered the trial to recommence,[7] which it did on 19 August 2019. However, the plaintiff refused to return to the witness box. He confirmed that he had not arranged any witnesses to give evidence in his case. He claimed that he did not have the file or any documents, and he therefore could not be cross-examined. In fact, he had been provided with all of the documents the defence intended to rely on, including four tender books that had been provided to him on the first day of trial.[8] The plaintiff had also been handed various documents throughout the disability inquiry process.[9]
[7]    Draoui v Le, Then & Cock [2019] SADC 108 at [159]-[160] (Deuter DCJ).
[8]    Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [74] (Deuter DCJ).
[9]    Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [76] (Deuter DCJ).
On 20 August 2019, the trial judge ruled that the plaintiff’s case should be treated as closed. Her Honour indicated that she would consider an application by the appellant to reopen his case. The defendants opened their case and called witnesses over several days between 20 August 2019 and 6 September 2019. The plaintiff cross-examined those witnesses on some occasions and refused to do so on others. On 28 August 2019, he left the Court just before his previous general practitioner, Dr Moy, was called to give evidence.[10]
[10] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [79] (Deuter DCJ).
Then on 29 August 2019, the appellant filed an interlocutory application in this Court, seeking permission to appeal from Kelly J’s refusal to grant permission to appeal from the decision refusing to adjourn the trial.
This Court refused that application on 3 September 2019.[11] Justice Nicholson, with whom Peek and Doyle JJ agreed, recited the history of the matter, observing that at all times, the appellant’s primary concerns had been that he was not mentally capable of conducting the trial on his own behalf and was unable to afford lawyers.[12] With respect to Kelly J’s refusal of permission, his Honour recorded and observed as follows:[13]
Kelly J in her ex tempore reasons for judgment concluded as follows.
In my view, there is nothing in the reasons of the District Court Judge which cause me to, as I say, estimate the prospects of the applicant succeeding on appeal as being anything more than poor. In fact, I have concluded that this interlocutory application has all the hallmarks of being yet another device to obtain the adjournment he failed to receive before the District Court Judge in June. As such, I consider it to be on the verge of an abuse of this Court's process to be filing an interlocutory application in this Court at this stage. For these reasons, the application is dismissed.
I agree with her Honour as to the prospects of appeal. Indeed, I would go further and describe them as less than poor, bordering on zero. I can find no process error engaged in by the Judge. In my view, she has taken into account, and paid detailed attention to, all relevant matters and has not had regard to any irrelevant ones. Further, the outcome, that is the refusal to allow the adjournment, cannot in any way be said to be unjust or unreasonable. I would have made the same decision.
[11] Draoui v Le & Ors [2019] SASCFC 105.
[12] Draoui v Le & Ors [2019] SASCFC 105 at [12] (Nicholson J, Peek and Doyle JJ agreeing).
[13] Draoui v Le & Ors [2019] SASCFC 105 at [22] (Nicholson J, Peek and Doyle JJ agreeing).
Justice Nicholson concluded that the trial being well underway, the trial judge was on notice of the appellant’s mental state as reported by the psychiatrists in the disability inquiry.[14] His Honour also observed that to grant permission to appeal would not lead to a just outcome, as the application had been brought so far into the trial. His Honour observed that the appellant ultimately may establish an entitlement to a new trial, but to make an order to that effect at this stage of the proceedings would be of little utility.[15]
[14] Draoui v Le & Ors [2019] SASCFC 105 at [25] (Nicholson J, Peek and Doyle JJ agreeing).
[15] Draoui v Le & Ors [2019] SASCFC 105 at [27]-[28] (Nicholson J, Peek and Doyle JJ agreeing).
This last observation was not determinative of the application. The Court based its refusal on the conclusion that the trial judge had engaged in no process error, the outcome could not ‘in any way’ be said to be unjust or unreasonable, and the prospects of the appeal bordered on zero.
The trial continued. Argument also continued, with the appellant alleging that the trial judge had ignored his mental health.[16] On 9 September 2019, he emailed the trial judge’s chambers, saying that he wanted to bring witnesses to court to be examined and cross-examined, and would require an adjournment of at least a month.[17] Her Honour indicated, on 10 September, that unless the appellant had arranged to call witnesses, she would invite addresses. Further argument ensued.
[16] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [84] (Deuter DCJ).
[17] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [85] (Deuter DCJ).
The judge explained her ruling on this last application for an adjournment:[18]
Having heard the submissions from both parties, I ruled that I was not prepared to adjourn the actions further and I would treat the plaintiff’s case as closed and proceed to hear addresses from each party.[19] In making this ruling I noted that the plaintiff had never advised the court when the witnesses he wanted to call were available to give evidence. He had not contacted them or made any arrangements for them to give evidence. It was clear that the plaintiff had not made any arrangements with any witnesses to attend court, be they either expert or l witnesses. The plaintiff had also not taken steps to subpoena any witnesses. In the circumstances, I had no confidence that any of the experts that the plaintiff planned to call to give evidence, would be available in the near future to come to court, or would even agree to attend. In relation to the matter generally, I was concerned by the extraordinary period of time that this matter had already taken up in court, both at trial and on appeals to the Supreme Court. I also took into account that on 3 September 2019 the Full Court had upheld my decision of 24 June 2019 refusing to adjourn this trial.[20] I noted that Justice Nicholson in writing the majority judgment had the opportunity to consider the medical reports of Doctors Davis and Bem regarding the plaintiff’s mental state. His Honour found that those reports did not change his decision in relation to the plaintiff’s application for adjournment[21].
(Footnotes in original)
[18] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [89] (Deuter DCJ).
[19] T1143.
[20] Draoui v Le & Ors [2019] SASCFC 105.
[21] Ibid at [26].
On 23 September 2019, after judgment was reserved, the appellant brought an application to re-open his case, and in particular to call some 14 expert and lay witnesses.[22] He also asserted that his lack of proficiency in English and the legal technicalities of the claims meant that the trial was beyond his comprehension and capabilities.[23] The appellant gave evidence on that application and was cross-examined. The judge refused the application. She gave extensive reasons for this refusal in her reasons for judgment.[24] Those reasons were premised, in part, on interim findings that:
·the appellant had access to funds to pay the fees required for his expert witness to attend court during the trial, but chose not to make the necessary arrangements or use the funds for this;[25] and
·she did not accept the appellant’s position that he did not understand that he required expert accounting evidence to establish his financial losses caused by the injuries sustained in the motor vehicle accidents.[26]
[22] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [122] (Deuter DCJ).
[23] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [125] (Deuter DCJ).
[24] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [152]-[177] (Deuter DCJ).
[25] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [132] (Deuter DCJ).
[26] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [134] (Deuter DCJ).
The judge found that for the appellant to re-open his case at this stage would effectively lead to a complete rehearing, with the trial taking up to six to eight further weeks.[27] She concluded:[28]
In the context of the significant delays in this matter, it then being eighteen years since the first accident; the ongoing uncertainty regarding when this matter would be ready to proceed to a new trial; the prejudice to the defendants; the additional costs to be incurred; the waste of public resources if the matter was listed for a new trial and the fact that further delay would undermine public confidence in the administration of justice, I refused the plaintiff’s application to re-open his case.
[27] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [170] (Deuter DCJ).
[28] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [177] (Deuter DCJ).
The trial judge’s findings on liability
With respect to the first accident, the judge found that the appellant had failed to prove that the accident was caused by the negligence of the defendant, Mr Le.[29] This conclusion depended in significant part on her preference of the evidence of the defendant and a neutral third-party witness, Ms Lucas.[30]
[29] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [232] (Deuter DCJ).
[30] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [218] (Deuter DCJ).
With respect to the second accident, her Honour found that there was no basis for a finding of negligence against the defendant, Mr Lock. The evidence was to the effect that Mr Lock had been driving his scooter behind the car in which the appellant was a passenger. As the traffic was slowing, a utility approached from behind and did not appear to be braking. The impact caused the scooter to be pushed into the appellant’s car.[31]
[31] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [235] (Deuter DCJ).

No contrary evidence was led and the appellant did not cross-examine Mr Lock. The plaintiff was on notice of the defendant’s case from early in the proceedings. Her Honour dismissed the claim.[32]
[32] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [237] (Deuter DCJ).
The third accident was also a rear-end collision. The defendants admitted liability but denied that the accident caused any injury, loss or damage or, alternatively, that any such injury was minimal and should not sound in damages.[33]
[33] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [239] (Deuter DCJ).
The trial judge assessed damages. She concluded that the appellant’s injuries were ‘very modest’.[34] She assessed the damages at a scale value of 3, which for an accident in 2011 equated to damages of $4,340.[35]
[34] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [582] (Deuter DCJ).
[35] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [583] (Deuter DCJ).
The appellant also claimed for economic loss based on loss of earning capacity. The judge found that he had not proved on the balance of probabilities that he had suffered any reduction in his earning capacity as a result of those injuries, or loss of earnings.[36] She made no award for economic loss. Neither did she make any award under any of the other heads of loss claimed by the appellant.
[36] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [586] (Deuter DCJ).
The appeal
The appellant is represented on the appeal. The Notice of Appeal is settled by counsel. There are some 13 grounds of appeal. Grounds 1 to 9 complain of matters of process going to the fairness of the trial. These include complaints that the judge erred:
·in finding that the appellant was mentally fit to undertake the trial (Ground 2);
·in finding that there was no need to appoint a litigation guardian (Ground 3); and
·in not adjourning the trial, having regard to the appellant’s inability to represent himself, lack of financial resources, lack of English fluency and inability to comprehend the necessities of the trial (Ground 4); and
·in finding against the appellant on the second accident by reason of the wrong defendant being sued, which fact should have been brought to the appellant’s attention at the outset with an opportunity to join the correct party (Ground 8).
The other grounds in this category variously relate to her Honour’s addressing of the appellant’s mental health, English language capacity and lack of legal skills.
Grounds 10-13 complain of substantive matters concerning the trial judge’s findings. Without wishing to do any disservice to these grounds, given the course that the trial took it seems that the case on appeal depends in the first instance on the complaints of process. The appellant’s written submissions on this application focus on the complaint that he did not receive a fair trial.[37]
[37] Written Submissions of the Appellant at [5].
Security for costs
The application for security for costs invokes rules 102.1 and 115.1 of the Uniform Civil Rules. This being an appeal, rule 115.1 applies only in part, by operation of rule 215.3:
(1) The Court may order that the appellant on an appeal provide security for costs.
(2) Subrules (2) to (6) of rule 115.1 apply, with any necessary changes, to an application for security for costs.
There is no longer any requirement that the party seeking security demonstrate the existence of ‘special circumstances’ before the discretion is engaged. The Court is simply required to exercise the discretion judicially, having regard to established principles.[38]
[38] Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor [2019] SASC 124 at [30] (Peek J); Lesses v Maras [2016] SASC 117 at [5] (Doyle J); Fleming v Advertiser News Weekend Publishing Company Pty Ltd (No 3) [2016] SASC 81 at [13]-[14] (Stanley J).
Preliminary issue: the affidavit of Arwed Turon
The application is supported by an affidavit of the respondents’ solicitor, Mr John Ward.[39] That affidavit details the various costs orders that have been made in the course of the proceedings, various statements made by the appellant in the course of the proceedings as to his impecuniosity, correspondence about security for costs that preceded the application and certain other matters going to the merits of the application, which I will address in context.
[39] Affidavit of John Michael Ward, 3 June 2020, FDN 8.
The appellant’s solicitor filed a responding affidavit.[40] The respondents took issue with the admissibility of certain paragraphs of this affidavit, on the basis that they contain hearsay and do not comply with the requirements of rule 31.7(12) of the Uniform Civil Rules 2020. Their objection emphasised that the matters the subjects of these paragraphs are of some importance to the application.
[40] Affidavit of Arwed Turon, 24 June 2020, FDN 13.
For the following reasons, at the hearing of the application I declined to admit paragraphs 9, 10, 11, 13 and 14 of the affidavit of Arwed Turon affirmed 24 June 2020.
Rule 101.4(1) provides:
Unless the Court otherwise orders or these Rules otherwise provide, an affidavit to be tendered at a directions hearing may contain first hand hearsay if it will save time or expense and it complies with rule 31.7(12).
The hearing of this application occurred at a directions hearing within the meaning of rule 2.1. Rule 31.7(12) provides:
If an affidavit or statutory declaration is permitted to contain hearsay, it must in respect of each statement based on hearsay –
(a)   state that the deponent believes the statement;
(b)   identify the source of the statement (for example, the person who made the statement to the deponent or the document from which the deponent obtained the statement); and
(c)   make it clear that the hearsay is first hand hearsay.
The essential difficulty complained of is that the paragraphs in question simply relate the instructions that the solicitor has been given in respect of certain matters relevant to the application. While they do not state explicitly that they are first hand hearsay, that they are related as instructions tends to confirm that this is the case, and that the appellant is the source of the statement. They do not say that the deponent believes the statement, contrary to rule 31.7(12)(a).
Paragraph 9 relates the appellant’s instructions to the deponent as to the appellant’s understanding about the appointment of an interpreter at the trial. That goes directly to the heart of the merits of the complaint on appeal that the trial was unfair, having regard to the appellant’s English language capacity.
Paragraph 10 simply relates instructions received by the deponent as to the appellant’s financial position. It is, again, highly relevant.
Paragraphs 11 and 13 relate instructions about a matter that was raised on occasion throughout the proceedings. This is to the effect that the appellant has an interest in a house in Amman, Jordan, which interest he estimates to be worth $380,000, but that he has had difficulties in realising the value of that interest.
Paragraphs 9, 10, 11 and 13 do not comply with rule 31.7(12). As the respondent submits, the effect of their being cast in this manner in an affidavit by the appellant’s solicitor is that the appellant is not exposed to cross-examination. Moreover, these matters are of considerable relevance to the application.
Further, at paragraphs 4 to 7 of Mr Turon’s affidavit, the deponent expressly retracts a statement that he had made in a letter to the respondents’ solicitor,[41] to the effect that a request for an interpreter at the beginning of the trial was denied. That earlier statement had been made on his understanding of his instructions at the time.
[41] Affidavit of John Michael Ward, 3 June 2020, FDN 8, Exhibit JMW 6.
Paragraphs 9, 10, 11 and 13 carry no forensic weight. Had Mr Turon deposed to a belief in each statement, there would still have been a live issue as to what, if any, weight could be given to them. In circumstances of their non‑compliance with the rule by not including even this, the statements are inadmissible. The only question was whether there is any reason for me to make an order that would have the effect of curing the defects.
The matters the subject of these paragraphs are important to the application. In circumstances where they are merely related as instructions without even a statement of belief, I was not prepared to make such an order or admit the paragraphs.
Paragraph 14 is a statement of conclusion by the deponent on the basis of the other challenged paragraphs relating to the appellant’s financial position. It is to the effect that the appellant is not in a financial position to provide the sum sought by the respondents by way of security. The affidavit concludes with a submission to the effect that any order for security would have the effect of stifling the appeal. This paragraph is nothing more than a statement of opinion by the deponent as to an important issue on the application, with no admissible factual underpinning. Consequently, I declined to admit it.
Demonstrated risk of impecuniosity
It is uncontroversial that the appellant is impecunious. The respondents identify statements by the appellant before and during the trial as to his impecuniosity, based on his subsisting on a pension, and his general inability to afford to pay lawyers or to pay professional witnesses to attend to give evidence. Statements to this effect included both sworn evidence and assertions from the bar table.[42]
[42] Affidavit of John Michael Ward, 3 June 2020, FDN 8 at [15]-[17].
In addition, following the delivery of judgment, the trial judge made costs orders as follows, bearing in mind that the award of damages of $4,340 was made in Action No. 1901 of 2013:[43]
·the appellant was not entitled to costs in Action Nos 429 of 2012 or 100 of 2015;
·the appellant was not entitled to costs in Action No. 1901 of 2013;
·the respondents were entitled to costs in Action Nos 429 of 2012 and 100 of 2015;
·the second respondent was to have her costs in Action No 1901 of 2013 from 14 days after 24 February 2015;
·the respondents’ costs were to be payable on a party/party basis to 24 June 2019, and thereafter on a solicitor/client basis;
·the second respondent’s liability to the plaintiff in Action No 1901 of 2013 be set off against the appellant’s liability to the respondents in relation to the costs orders in their favour.
[43] Affidavit of John Michael Ward, 3 June 2020, FDN 8 at [11].
The respondents also had various costs orders in their favour in a number of interlocutory attendances and applications.
Mr Ward has also given evidence of the expenses incurred by the respondents’ insurer in relation to the actions.[44] While those expenses are not broken down in a form that reflects the costs orders, and in particular the divisions of timing and scale, unsurprisingly given the history of the matter, they run to the hundreds of thousands of dollars.
[44] Affidavit of John Michael Ward, 3 June 2020, FDN 8 at [14].
There is no admissible evidence before me as to the appellant’s assets. I have no difficulty in finding that the appellant is impecunious. I find that he would not be able to meet the costs orders made by Deuter DCJ. Should the appeal to the Full Court be unsuccessful, he would not be able to meet any costs orders made against him.
The discretion to order security for the respondent’s costs of an appeal
It is established that the Court will order security for the costs of an appeal more readily than it will for a trial. Where the appellant, especially in the capacity of plaintiff, has had the opportunity to have the matter litigated at trial, the controversy has been determined.[45] As Kourakis J (as he then was) explained in Diakos v Mason:[46]
The statutory right of a further review by way of appeal is a safeguard against error, but the fact remains that the plaintiff has had his side of the controversy judicially determined and in fact determined adversely to him. Moreover, the risk of injustice to an appellant if an order for security is prohibitive can be assessed with greater certainty on an appeal than at first instance.
[45] Food and Beverage Australia Limited v PJ Nash Pty Ltd [2020] SASC 82 at [42] (Doyle J); Sands v State of South Australia [2013] SASC 105 at [32] (White J).
[46] Diakos v Mason [2010] SASC 108 at [10] (Kourakis J).
This greater ‘readiness’ to order security amounts to a conclusion. As a matter of principle, this conclusion rests on recognition of the appropriateness of giving greater weight to the impecuniosity of a plaintiff/appellant, once they have had the benefit of their claim being determined judicially.[47]
[47] Diakos v Mason [2010] SASC 108 at [10] (Kourakis J).
Prospects of success
The prospects of success on appeal are usually of particular importance, as they speak directly to the probability of the respondent being deprived unjustly of their costs should the appeal fail. It is not appropriate to engage in a detailed review of the grounds of appeal and their merits, but obvious strength either way will carry weight.
The respondents emphasise the dismissal by the Full Court of this Court of the application for permission to appeal from Kelly J’s refusal to grant permission to appeal from the decision refusing to adjourn the trial. They refer in particular to the assessment by Nicholson J of the prospects of that appeal as bordering on zero. They urge a characterisation of that appeal as essentially raising the same issues as now arise.
That characterisation is broadly correct, but its utility is limited by the fact that that appeal concerned the position before the trial started. While Grounds 1 to 9 in the Notice of Appeal are relatively broadly worded in their coverage of the same types of complaints, Ground 6, in particular, focuses on what the appellant says must have become apparent to the trial judge on the appellant’s presentation at trial. The appellant relied on a range of occurrences during the trial that demonstrated, in his submission, that he was acting irrationally and was quite incompetent to present his case.[48] These included failing to arrange witnesses,[49] refusing to return to the witness box[50] and sitting with his head in his hands and rocking.[51]
[48] Written Submissions of the Appellant at [27].
[49] Trial transcript T16-17.
[50] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [10], [15], [19], [41], [42] (Deuter DCJ).
[51] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [35] (Deuter DCJ).
Further, when considering what was in any event the lack of utility, Nicholson J observed that the appellant might ultimately establish an entitlement to a new trial.[52]
[52] Draoui v Le and Ors [2019] SASCFC 105 at [28] (Nicholson J, Peek and Doyle JJ agreeing).
The appellant thus focused heavily on events transpiring during the trial. As to this, the respondent focused on the findings of credit against the appellant, observing that prospects of an appeal will generally be regarded as less when credit findings are made on the basis of matters which must logically be true or which could not conceivably be overturned on appeal.
The trial judge gave detailed reasons for her findings as to the appellant’s credibility. These did not concern only matters that could be disproved by objective evidence, but extended to his ‘unimpressive and unconvincing’ statements in court,[53] his unresponsiveness in cross-examination and his combative approach. She found that his activities outside of court, of which surveillance evidence had been given, were inconsistent with his claims. For example, she found that his repeated claims of inability to read English were undermined by surveillance footage of him reading an English language newspaper.[54]
[53] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [108] (Deuter DCJ).
[54] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [111] (Deuter DCJ).
This is not the occasion for a careful assessment of those, and other, credibility findings. The essence of the appellant’s argument is that these credibility findings are necessarily preceded by, and dependent on, the matters he puts in issue on appeal as to his mental capacity and English language capabilities. It is a necessary component of the appeal to argue that the trial judge’s credibility findings were tainted by her refusal to act correctly in response to his claims of disability during the trial. As counsel for the appellant expressed it on the hearing of the application:[55]
…the findings of credit in a sense are intertwined with the issues of language and the issues of mental illness, and it’s quite easy to see why it’s possible that a judge could get quite frustrated with somebody who’s making illogical decisions and acting in a way which is perhaps quite obstructive to the direction that the judge would like to lead the trial. That gets infected, we say, with the language issues and we say that there’s a whole host of problems in that regard…
[55] T41.21-29.
These opposing arguments create a stand-off between cause and effect when it comes to assessing the prospects of the appeal. To resolve this, it is necessary to delve further into the prospects of the appellant establishing the matters on which he relies for his complaints of unfairness.
Key to this is the fact that the appellant has also brought an application on the appeal to adduce fresh evidence. That has not yet been heard. The application is supported in part by an affidavit of Arwed Turon dated 10 June 2020,[56] which exhibits the evidence sought to be adduced on appeal. The evidence takes the form of two expert reports, one of Dr Marcus Bem dated 25 May 2020[57] and one of Professor Ghil’ad Zuckermann dated 14 May 2020.[58]
[56] FDN 11.
[57] Affidavit of Arwed Turon, 10 June 2020, FDN 11, Exhibit AT1.
[58] Affidavit of Arwed Turon, 10 June 2020, FDN 11, Exhibit AT2.
Dr Bem is the appellant’s treating psychiatrist. He gave evidence at trial. The new report opines on the question of the appellant’s psychological fitness to have represented himself at trial. I note that the opinion expressed in this report depends in some part on Dr Bem’s assessment of the appellant on 2 August 2019, which was during the trial.
Professor Zuckermann is a Professor of Linguistics. Her report opines on the English language capacity of the appellant, and in particular the difference between his English language capacity in Basic Interpersonal Communicative Skills (BICS) and lack of capacity in Cognitive Academic Language Proficiency (CALP). The latter is required for critical thinking, higher education and understanding of medical or legal documents.
It is not for me to determine here whether these reports should be permitted to be adduced as fresh evidence nor, it seems to me, their probative value on any appeal. Herein lies a difficulty. The admission of these reports appears to be important to the appellant’s case on appeal. An assessment of the appellant’s prospects on appeal may be affected by whether they are ultimately admitted.
The respondent’s application for security for costs on the appeal includes a sum ($3,000) for the costs of addressing this application to adduce further evidence on the appeal. The application will require consideration of whether the evidence could not, with reasonable diligence, have been obtained for use during the original proceedings, whether the evidence would have had an important influence on the result and whether the evidence is credible. It is for the Court to determine where the interests of justice lie. There must be a real possibility that the opposite result would have been reached had the evidence been before the Court at first instance.[59]
[59] Steicke v Pederick (2019) 134 SASR 114 at [7] (Kelly J, Nicholson and Lovell JJ agreeing).

There is some strength to the observation that the appellant may have some difficulty in establishing at least that this evidence could not, with reasonable diligence, have been obtained for use during the original proceedings. The affidavit evidence presently filed does not assist with this. I apprehend, however, that this question will likely once again be met with an argument going to the substantive questions of the appellant’s mental health and English language capacity, affecting his ability to conduct the trial competently.
A pattern emerges by which each orthodoxy that supports the respondent’s submissions as to the poor prospects of the appeal is met by a counter-argument to the effect that such orthodoxy is undermined by the very matters of the appellant’s English language incapacity and mental health difficulties, which underpin the grounds that complain of the fairness of the trial.
There are, however, two considerations that tend to resolve this paradox in favour of the matters raised by the respondent relevant to the prospects of success. The first is that on the material before the Court on the present application, there is little or no material supporting the proposition that the new reports could not, with reasonable diligence, have been obtained for use during the original proceedings. This is especially so where Dr Bem was a witness at trial and the relevant consultation on which his putatively fresh evidence is based occurred during the trial. As the respondents observed, the appellant, now represented, has not adduced evidence explaining why he was not able to engage these experts to these ends at the time, and why matters have now changed such that he has been able to do so.
Secondly, grounds 10 to 13 in the Notice of Appeal extend to substantive aspects of the judgment. The question of prospects should have regard to these grounds also. The respondents submit that even if some deficit of fairness were to be established, the appeal would fail in any event. The respondents made this argument most strongly with respect to the second accident, where it appears to be uncontroverted that the appellant sued the wrong defendant, Mr Lock, who had the misfortune to be catapulted into the appellant’s car when on his scooter, as the result of a car colliding with him. On no view, the respondents submitted, could the appeal in respect of these findings succeed.
The respondents informed the appellant of this error early in the proceedings.[60] The appellant’s position is that he thought that his solicitors at the time had addressed the error.[61] The appellant submits that at the time that this error was made plain to him, the Court could have made an order for substitution or joinder of the correct party. However, there is not now any application to join that other party to the appeal. Whatever the merits of the submission as to what the Court could have done when faced with this realisation, and where the appellant did not act on the position as explained by the respondent, the prospects of appeal in respect of the claim against Mr Lock are nil.
[60] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [238] (Deuter DCJ).
[61] T52.35-53.8.
The judge determined the claim in respect of the first accident by reference to findings of credit in favour of the defendant Mr Le and the independent witness, Ms Lucas. Those findings were made in part having regard to material deployed by the appellant in a Workers Compensation Vehicle Accident claim form that contradicted his own evidence at trial. The objective evidence of damage also favoured the accounts given by those witnesses over that of the plaintiff.[62]
[62] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [216]-[220] (Deuter DCJ).
Counsel for the appellant observed that in respect of this claim, there was no competent cross-examination of the other witnesses. This observation fed into the appellant’s ultimate case, being that the consequence of the way the trial proceeded was that there was not a fair trial. As to the prospects of the substantive grounds of appeal, however, the submission was:[63]
So, again, one couldn’t necessarily say that if the case was presented differently, that a different outcome wouldn’t ensue…
[63] T 54.1-3.
That much may be so, but it says little, if anything, about actual prospects. Further, there was objective evidence about the damage to Mr Le’s car, which supported his and Ms Lucas’s account. The prospects of success on the appeal in altering the determination of the claim are extremely low.
Liability in respect of the third accident was admitted. The respondents accepted that there was a prospect that the appellant might have received more damages, but submitted that the costs of pursuing the appeal would likely outweigh any further award, especially given that the accident was relatively mild. The respondents further pointed out that the appellant would require an award of damages in excess of $60,000 before he was able to obtain any costs in respect of that claim[64] and that even in that case, a set-off for the costs in the other two actions would be inevitable.
[64] See Uniform Civil Rules, r 194.5(11).
I find that the appellant has no realistic prospect of succeeding on appeal in respect of the determination of the claim on the second accident, very low prospects in respect of the first accident and some prospect of increasing his damages in respect of the third accident. However, I do not find that he has any significant prospect of increasing those damages by any substantial amount. The appellant has not identified any basis for attacking the trial judge’s finding on the basis of the expert reports, to the effect that the appellant sustained minor and limited aggravation to his already degenerative neck and spine, and that he had recovered to his pre-accident state within a few weeks.[65]
[65] Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [567] (Deuter DCJ).
Stultification of the proceedings
Whether an appeal would be stultified by an order for security is also relevant. It can often be determinative. The party who claims the appeal would be stultified bears the onus of proving the assertion.[66]
[66] Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd [2019] SASC 124 at [47] (Peek J).
The appellant submitted that the appeal would be stultified, on the basis that he and his wife are pensioners without assets. However, he did not adduce satisfactory evidence as to his financial position. I have found that the appellant is impecunious. The submission is really reduced to the proposition that it requires ‘no great leap of logic’[67] to conclude that he would struggle to come up with $20,000 to pay into Court.
[67] Written Submissions of the Appellant at [42].
I am not satisfied that this discharges the appellant’s onus to prove the claim that the appeal would be stultified. In any event, I note the appellant’s submission that the opposition to security does not depend on this argument.[68]
[68] Written Submissions of the Appellant at [42].
The fact that the appellant is a plaintiff in personal injury cases
The appellant submits, with some force, that it is relevant that the appeal is in respect of personal injury claims, between a natural but impecunious person and a well-resourced insurer. There has long been a reluctance to order security in such cases. In this Court, what has been described as a ‘special category’ of claimants for damages for personal injury has been considered through the prism of the previous rule 95.13 of the Supreme Court Rules 1987, which empowered the Court to grant security for costs ‘if there are special circumstances’. In McVicar v S & J White Pty Ltd (trading as Arab Steed Hotel), White J observed:[69]
In the particular circumstances of this case, I do not regard the appellant’s impecuniosity as constituting special circumstances for the purposes of Rule 95.13. Two interrelated factors lead me to that conclusion. First, the plaintiff’s allegation is that he has suffered a major loss of his earning capacity by reason of a tort by the respondent. The Courts have not generally required plaintiffs whose impecunious state results (or is alleged to result) from the act of the defendant which is the subject of the litigation to give security for costs in order that they might enforce their claims.[70]
The second is that claimants for damages for personal injury have generally been understood as being in a special category.[71] In de Groot v The Nominal Defendant, Handley JA said that it was “practically unheard of” for a plaintiff/appellant in personal injury cases to be ordered to provide security.[72] He described the ordering of security in such cases as “contrary to the long established practice of the Court”.[73] I also note that in Wood v Merck Sharp & Dohme (Australia) Pty Ltd, O’Meally P said:
I do not know of, nor have counsel been able to refer me to, any case in which an order for security of costs has been given in a personal injury case.[74]
The reluctance of Courts to order security for costs in personal injury claims may be because impecuniosity of a personal injury litigant is an ordinary, rather than special, circumstance, or because the majority of personal injury damages claims are defended on behalf of defendants by insurers exercising rights arising under insurance contracts and are therefore, in reality, forensic contests between injured individuals on the one hand, and substantial financial corporations on the other. Alternatively, it may be because the Courts have recognised the special interest of those whose physical or mental integrity has been compromised by injury to vindicate their rights. Alternatively again, it may be because personal injury claims are a common illustration of the type of case mentioned earlier, namely, cases in which the plaintiff’s impecuniosity results (or is alleged to result) from the very conduct of the defendant of which the plaintiff complains in the action. It may result from a combination of these factors.
(Footnotes in original)
[69] [2006] SASC 233 at [23]-[24].
[70] See also Rourke v White Moss Colliery Company 1 CPD 556; Farrer v Lacy, Hartland, & Co [1885] 28 Ch D 482.
[71] Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) NSWCA 136 at [16]-[17]; (2004) 60 NSWLR 143 at 147.
[72] [2004] NSWCA 88 at [29].
[73] Ibid at [30].
[74] (2000) NSWDDT 8 at [19]; (2000) NSWCCR 270.
I note the observation in de Groot v The Nominal Defendant,[75] to which White J had regard, that it is ‘practically unheard of’ for a plaintiff/appellant to be ordered to provide security in such a case. In that case, Handley JA observed that the appellant faced obvious difficulties, given the trial judge’s findings of credibility at trial. However, his Honour also considered that he was not in a position to form a view on the appellant’s prospects of success.[76] He held that there was nothing in that case that could support an order for security other than the fact of impecuniosity, the apparent difficulties on the appeal and the length and cost of the trial. To order security in that case would tend to warrant ordering security in most personal injury cases.[77]
[75] [2004] NSWCA 88.
[76] de Groot v The Nominal Defendant [2004] NSWCA 88 at [24]-[25] (Handley JA).
[77] de Groot v The Nominal Defendant [2004] NSWCA 88 at [30] (Handley JA).
The application for security in that matter was governed by SCR Pt 51 r 16(1) of the New South Wales Supreme Court Rules. That rule provided, like rule 95.13 of the Supreme Court Rules 1987 (SA), that the Court can order security for the costs of an appeal in special circumstances.
There is a sense from these decisions that in personal injury cases, the character of the matter speaks more forcefully against any claim to special circumstances warranting an order for security. It might be thought that it would follow that where the requirement of special circumstances no longer exists, there is less standing in the way of an order for security being made in such cases.
However, while I accept that the absence of any requirement of special circumstances simply leaves the question as one to be determined judicially in all of the circumstances, I do not think that this devalues the importance of the considerations identified by White J in McVicar to the reluctance to order security for costs in personal injury cases. In Hughes v Janrule,[78] the relevant rule of the ACT Supreme Court did not require special circumstances. Penfold J accepted that only limited reliance could be placed on case law from NSW to the extent that it depended on special circumstances.[79] However, as Penfold J then observed:[80]
However, that conclusion about the special circumstances requirement in the NSW rules does not resolve the separate question whether the considerations in personal injury litigation are somehow different. Certainly there are comments in some of the NSW cases, not to the effect that special circumstances are required before security for costs will be ordered in personal injury cases, but to the effect that personal injury cases may be a class of cases subject to slightly different tests for when security for costs should be ordered.
[78] (2011) 177 ACTR 1.
[79] Hughes v Janrule (2011) 177 ACTR 1 at [74] (Penfold J).
[80] Hughes v Janrule (2011) 177 ACTR 1 at [75] (Penfold J).
Personal injury cases will generally have characteristics that make them poor candidates for security for costs orders. However, I am reluctant, with respect, to perpetuate the description of personal injury cases as a ‘class’ of case that may warrant a slightly different test or, with respect to Handley JA, to invoke a long practice of not ordering security in such cases to give normative strength to that historical truth. Rather, I take the view that the discretion is simply one to be exercised judicially, having regard to all relevant matters. Personal injury cases will often, indeed most of the time, raise considerations relevant to the discretion of the type identified by White J in McVicar that do not tend to arise in other types of case, and decisively so. That does not amount to a different test.
These considerations will often be that impecuniosity is alleged to have resulted from the actions of the defendant, that the contest is usually between an injured individual and a large insurer and that the nature of the injury is the compromising of physical and/or mental integrity, which calls acutely for the facility to vindicate the plaintiff’s rights to be readily available.
In the present case, there is nothing before me that suggests that the appellant’s impecuniosity is the result of the conduct of the respondents. I do not have satisfactory evidence of the appellant’s financial position or the reasons for this, other than the bare, conceded fact of impecuniosity. It is the case that the respondents have the resources of a large insurer. On the other hand, the conduct of the appellant in pursuing the claims[81] has undoubtedly contributed heavily to the respondents incurring costs in amounts that must be many multiples of any amount he could hope for on the most optimistic view of his prospects.
[81] See, in particular, Draoui v Le, Then & Cock (No 3) [2020] SADC 23 at [21]-[90] (Deuter DCJ).
The acute concern for the vindication of rights in a personal injury matter is necessarily bound up with the question of the prospects of success, to the extent that this can be assessed. In Hughes v Janrule,[82] it could not be said that the appeal was completely without merit, even if the prospects were relatively poor. In de Groot,[83] Handley JA could not form a view on the merits. In Woolworths Ltd v Berhane,[84] also a personal injury case, the fact that the appeal had ‘at least an arguable case’ was a reason not to order security.
[82] (2011) 177 ACTR 1 at [132] (Penfold J).
[83] [2004] NSWCA 88 at [25].
[84] [2016] QCA 238 at p 3.
In the present case, the Notice of Appeal challenges the dismissal of the first and second claims, without distinction. I have assessed the prospects on the challenge to the first as poor, and the second as nil. The appeal on quantum has some conceded prospects, albeit not necessarily with a view to any much greater award. This does not, however, rescue the hopelessness or poor prospects of other parts of the appeal. Those parts will in turn generate the incurring of costs.
Ultimately, it is for the appellant to determine whether to appeal against all or just some part of the judgment. That one claim has manifestly more merit than the others, such that if it were the only subject of the appeal, any application for security would be unlikely to succeed, does not shield the balance from scrutiny. The breadth of the Notice of Appeal is not within the control of the respondents.
I conclude that this is a rare case where considerations that tend to be particular to personal injury cases on an application for security for costs carry less weight than they ordinarily would.
Whether the case raises issues of public or legal importance
The appellant argues that the appeal raises issues of general importance, in particular with respect to grounds 1 to 9, and the obligations of the trial judge when presented with behaviour such as that of the appellant.[85] The respondents, by contrast, frame the case largely as one of credibility.
[85] See, e.g., Murphy v Doman (2003) 58 NSWLR 51.
The public or legal importance of issues raised by a matter is relevant, insofar as an order for security would stifle proceedings raising such issues.[86] How a trial judge should deal with unrepresented litigants in extreme circumstances certainly can raise issues of public importance. However, in the present case I am unable to conclude that the appeal would be stifled. In any event, whether any potential issue of public importance is likely to arise depends very much on the assessment of prospects if the fresh evidence application, at the least. I give the potential for this appeal to address issues of public importance only little weight.
[86] Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd [2019] SASC 124 at [60] (Peek J).
The appellant does not reside outside the State
In the circumstances that I have canvassed above, I also give the fact that the appellant does not reside outside the State only little weight, notwithstanding that this consideration speaks against an order.[87]
[87] Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd [2019] SASC 124 at [61] (Peek J).
Conclusion on whether to make an order for security for costs
I have had particular regard to the appellant’s impecuniosity, the lack of evidence going to stultification and the difficulties associated with the application for leave to adduce fresh evidence. Most importantly, this being an appeal, I have had regard to the complete lack of merit of one claim, the extremely poor prospects of another and the unlikelihood of a significant increase in damages with respect to the third, where the Notice of Appeal attacks the determination of all three claims.
This is a most unusual case. For the reasons above, I give the factors ordinarily associated with an appeal against a determination of a personal injury claim less weight than might ordinarily be expected.
I conclude that the matters that speak in favour of an order for security outweigh those that speak against, which I have considered above. It is appropriate to make an order for security for costs.
Quantum of security for costs
By a letter dated 14 May 2020, the solicitors for the respondents wrote to the solicitor for the appellant requesting security for their clients’ costs.[88] That letter set out the respondents’ estimated costs of the appeal in orthodox fashion, the amount coming to $17,662.00. They rounded this down to $17,000 for the purposes of the request. The prospect of the application to adduce fresh evidence has caused them to add $3,000 to this total, the application now seeking an order for $20,000.
[88] Affidavit of John Michael Ward, 3 June 2020, FDN 8, Exhibit JMW 5.

The appellant concedes that this is a conservative estimate. He took some issue with respect to quantum on the basis that a higher quantum would be more likely to stultify the appeal, but absent acceptable evidence going to stultification, I do not consider that there is a satisfactory basis for the Court to trim this estimate.
Conclusion
I conclude that the appeal should be stayed until the appellant pays into Court the amount of $20,000 for security for the costs of the respondents. I will hear further from the parties as to the form of the orders to be made.