McVicar v S & J White Pty Ltd - [2006] SASC 233

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules)
MCVICAR v S & J WHITE PTY LTD (TRADING AS ARAB STEED HOTEL)
[2006] SASC 233
Judgment of The Honourable Justice White
4 August 2006
PROCEDURE - COSTS - SECURITY FOR COSTS
Application pursuant to r 95.13 for the appellant to provide security for costs of appeal to the Full Court - requirement for "special circumstances" - whether discretion should be exercised - plaintiff claiming damages for personal injuries - impecuniosity held not to constitute special circumstances as the plaintiff's impecuniosity was alleged to result from the act of defendant which was the subject of the litigation - limited financial assistance provided by WorkCover, in conjunction with the plaintiff's impecuniosity, held not to constitute special circumstances - discretion to order security not enlivened - application refused.
Supreme Court Rules 1987 (SA), r 95.13; Workers Rehabilitation and Compensation Act 1986 (SA), s 54; District Court Act 1991 (SA), s 43; WorkCover Corporation Act 1994 (SA), s 13; Social Security Act 1991 (Cth), s 1166, s 1167, referred to.
Baulderstone Pty Ltd and Others v WorkCover Corporation and Another (1995) 64 SASR 519; Fletcher v Federal Commissioner of Taxation (1992) 110 ALR 233; Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; Cowell v Taylor [1885] 31 Ch D 34; Kennedy v McGeechan [1978] 1 NSWLR 314; Archer Pty Ltd v Woodhead Australia Pty Ltd [1995] SASC 5020; Citicorp Australia Ltd & Ors v Cirillo & Anor (2003) 228 LSJS 132; Foxgold Pty Ltd v Paterson [2005] SASC 376; Lall v 53-55 Hall Street Pty Ltd [1978] 1 NSWLR 310; Rourke v White Moss Colliery Company 1 CPD 556; Farrer v Lacy, Hartland, & Co [1885] 28 Ch D 482; de Groot v The Nominal Defendant [2004] NSWCA 88; Wood v Merck Sharp & Dohme (Australia) Pty Ltd (2000) NSWDDT 8; Octocane Pty Ltd v SRJ Property Development Pty Ltd and Another (1999) 74 SASR 471; The Shed People Pty Ltd (In Liq) v Turner [2003] SASC 404; Bell Wholesale Co Pty Ltd v Gates Export Corporation (No 2) (1984) 2 FCR 1; John Arnold's Surf Shop Pty Ltd (In Liq) v Heller Factors Pty Ltd and Allert (1979) 22 SASR 20; Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 121 ACLR 616; Newtrend Pty Ltd v Oceanic Life Limited [1990] WAR 1, considered.

MCVICAR v S & J WHITE PTY LTD (TRADING AS ARAB STEED HOTEL)
[2006] SASC 233
Civil

WHITE J. This is an application that the appellant provide to the respondent security for the costs of his appeal to the Full Court.
The application is bought pursuant to Rule 95.13(b) of the Supreme Court Rules 1987 which provides that the Court “may if there are special circumstances order that such security as the Court thinks fit be given for the costs of the appeal”.
The respondent accepts that it must demonstrate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read McVicar v S & J White Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] SASC 233
Decision Date: 4 August 2006

CaseChat Overview and Summary

McVicar v S & J White Pty Ltd involves an application for the appellant to provide security for the costs of an appeal to the Full Court. The appellant, McVicar, is seeking damages for personal injuries he sustained in an industrial accident while working on a contract for a third party at the respondent's premises. The District Court dismissed McVicar's claim, and he is now appealing that decision. The respondent contends that "special circumstances" exist to justify requiring McVicar to provide security for costs. McVicar argues that his impecuniosity and limited financial assistance from WorkCover do not constitute "special circumstances" under the relevant rules. The court must determine whether the respondent has demonstrated "special circumstances" warranting an order for security for costs.

The legal issue before the court is whether the respondent has demonstrated "special circumstances" that would justify the court exercising its discretion to order security for costs. The court must consider whether McVicar's impecuniosity and the limited financial assistance from WorkCover are sufficient to constitute "special circumstances." The respondent bears the burden of demonstrating that "special circumstances" exist to enliven the court's discretion. If "special circumstances" are established, the court must then exercise its discretion on whether to order security for costs.

The court found that the respondent did not establish the existence of "special circumstances" warranting an order for security for costs. The court held that McVicar's impecuniosity, which he claimed resulted from the act of the defendant that is the subject of the litigation, does not constitute "special circumstances." Additionally, the court found that the limited financial assistance provided by WorkCover, in conjunction with McVicar's impecuniosity, did not constitute "special circumstances." The court exercised its discretion and concluded that it would not have been appropriate to order security. The application for security for costs was therefore refused.

The court concluded that the application for the appellant to provide security for the costs of the appeal to the Full Court is refused. The court found no "special circumstances" that would justify the exercise of its discretion to order security for costs. The respondent's application was dismissed, and no security for costs was ordered.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The respondent accepts that it must demonstrate the existence of “special circumstances” in order that the Court’s discretion to order security be enlivened. It was accepted (correctly in my opinion) that Rule 95.13 involves a two-stage process: proof by the respondent of the existence of special circumstances, and when that is established, an exercise of a discretion by the Court as to whether security should be ordered.Background Circumstances The appellant suffered serious injuries in an industrial accident at the respondent’s premises on 13 September 1999. He was there in his capacity as an employee of a Mr Keough who was carrying out a contract to clean a kitchen canopy. The appellant sued the respondent in the District Court seeking damages. An order was made that the liability aspects of the plaintiff’s claim be heard and determined in advance of the damages aspects. By a judgment delivered on 8 May 2006, the plaintiff’s claim was dismissed. The appeal to this Court is brought from that decision. The appellant claimed and received substantial amounts of compensation in respect of his injuries from WorkCover Corporation of South Australia (“WorkCover”) pursuant to the Workers Rehabilitation and Compensation Act 1986 (SA) (“WRCA”). By notice dated 2 June 2003, WorkCover’s claims agent gave notice of an intention by WorkCover to recover, pursuant to s 54(7) of the WRCA, a sum in excess of $500,000 in respect of compensation paid and payable under the WRCA. The appellant has continued to receive payments of income maintenance from WorkCover since June 2003 so that it is probable that WorkCover may now assert an entitlement to recover, pursuant to s 54(7), a much increased amount. WorkCover instituted its own proceedings seeking to enforce its claim to recovery. Those proceedings were instituted in the Workers Compensation Tribunal on 12 September 2002 but discontinued on 22 January 2003. However, in December 2005, and only shortly before the hearing of the appellant’s claim in the District Court commenced, WorkCover obtained an order reinstating its proceedings. Section 54(7) of the WRCA provides:(7) Where—(a)compensation is paid or payable to a person (the injured party) under this Act;(b)the injured party has received, or is entitled to, damages from another person (the wrongdoer) in pursuance of rights arising from the same trauma as gave rise to the rights to compensation under this Act;(c)the person by whom the compensation is paid or payable under this Act (the claimant) is entitled to recover the amount of the compensation by virtue of subsection (5) or (6),then the following provisions apply:(d)the claimant is entitled to recover the amount of compensation paid or payable under this Act from the wrongdoer or the injured party but subject to the following qualifications:(i) no amount may be recovered from the wrongdoer in excess of the wrongdoer's unsatisfied liability to the injured party; and(ii) the claimant must exhaust its rights against the wrongdoer before recovering against the injured party; and(iii) no amount may be recovered from the injured party in excess of the amount of the damages received by the injured party;(e)the claimant shall, on giving notice to a wrongdoer of an entitlement to recover compensation under this section, have a first charge, to the extent of the entitlement, on damages payable by the wrongdoer to the injured party;(f)any amount recovered by the claimant against a wrongdoer under this subsection shall be deemed to be an amount paid in or towards satisfaction of the wrongdoer's liability to the injured party;(g)an action for the recovery of compensation under this subsection—(i)may be heard and determined by the Tribunal (constituted of a presidential member); and(ii)must be commenced within 3 years after the date of the trauma referred to in paragraph (b).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

WHITE J

In case I be wrong in the view which I have taken about special circumstances, I will indicate the position which I would have taken had I regarded the discretion as having been enlivened. The matters which bear upon the existence of special circumstances are also, in my opinion, relevant to an exercise of the discretion. In the present case, for the reasons which I have given in relation to the consideration of special circumstances, I would not have thought it appropriate to order security.Conclusion For the reasons given above, the application that the appellant provide security for the respondent’s costs of and incidental to the appeal is refused.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

Full text does not contain this section.