Morgan v WorkCover Corporation - [2013] SASC 47

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Civil)
MORGAN v WORKCOVER CORPORATION
[2013] SASC 47
Judgment of The Honourable Justice Stanley
10 April 2013
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS
Interlocutory application by the respondent seeking orders for the dismissal of two appeals and an application for permission to appeal brought by the appellant – the first appeal is from a District Court judgment dismissing the appellant’s claim for breach of statutory duty under the Workers Rehabilitation and Compensation Act 1986 (SA), the Whistleblowers Protection Act 1993 (SA) and the Freedom of Information Act 1991 (SA) – the second appeal and application for permission to appeal are from an interlocutory judgment of this Court requiring the appellant to provide security for costs of the first appeal – in the alternative, the respondent seeks an order that the second appeal be struck out.
Held: appellant’s application for permission to appeal from the orders of Vanstone J on 17 October 2012 is dismissed, the appellant’s appeal from the orders made by Vanstone J on 17 October 2012 is dismissed – the appellant has failed to identify any error of law or principle made by the learned judge, or any failure by the learned judge to consider some relevant matter or the consideration of irrelevant matters or mistaking of facts - the learned judge correctly identified the test to be applied in determining whether an order for security is appropriate.
In respect of the first appeal, it is not appropriate at this stage to dismiss the appeal without first affording the appellant the opportunity to provide the security ordered – the application is not dismissed at this stage.
Supreme Court Civil Rules 2006 (SA) r 295, r 232, r 288; Workers Rehabilitation and Compensation Act 1986 (SA) s 112; Whistleblowers Protection Act 1993 (SA) s 4, s 5, s 10; Freedom of Information Act 1991 (SA), referred to.
Purins v Alpine Constructions Pty Ltd [2008] SASC 11; House v The King (1936) 55 CLR 499; Dagenham Nominees Pty Ltd v Shanks (2011) 110 SASR 577, applied.
Morgan v WorkCover Corporation [2012] SASC 190; Morgan v WorkCover Corporation [2012] SADC 63; Archer v Woodhead Australia Pty Ltd Unreported, Lander J, 29 March 1995, discussed.
Levy v Bablis [2012] NSWCA 77; Citicorp v Cirillo (2003) 228 LSJS 132; Diakos v Mason [2010] SASC 108; McVicar v S & J White Pty Ltd (2006) 245 LSJS 177, considered.

MORGAN v WORKCOVER CORPORATION
[2013] SASC 47
Civil
STANLEY J:
Introduction

This is an interlocutory application by the respondent seeking orders for the dismissal of two appeals and an application for permission to appeal brought by the appellant. The first appeal is from a District Court judgment dismissing the appellant’s claim for damages for breach of statutory duty. The second appeal and the application for permission to appeal are from an interlocutory judgment of this Court requiring the appellant to provide security for costs of the first appeal. In the alternative, the respondent seeks an order that the second appeal be struck out.
Background
This matter has a lengthy history. In 1993 the appellant brought a claim under the Workers Rehabilitation and Compensation Act 1986 (SA). The appellant was acquainted with a Mr Mallard, a senior employee of the WorkCover Corporation. On 1 November 1994 the appellant wrote to Mr Lew Owens, then the Chief Executive Officer of the WorkCover Corporation. That letter contained allegations concerning the conduct of Mr Mallard. On receipt of the letter, Mr Owens sought an explanation from Mr Mallard of the allegations set out in the appellant’s letter. He provided a copy of the appellant’s letter to Mr Mallard for that purpose. In August 1995 Mr Mallard and his wife brought action in the Magistrates Court against the appellant claiming damages for defamation. They alleged the letter was defamatory. On 12 September 1995 the appellant wrote a further letter to WorkCover in which she repeated the allegations she had made against Mr Mallard. Mr and Mrs Mallard amended their claim to include an allegation that they were defamed by the letter of 12 September 1995. This action went to trial before Mr Hiskey SM. The learned magistrate found for Mr Mallard. He found that the November 1994 letter and the September 1995 letter were defamatory of Mr Mallard and that in publishing them, the appellant was actuated by malice. He awarded damages in the sum of $10,000. The appellant appealed the learned magistrate’s judgment. That appeal was dismissed by Olsson J.
In 2000 the appellant commenced proceedings against the respondent, WorkCover Corporation, in the District Court. In this action the appellant claimed the respondent had breached statutory duties of confidentiality she alleged were owed to her pursuant to s 112 of the Workers Rehabilitation and Compensation Act, the Whistleblowers Protection Act 1993 (SA) and the Freedom of Information Act 1991 (SA). Those breaches were alleged to result from the publication of her letters of November 1994 and September 1995 to Mr Mallard. She claimed that the letters were protected as public interest disclosures and/or confidential communications. Those proceedings followed a tortuous interlocutory path before coming to trial before Judge Griffin in January 2012. The trial occupied 11 hearing days over more than three weeks due to adjournments granted to the appellant at various times. On 11 May 2012 Judge Griffin dismissed the appellant’s claim.
Judge Griffin found that the letters were not protected by the Workers Rehabilitation and Compensation Act, the Freedom of Information Act or the Whistleblowers Protection Act. Importantly, for the purposes of deciding this application, the learned judge found that in publishing the letters of November 1994 and September 1995, the appellant did not have a genuine belief in the truth of the allegations set out in those letters concerning Mr Mallard, and that Mr Hiskey SM was correct in the earlier proceedings in finding that she had been actuated by malice in publishing them.
Section 5(1) of the Whistleblowers Protection Act confers a protection from civil or criminal liability to any person who makes an appropriate disclosure of public interest information. “Public interest information” is defined in s 4(1) to mean:
public interest information means information that tends to show—
(a)that an adult person (whether or not a public officer), body corporate or government agency is or has been involved (either before or after the commencement of this Act)—
(i)    in an illegal activity; or
(ii)     in an irregular and unauthorised use of public money; or
(iii)    in substantial mismanagement of public resources; or
(iv)    in conduct that causes a substantial risk to public health or safety, or to the environment; or
(b)that a public officer is guilty of maladministration in or in relation to the performance (either before or after the commencement of this Act) of official functions;
Section 5(2) provides:
(2)A person makes an appropriate disclosure of public interest information for the purposes of this Act if, and only if—
(a) the person—
(i)believes on reasonable grounds that the information is true; or
(ii)is not in a position to form a belief on reasonable grounds about the truth of the information but believes on reasonable grounds that the information may be true and is of sufficient significance to justify its disclosure so that its truth may be investigated; and
(b) the disclosure is made to a person to whom it is, in the circumstances of the case, reasonable and appropriate to make the disclosure.
The finding by the learned judge took the letters outside the protection afforded by the Whistleblowers Protection Act. Given the finding that the appellant was actuated by malice and lacked a genuine belief in the truth of the information contained in the letters the only conclusion available was that the appellant had not made an appropriate disclosure of public interest information for the purposes of the Act. On this basis the protection afforded by s 5(1) did not operate.
In his reasons, the learned judge addressed a number of procedural aspects of the trial about which the appellant complains in the following terms:[1]
[1] [2012] SADC 63 [3] – [7].
Throughout the trial the plaintiff was self-represented and the defendant was represented by counsel. Several times during the trial the plaintiff informed the court that she was unwell and needed time off. Adjournments were granted to the plaintiff in accordance with the requests she made and as supported by written information from her treating medical practitioner. Because the plaintiff was not represented and is not legally trained, it was often difficult to identify the precise issues being advance or how particular evidence was said to be relevant to an issue. I endeavoured to assist the plaintiff as much as possible without assuming the responsibility of running her case for her. I must also say that the defendant through its solicitors and counsel Mr John White, also assisted the plaintiff, although she may not have seen it that way. The defendant’s counsel chose not to object to many potentially contentious pieces of evidence and sensibly facilitated all possibly relevant documents being before the court subject to later rulings and legal arguments if required. The three volumes of tender books (referred to in footnotes as “TB”) were put before the court by consent of both parties. Potentially objectionable materials within the tender books are printed on yellow bond paper to indicate their status. In effect, they were tendered to the court de bene esse. In the end, nothing significant turned on any of those documents.
Application to amend Statement of Claim
At the commencement of the trial the plaintiff re-agitated her application to amend and file a proposed sixth Amended Statement of Claim. This application had been heard by Master Norman on 14 December 2011 and refused. I heard oral argument from the plaintiff and defendant’s counsel and written submissions from both parties. The plaintiff was unable to articulate any compelling reason why leave should be granted to file a further Statement of Claim. I delivered ex tempore reasons refusing leave. The action therefore proceeded on the existing pleadings namely the plaintiff’s Fifth Amended Statement of Claim filed 19 January 2011 and the defendant’s Third Defence filed 9 February 2011.
Attempt to subpoena WorkCover employees
Before the plaintiff was invited to explain her claim and call evidence, she raised the issue of a subpoena she had directed towards WorkCover requiring a number of its former employees to attend and give evidence. Discussions in court with the plaintiff revealed that she had attempted to subpoena a number of former employees of WorkCover by addressing the subpoena care of the Workcover Corporation. Only one of the people named on the subpoena, Ms Anne Scanlon, is still an employee. The defendant accepted service of the subpoena on behalf of that employee but not in respect of other named personnel who no longer work there. Defendant’s counsel did indicate that it intended to call the former Chief Executive Officer of WorkCover, Mr Lew Owens. The issue of the plaintiff summonsing former employees had been raised during pre-trial hearings before Master Norman. Master Norman had informed the plaintiff that she would need to direct the subpoena to the individuals at their individual addresses. Many of those individuals had given evidence during hearings before the Master regarding discovery issues. The Master made the court file available for the plaintiff if she needed to identify the addresses for those witnesses.
The fundamental problem for the plaintiff was that she did not properly issue and serve subpoenas on the witnesses she said she needed. However, it became evident during the argument on this issue that the nominated former employees would not have any relevant and admissible evidence to give even if properly served with a subpoena. The failure to properly effect service upon the nominated people in the subpoena to WorkCover did not damage the plaintiff’s claim. For the reasons I will set out, the plaintiff’s claim was fundamentally flawed and the evidence adduced during the trial did not establish either a cause of action, a breach of any duty or any causal link between an alleged breach of duty and the damages claimed.
Although the plaintiff’s Statement of Claim includes an allegation of negligence against the defendant for the disclosure of confidential information, the plaintiff pressed her case at trial on the basis that her cause of action arose through breaches of statutory duties. In particular, she asserted that the defendant breached Section 112 of the Workers Rehabilitation and Compensation Act; Section 10 of the Whistleblowers Protection Act (not Section 9) and one or more sections of the Freedom of Information Act. She proceeded upon the assumption that a breach of one or more of the statutes would give rise to a cause of action and her claim for damages.
(Footnotes omitted).
The appellant appealed the District Court judgment. The appeal notice has been amended by the appellant and various paragraphs have been struck out by order of the Court. It sets out the following grounds of appeal:
2.Para 4 the Honourable Judge erred by refusing the plaintiff’s application to amend the statement of claim, after further discovery of documents, claiming that the amended statement of claim was a new claim, which it was not, a solicitor provided by Justice net amended the claim in legal language.
…
12.The Honourable erred by making erroneous assumptions regarding the plaintiff’s motivation and steps she took in relation to the concealment of documented evidence over the last 12 years, putting forth a perception that they have been clouded over the years through constant rumination. Any inability to present a clear mental picture of any aspects in this case is linked to the wilful neglect to discover documents and concealing evidence in this case, as well as in the defamation trial before Magistrate Hiskey, which was the cause of her diabetes. The medical condition is also relevant to the honourable Judge’s comments that he assisted her to focus during the trial.
…
22.The Honourable Judge erred by claiming that the Public Interest Disclosure made to an appropriate authority was made voluntarily sic and that the information was not solicited (sic) even though Mr Owens admitted that there was a big campaign to report corruption.
23.The Honourable Judge erred by stating that Mr Owens had a choice, sic and was under no obligation to report the matter to the Anti-corruption branch of the police for full and proper investigation into the plaintiff’s allegations, thereby varying the Whistleblower’s Protection Act.
WHISTLEBLOWER’S PROTECTION ACT
SECTION 10
1.The Honourable Judge erred in finding or suggesting that the rights and protections conferred by Parliament in the Whistleblower’s Protection Act upon persons who disclose misconduct by public officials to appropriate persons within the meaning of that act may cease by any reason of any process other than the process prescribed by Parliament in section 10 of that act.
2.The Honourable Judge erred in finding or suggesting that anything other than a conviction pursuant to section 10 of that Act may terminate the protections provided to any person who discloses misconduct to an appropriate person.
2aThe Honourable Judge erred in finding that the Appellant was not protected by the said Act and in particular by sections 5(5), 7 and 9 of the said act.
2bThe Honourable Judge erred in finding that the Appellant’s knowledge of the Act was in any way relevant to her rights under that Act and that the said Act does not protect every person who makes a disclosure whatever that persons motives, legal knowledge or state of mind until that person is convicted of an offence pursuant to section 10 of that Act.
…
18.The Respondent evaded their obligation by deliberately failing to make full and proper discovery of documents for over a decade, the ministerial and the current FOI schedule of exempt documents have still not been discovered, yet the plaintiff was put under undue pressure and oppressed during the trial.
20.Due to the undue stress and oppression to close her case unwillingly, lack of sleep and not taking her insulin, the plaintiff fell asleep during Mr John White’s oral submission, in which he referred to her as a liar. The trial continued even though the plaintiff was asleep. The video can prove that this was the case.
By an interlocutory application, the respondent sought an order for security of the costs of the appeal from the District Court judgment. Vanstone J granted the application and ordered the appellant to give security in the sum of $6,000 within one month of 17 October 2012 failing which all further proceedings were stayed. She did so on the basis that she was satisfied that:
(a)the appellant is impecunious;
(b)the only matter of substance remaining on the notice of appeal concerns the application of the Whistleblowers Protection Act;
(c)none of the other grounds of appeal concerning the manner in which the learned judge conducted the District Court trial could be substantiated by the appellant by reference to the transcript of the trial; and
(d)on the authorities[2] special circumstances were established.
[2] Citicorp v Cirillo (2003) 228 LSJS 132; Archer v Woodhead Australia Pty Ltd, unreported, 29 March 1995, BC9503154 per Lander J; Diakos v Mason [2010] SASC 108 per Kourakis J; Dagenham Nominees Pty Ltd v Shanks (2011) 110 SASR 577; cf. McVicar v S & J White Pty Ltd (2006) 245 LSJS 177 per White J.
Vanstone J explained her reasons as follows:[3]
I find that there are in this case special circumstances for making the order. The history of the litigation of this issue, in its two forms, is unfortunately long. The trial of the most recent claim in the District Court occupied some eleven days, although from start to finish it was some 23 days, owing to adjournments granted to Ms Morgan at various times. The reasons for decision of Judge Griffin are quite extensive and cogent. I see no indication within them that Ms Morgan was denied a fair hearing or unjustly deprived of pursuing any aspect of her claim. Neither does a reasonably quick review of the transcript of the trial tend to justify any of the complaints she made to me about the conduct of it. The only ground of appeal now extant of any substance concerns the interpretation of the Whistleblowers Protection Act and the application of provisions of that Act to the factual matters underpinning the litigation.
The decision of Mr Hiskey SM came on appeal to this Court. The appeal was heard by Olsson J. I agree with Mr White’s argument that Mr Hiskey determined that the Whistleblowers Protection Act did not give public interest immunity to the letter which Ms Morgan wrote to WorkCover, which was the genesis of the litigation. Mr Hiskey found that the letter was motivated by malice. Accordingly, the Whistleblowers Protection Act does not avail Ms Morgan.
It is not to the point that Ms Morgan claims that Mr Hiskey was misinformed as to whether or not WorkCover had conducted an investigation into the complaints made by her in the letter. Even had it done so, any findings made would have been hearsay so far as Mr Hiskey was concerned. In other words, the critical factor relied on before me by Ms Morgan – that Mr Hiskey erroneously found that WorkCover had conducted an investigation into the validity of the assertions made in her letter – was not a matter upon which Mr Hiskey’s conclusion of malice turned; nor indeed did any other conclusion the magistrate made.
[3] [2012] SASC 190 [13] – [15].

The grounds set out in the notice of appeal against the orders made by Vanstone J are:
1.the learned Justice erred by ordering a non-corporate litigant to pay security for costs.
2.The Appellant has a very good chance of winning her Appeal.
3.Being impecunious should not be a reason to deny the Appellant the opportunity to seek justice. Justice has to be seen to be done.
4. The learned Justice erred by failing to give any consideration whatsoever to the decisions of the very Honourable Judge Sulan, as he was then known, In His Honour’s Judgement No (2001) SADC 122 of Judgement No (2001) SADC 52.
5.The Learned Justice erred by stating that this action is a re-litigation of the defamation trial.
6.The Honourable Judge Sulan, as he was then known, sorted out this nonsense of a re-litigation and collateral attack in the argument that the Dr Baxter put before his honour on the 7.3.01 refer pages 1-25.
7.The Respondent had the opportunity to Appeal that decisions of the Honourable Judge Sulan, but declined to do so.
8.This Action, is a new action, against the Respondent for failing to pass information of serious misconduct of one of it’s senior employees onto the Anti-corruption Branch of the SA Police for full and proper investigation as in accordance with section 5. And sub section 5b of the Whistleblower,s Protection Act.
9.This is a new Action against the Respondent for releasing the Appellant’s documents and personal information to the senior employee and his solicitor to assist the senior employee to take legal action against the Appellant, without first consulting with the Appellant, which is in breach of sec 26 of the Freedom of Information Act.
10.The Respondent, by letter dated the 27.9.94 provided the Appellant with assurance of confidentiality, then negligently breached that assurance of confidentiality by providing the senior employee with the Appellants Public Interest Disclosure. Technical breach of section 112 of the Workers rehabilitation and compensation act, as admitted by the Respondent in letters dated the 28.4.95 and 1.6.95, then again in the Respondent’s list of 3^rd Party discovery in the defamation trial.
11.The Honourable Justice erred by claiming on page 48 line 10-11 of the transcript dated the 26.9.12 Her Honour: “Yes, I don’t think I need to trouble myself with Sulan J’s Judgement that’s it.
12.The learned justice erred in law in finding that the rights conferred by parliament upon Whistleblower’s as defined in The Whistleblower’s Protection Act may be removed by the Respondent or other process except the process provided by parliament in that Act and that the appellant therefore has no basis for her appeal since the rights granted to her by parliament had been removed by a process other than that process.
Power of the Court to dismiss the appeal
6SCR 295(1)(g) confers power on the Court to summarily dismiss an appeal if it is obvious that it cannot succeed.
In Purins v Alpine Constructions Pty Ltd[4] Debelle J said the power conferred by the rule may be exercised by a single judge of the Court.[5] As a general rule, a judge would not exercise the power unless the appeal is so defective in its form or substance that it must be struck out, either as failing to invoke the jurisdiction of the Full Court, or the appeal is an abuse of process, or it is clear beyond argument that the appeal must fail. The power conferred by the rule is similar to the power conferred by 6SCSR 232 which confers power on the Court to grant summary judgment. The power is to be exercised cautiously and only where it is obvious that the claim or defence is without merit. Ultimately, the test is fixed by the language of the rule. The Court must be satisfied that it is obvious the appeal cannot succeed before it will make an order for summary dismissal. The onus of satisfying the Court that the order should be made rests on the respondent.
[4] [2008] SASC 11.
[5] [2008] SASC 11 at [2].
The second appeal
It is convenient to deal first with the application for summary dismissal of the second appeal.
The second appeal is from an interlocutory judgment. The judgment is interlocutory because the order for security for costs does not finally dispose of the proceedings.[6] Accordingly, permission to appeal is required.[7] It is also a discretionary judgment. Whether an order for security should be made involves the exercise of a judicial discretion. An appeal from a discretionary judgment is to be determined in accordance with the well-known principles in House v The King.[8]Accordingly, the appellant on appeal must demonstrate that in ordering security for costs, Vanstone J erred in acting upon some error of law or principle, in failing to consider some relevant matter, considering some irrelevant matter, mistaking the facts, or that the result is so obviously wrong that although an error cannot be identified, the Court is satisfied that one must have occurred.
[6] Levy v Bablis [2012] NSWCA 77 at [19].
[7] 6SCR 288(1)(a)(i).
[8] (1936) 55 CLR 499 at 504 – 505.
The parties’ submissions
The respondent submits that the appeal from the order made by Vanstone J is clearly and obviously hopeless. None of the grounds of appeal are a proper basis to challenge the order for security for costs. Grounds 1 and 3 are essentially complaints that the judge’s discretion should have been exercised differently. Ground 2 is an assertion that the appeal from the District Court judgment is meritorious without substantiating that claim in any way. Grounds 4, 6, 7 and 11 proceed on a fundamental misunderstanding of the substance and effect of the judgment of Judge Sulan (as he then was) in Morgan v WorkCover.[9]Grounds 5, 8, 9, 10 and 12 are an attempt to restate the sole issue which underpins the appeal from the District Court judgment, namely, the interpretation and application of the Whistleblowers Protection Act. They reiterate arguments considered and dismissed in the judgment of Judge Griffin which is plainly correct.
[9] [2001] SADC 52 and [2001] SADC 122.
The appellant submits that the fact of her impecuniosity should not keep her out of her appeal. The effect of the order made by Vanstone J is to stultify the appeal. She submits her appeal from the District Court judgment is meritorious. She submits that Mr Hiskey SM and Olsson J were misled into believing that WorkCover had undertaken an investigation into her allegations against Mr Mallard which led them into error. She submits that she has done nothing wrong. Further, she submits that Judge Griffin misinterpreted the Whistleblowers Protection Act in finding that she was denied the protection afforded by s 5 in circumstances where she had not been prosecuted or convicted of an offence pursuant to s 10 of that Act for making a false disclosure. She seeks to rely upon what she describes as a finding by Judge Sulan, as he then was, that the District Court action is not a collateral attack on the judgment of Mr Hiskey SM or the judgment of Olsson J on appeal.
On the hearing of the application, the appellant, who was self-represented, sought to traverse the lengthy history of the litigation involving not only the respondent, but also Mr Mallard. She appeared unable to understand or direct her submissions to the principles which decide an appeal from a discretionary judgment. Attempts to direct her attention to the identification of a relevant error in the reasons or order of Vanstone J were largely unsuccessful.
Consideration
I consider this is an appropriate case to exercise the power conferred pursuant to 6SCR 295(1)(g). I consider it is obvious that the appeal from the orders of Vanstone J cannot succeed.
The appellant has failed to identify any error of law or principle made by the learned judge. Further, she has failed to identify any instance of the learned judge failing to consider some relevant matter or considering some irrelevant matter or mistaking the facts. Neither has she satisfied me that the order for the provision of security for the costs of the appeal from the District Court judgment in the sum of $6,000 is so obviously wrong that although no error can be identified, I should be satisfied that the exercise of the discretion must have miscarried.
The learned judge correctly identified the test to be applied in determining whether an order for security of costs of an appeal is appropriate.[10]
[10] Morgan v WorkCover Corporation [2012] SASC 190 at [12].
6SCR 295(1)(g) provides:
[T]he Court may, in special circumstances, order that security be given for the costs of an appeal.
Impecuniosity can amount to a “special circumstance” per se. In Archer Pty Ltd v Woodhead Australia Pty Ltd[11] Lander J said:[12]
The impecuniosity of an appellant may constitute a special circumstance leading the court towards ordering security, in that it is a circumstance which may deprive or delay a respondent receiving his costs of the appeal, if the appeal fails, which costs a successful respondent can usually expect he will actually receive. In an appellate situation, a respondent seeking security is in a stronger position than a defendant at first instance, to the extent that he has a decision in his favour, which is presumed to be right until displaced. However, impecuniosity may not conclude the matter. Considerations of possible frustration of an apparently genuine appeal or concerning the subject matter of the appeal, such as appeals involving matters of great moment or the liberty of the subject, may provide reasons to refuse an order. The foregoing observations are made not to circumscribe the discretion, but in order to indicate its width.
[11] Unreported, Lander J, 29 March 1995.
[12] Unreported, Lander J, 29 March 1995 at 5.
The operation of this rule was considered by Blue J in Dagenham Nominees Pty Ltd v Shanks.[13]
[13] (2011) 110 SASR 577.
His Honour considered that the correct approach to the application of 6SCR 295(1)(g) is that:[14]
1.impecuniosity of the appellant (at least in the case where the appellant is a company) can suffice to enliven the discretion of the court;
2.the mere fact that the appellant is impecunious does not mean that the discretion ought to be exercised in favour of granting security for costs (in the same manner as pursuant to s 1335).
[14] (2011) 110 SASR 577 at 586 [54].
His Honour reached this conclusion for the following reasons:[15]
1.It accords with, and applies, the decisions of the New South Wales Court of Appeal in Kennedy v McGeechan and Lall v 53-55 Hall Street, where the relevant rule and context were essentially identical to the present and which have been applied on at least three occasions in this Court.
2.The traditional general law approach described in Cowell v Taylor distinguished between actions at first instance (where impecuniosity did not justify an order for security) and appeals (which were an exception to that general rule).
3.The Full Court in Collins v Emacord Autos applied the traditional general law approach in the context of an application for security for costs at first instance and to a natural person.
4.The reference to “special circumstances” in the predecessor to r 194 was in a very different context to the reference in r 295(1)(g) in that it was the last and residual category after four more specific categories were enumerated, and those specific categories themselves included impecuniosity in paragraph (a) (impecuniosity plus nominal plaintiff) and (d) (circumstances authorised by statute, including s 1335 of the Corporations Act).
5.Rule 295(1)(g) uses the criterion “in special circumstances” as the sole criterion to cover every appeal in which security for costs may be sought. This will include both individual and corporate appellants and will also include any of the circumstances in which r 194 would be satisfied (eg appellant resident outside Australia, appeal brought for ulterior purpose etc).
[15] (2011) 110 SASR 577 at 586 [55].
While his Honour, in Dagenham, was addressing the position of an appellant who was a company rather than a natural person, I am satisfied that the same approach should be applied to the position of a natural person. In saying that, I do not overlook the traditional reluctance of courts to order security for costs against natural persons, but I consider that the operation of 6SCR 295(1)(g) is not intended to be confined to corporate litigants.
Applying those principles, the power of the Court to order security for costs is enlivened by the fact of impecuniosity. The appellant does not challenge the finding that she is impecunious. She submits that an order for security of costs on appeal cannot be made against an impecunious non-corporate litigant. I reject this submission. It is plainly contrary to the reasons in Dagenham. The fact that an impecunious litigant is a natural person rather than a corporation is merely a factor, albeit an important factor, for consideration in determining whether to make an order for security. Vanstone J plainly considered this matter. Further, the fact of the appellant’s impecuniosity was neither the sole factor upon which the learned judge based her decision, nor the only factor relied on. In my view, the learned judge’s conclusion that there was no basis for the appellant’s complaint about the unfairness of the conduct of the trial is correct. I also consider her Honour’s conclusion that the only issue of substance left on the appeal is the interpretation and application of the Whistleblowers Protection Act is correct. The appellant’s submission in relation to that issue is untenable. She contends that Judge Griffin’s conclusion that she is denied the protection of s 5 of that Act is erroneous because she has not been prosecuted or convicted pursuant to s 10 for making a false disclosure.[16] That submission is fundamentally wrong, and involves a misinterpretation of the Act. Again, Vanstone J’s conclusion that the Whistleblowers Protection Act does not avail the appellant is plainly right, given the finding of fact made in the District Court action. The appellant cannot demonstrate any mistake of fact on the part of Vanstone J. The appellant’s reliance upon the reasons of Judge Sulan, as he then was, in two decisions given in 2001 also is misconceived. His Honour was dealing with arguments as to pleadings at an interlocutory stage of the proceedings. Judge Sulan did not make any findings of fact. Further, neither of those decisions involves any conclusion about a collateral attack. In any event, and more importantly, the reasons of Vanstone J do not depend upon any conclusion based on a finding that the proceedings in the District Court involved a collateral attack on the judgments delivered by Mr Hiskey SM and Olsson J. Her Honour did not conclude that the District Court proceedings were a re-litigation of the defamation trial. Finally, her Honour was correct in her view that the appellant’s claim that Mr Hiskey SM and Olsson J were misinformed as to whether or not WorkCover had conducted an investigation into the complaints she made in the letter, is irrelevant. Whether WorkCover had conducted an investigation into the validity of the claims made in the letter was not germane to the magistrate’s finding of malice. The dissatisfaction of the appellant with the Court’s conclusion does not demonstrate error or that the exercise of the discretion has miscarried.
[16] I note that Olsson J also considered the application of the Whistleblowers Protection Act in the defamation appeal. See Morgan v Mallard (1997) 68 SASR 184 at 197 – 198.
Accordingly, I am satisfied that it is obvious the appeal from Vanstone J cannot succeed. It follows that I should make the order sought for summary dismissal of the appeal. While the power conferred upon the Court by 6SCR 295(1)(g) must be exercised sparingly, I consider this is an appropriate case to do so. It follows that I should also dismiss the application for permission to appeal from Vanstone J.
The first appeal
The respondent submits that I should also dismiss the appeal from the judgment of Judge Griffin. It submits that I should do so because the appeal cannot proceed given my decision to dismiss the second appeal and the appellant’s acknowledgment that by reason of her impecuniosity, she is not in a position to provide security in accordance with the order made by Vanstone J.
I am not prepared to grant the respondent’s application at this juncture. In my view, it would be premature to do so without first affording the appellant the opportunity to provide the security ordered. I do not dismiss the application at this stage, but refrain from making the order sought by the respondent without affording the appellant a reasonable opportunity to provide security and, if necessary, to be heard further.
Conclusion
I make the following orders:
1.The appellant’s application for permission to appeal from the orders made by Vanstone J on 17 October 2012 is dismissed.
2.The appellant’s appeal from the orders made by Vanstone J on 17 October 2012 is dismissed.
I will hear the parties as to costs.