Morgan v WorkCover Corporation - [2012] SASC 190

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
MORGAN v WORKCOVER CORPORATION
[2012] SASC 190
Judgment of The Honourable Justice Vanstone
17 October 2012
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - SECURITY FOR COSTS
Respondent made application for security for costs of an appeal - whether special circumstances exist for ordering security for costs.
Held: application granted - appellant impecunious - main part of appellant's argument an attempt to relitigate issues which had already been determined in related proceedings - special circumstances made out.
Whistleblowers Protection Act 1993 (SA); Supreme Court (Civil) Rules 2006 r 295(1)(g), referred to.
Citicorp v Cirillo (2003) 228 LSJS 132; Archer v Woodhead Australia Pty Ltd (unreported, 29 March 1995, Lander J, BC9503154); Diakos v Mason [2010] SASC 108; Dagenham Nominees Pty Ltd v Shanks (2011) 110 SASR 577; McVicar v S & J White Pty Ltd (2006) 245 LSJS 177, considered.

MORGAN v WORKCOVER CORPORATION
[2012] SASC 190
Civil

VANSTONE J: By interlocutory application of 10 July 2012 (FDN3) the respondent makes application for security for costs for this appeal, which is against a decision made in the civil jurisdiction of the District Court.
The application is supported by three affidavits essentially setting out some history of the matter, being two affidavits of Ms Smith dated 10 July 2012 and 22 August 2012 and an affidavit of Ms Teoh dated 19 July 2012.
Mr John White, who appears for the respondent, argues that the appellant, Ms Morgan, is impecunious. He argues that this is demonstrated by the fact that she is in receipt of a disability pension, the fact that the only piece of real estate held in her name is subject to an unregistered mortgage of recent origin and the fact that none of the costs orders associated with this action, made in the District Court, and indeed in this Court, have been satisfied by her. The costs of the trial alone are estimated to be of the order of $12,900.
Mr White does not rely on impecuniosity alone. He also argues that there is no evidence before the Court that the appeal would be stultified were the order to be made. Then, importantly, he argues that the appeal is unmeritorious.
The notice of appeal originally contained a number of paragraphs. Most of them have subsequently been struck out by order of this Court. The ambit of the appeal has thereby been markedly reduced.
Mr White helpfully gathered together the threads of what is left in the notice of appeal (which has been supplemented by two paragraphs, the inclusion of which was allowed by Kelly J) into four areas. The first attacks the way in which the trial before Judge Griffin was conducted. The complaints made in this context include a lack of timely disclosure, the failure to allow amendment of the amended statement of claim, the failure to grant adjournments at various times and an argument going to the interpretation of the Whistleblowers Protection Act 1993. Mr White contends that the only matter of substance is that last. He argues that even there, the issue has previously been determined by Mr Hiskey SM in different but related proceedings, namely a defamation action taken by Ms Morgan against persons by the name of Mallard. Mr White argues that both the trial before Judge Griffin and this appeal amount to an attempt to re-litigate an issue which was determined against Ms Morgan many years previously.
Mr White further argues that if this matter is allowed to proceed without the order sought the respondent will be prejudiced, not only in terms of costs, but also by the further drawing out of the matter without there being any justification in terms of its substance.
In response Ms Morgan concedes that she is impecunious. She accepts that her only substantial asset is her house property and that is mortgaged at least to the extent of its value.
However, Ms Morgan argues that the order should not be made and she would be prejudiced were it to be made. She argues that she has a good case on the appeal. She argues that Mr Hiskey’s decision that she could not avail herself of public interest immunity under the Whistleblowers Protection Act was informed by an incorrect fact, being that WorkCover had investigated her complaint and found it to be without substance. She argues that this misinformation has permeated the entire history of the original proceedings and the later related proceedings. Although Ms Morgan makes allegations that the trial before Judge Griffin was conducted in a manner which prejudiced her fair hearing, she did not take me to any parts of the transcript which might have borne that out. She also argues that Judge Griffin was, in effect, biased, because of his business links with personnel from WorkCover, but no remaining ground of the Notice of Appeal raises that issue. Ms Morgan argues that she was unwell during the trial and that at times she was even asleep during the trial and further that during those periods important evidence was called and decisions made. Again I was not taken to the transcript to demonstrate the accuracy of those contentions.
In the event I do not find it necessary to go further than to consider the argument made under the Whistleblowers Protection Act. I agree with Mr White’s submission that that is the only substantial issue raised by the appeal notice.
I take the relevant principles to be as follows.
Under r 295(1)(g) Supreme Court Civil Rules 2006 a court may order that security for costs be given on an appeal, in special circumstances. Whether special circumstances can be constituted by proof of impecuniosity alone is not entirely clear, inasmuch as there are authorities going both ways: Citicorp v Cirillo (2003) 228 LSJS 132, [2003] SASC 204 per Sulan J; 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, [2011] SASC 163 per Blue J; cf. McVicar v S & J White Pty Ltd (2006) 245 LSJS 177, [2006] SASC 233 per White J. This is not a matter which I need decide because, as I have said, Mr White argues that there are factors going beyond Ms Morgan’s acknowledged impecuniosity. The existence of countervailing factors may disincline the court to make the order. These might include that it cannot be said that the appeal appears to be unmeritorious, that there is no evidence that the appeal would be stultified by an order for security for costs, that the liberty of the subject is at stake, or that a matter of substantial public interest is an issue.
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.
The order sought is that Ms Morgan pay into court the amount of $12,900 if the appeal is to proceed. That figure seems to be based on an appeal hearing of one day’s duration. However, the issues are now quite confined. I am prepared to make an order in terms of a smaller amount, namely of $6,000. The orders I make are as follows:
1.the application for security for costs is granted;
2.the appellant is ordered to give security for the respondent’s costs of the appeal in the sum of $6,000, to the satisfaction of the Registrar, within one month of 17 October 2012 and, in the absence of compliance with this order, all further proceedings are stayed;
3.the appellant is to pay the respondent’s costs of, and incidental to, the application.