Ryan v Bunnings Group Limited
[2021] ACTCA 43
•12 November 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
| Case Title: | Ryan v Bunnings Group Limited | ||||||||
| Citation: | [2021] ACTCA 43 | ||||||||
| Hearing Date: | 12 November 2021 | ||||||||
| Decision Date: | 18 November 2021 | ||||||||
| Before: | Mossop J | ||||||||
| Decision: | See [55], [74], [105] and [119] | ||||||||
| Catchwords: | APPEAL – APPLICATION IN PROCEEDING – Appeals against | ||||||||
| orders made in five personal injury proceedings – application by each respondent for security for costs – where one respondent also seeks that the appeal be struck out as incompetent – self-represented appellant – where appellant is impecunious – | |||||||||
| where making orders for security in the sums sought would likely | |||||||||
| end proceedings – not appropriate to undertake a detailed assessment of the appellant’s prospects of success – each | |||||||||
| application dismissed with costs | |||||||||
| Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT), s 168 Court Procedures Rules 2006 (ACT), pt 2.17, rr 1900, 1901, 1902, 5001, 5302, 5472 Family Law Act 1975 (Cth) | ||||||||
| Cases Cited: | Benjamin v GB Franchising Australia Pty Ltd [2008] ACTCA 11; 1 ACTLR 287 Davey v Herbst (No 2) [2012] ACTCA 19 De Groot v Nominal Defendant [2004] NSWCA 88 Draoui v Le [2020] SASC 155 Fox v Percy [2003] HCA 22; 214 CLR 118 Hughes v Janrule Pty Ltd [2011] ACTCA 15; 177 ACTR 1 McDonald v Coles Myer Ltd (trading as Kmart Chatswood) [1995] Austr Torts Reports 81-361 QA v Chief Psychiatrist of the ACT [2018] ACTCA 10 Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550 | ||||||||
| Ryan v O’Halloran (No 2) [2021] ACTSC 230 | |||||||||
| Twining v Curtis [2014] ACTCA 19 | |||||||||
| Parties: | Mark Ryan (Appellant) Bunnings Group Limited (Respondent in ACTCA 6 of 2021) | ||||||||
| Eastlake Football Club Limited (Respondent in ACTCA 7 of 2021) Tejinder Bhagria (First Respondent in ACTCA 8 of 2021) | |||||||||
| AAI Limited t/as GIO (Second Respondent in ACTCA 8 of 2021) | |||||||||
| Jade O’Halloran (First Respondent in ACTCA 9 of 2021) | |||||||||
| Stephen Cain (First Respondent in ACTCA 10 of 2021) | |||||||||
| |||||||||
| (Second Respondent in ACTCA 9 & 10 of 2021) | |||||||||
| Representation: | Counsel | ||||||||
| Self-represented (Appellant) | |||||||||
| D Shillington (Respondent in ACTCA 6 of 2021) B Kelleher (Respondent in ACTCA 7 of 2021) S Onitiri (Respondents in ACTCA 8 of 2021) | |||||||||
| W Fitzsimmons (Respondents in ACTCA 9 & 10 of 2021) | |||||||||
| Solicitors | |||||||||
| Self-represented (Appellant) Bradley Allen Love (Respondent in ACTCA 6 of 2021) Sparke Helmore (Respondent in ACTCA 7 of 2021) | |||||||||
| Moray & Agnew (Respondents in ACTCA 8 of 2021) HWL Ebsworth (Respondents in ACTCA 9 & 10 of 2021) | |||||||||
File Numbers: | ACTCA 6 of 2021 ACTCA 7 of 2021 ACTCA 8 of 2021 | ||||||||
| ACTCA 9 of 2021 ACTCA 10 of 2021 | |||||||||
Decision under appeal: |
|
O’Halloran & Ors; Ryan v Bhagria & Anor
Citation: [2020] ACTSC 353
MOSSOP J:
Introduction
1. The appellant, Mark Ryan, has appealed against orders made by a judge of this court in five personal injury proceedings. Those proceedings were heard together and ran for 28 days between February 2019 and February 2020. The decision was given on 23 December 2020: see Ryan v Bunnings Group Limited; Ryan v Eastlake Football Club
Limited; Ryan v O’Halloran & Ors; Ryan v Bhagria & Anor [2020] ACTSC 353. Each of
the respondents in the five separate appeals have applied for security for costs of the appeal. One of them has also sought to have the appeal struck out because the appeal
is “incompetent”.
2. The appellant was represented before the primary judge. He is unrepresented in the appeal proceedings.
3. While the applications for security were put on in April and May 2021, the applications were only listed for hearing on 12 November 2021.
4. All of the parties filed affidavit evidence and written submissions in relation to the applications. During the pendency of the applications, the appellant was granted leave to file an Amended Notice of Appeal which made his grounds of appeal more coherent.
5. In relation to the evidence relied on by the appellant:
(a)
Significant portions of the affidavits relied upon were inadmissible but were treated as submissions, as they explained the chain of reasoning that was to be adopted by the appellant in relation to various aspects of the evidence.
(b)
Some documentary material relied upon by the appellant was material which was not admitted into evidence before the primary judge. In relation to this evidence, it was admitted for the purposes of the present applications on the basis that it was evidence that the appellant would seek to have admitted as further evidence on the appeal. This was done notwithstanding that the evidence on the application did not extend to an explanation as to why it was not tendered below and hence it was very difficult to assess the prospects, if any, of the appellant being successful in having that evidence admitted as further evidence on the appeal.
Documents relevant to applications in all appeals
6. Some of the evidence was common as between all of the applications. That was evidence contained in the affidavit filed 9 November 2021, in particular the exhibits to that affidavit. It is not necessary to describe the rulings made in relation to the admissibility of that material.
7. The appellant also filed written submissions on 9 November 2021 which related to all of the appeals. This was in addition to submissions that he had filed in relation to individual appeals. These submissions asserted that he had good prospects of appeal and that his current financial position was largely as a result of the incidents the subject of the proceedings. He submitted that the estimated cost of the appeal would be minimal as he would only rely on a small number of documents and selected sections in the transcript.
He submitted, ominously, that the hearing of the appeal would involve “two days at most
for each of the appeals”. He submitted that he was 65 years old and receiving a disability
pension. He submitted that he could afford to pay as security $5000 in relation to each
appeal, or a total of $25,000 which he could pay via a loan.
Ryan v Bunnings Group Limited
Application and documents
8. By an application in proceeding dated 22 April 2021, Bunnings Group Limited (Bunnings)
applied for orders that the appellant’s appeal be dismissed on the grounds that it is
incompetent or does not contain any coherent or arguable grounds of appeal. Further or in the alternative, Bunnings sought orders that the appellant pay security for costs of $45,000 and that the proceedings be stayed pending payment of that money into court and dismissed if the amount has not been paid within six months of the orders being entered.
9. The supporting affidavit was that of Ian Meagher sworn on 22 April 2021.
10. Bunnings relied upon submissions in support of that application dated 12 May 2021.
11. The appellant filed an Amended Notice of Appeal on 31 August 2021.
12. The appellant filed written submissions dated 5 October 2021.
13. Bunnings filed written submissions in reply on 1 November 2021.
Submissions
14. In the submissions in reply, Bunnings did not press the application to dismiss the Notice of Appeal on the basis that it was incompetent or did not contain any coherent or arguable grounds of appeal. That left only the application for security for costs.
15. Counsel for Bunnings submitted that the basic principles were outlined in Twining v Curtis [2014] ACTCA 19 (Twining) at [14]-[16]. Counsel also pointed to the decision in Hughes v Janrule Pty Ltd [2011] ACTCA 15; 177 ACTR 1 (Hughes) as a case involving an application for security for costs in an appeal in personal injury proceedings. Similarly, he referred to the consideration of that case in Draoui v Le [2020] SASC 155 (Draoui).
16. Bunnings submitted that the following facts were relevant to the discretion:
(a). The appellant’s prospects of appeal were low. (b). The appellant is a recently discharged bankrupt. (c). Impecuniosity was a lesser issue because these are appeal proceedings. (d). Prior to entering bankruptcy, the appellant had transferred assets out of his name into the name of his partner which otherwise could have met an adverse costs order. (e). Bunnings incurred $234,000 for costs in the court below and has a costs order
in its favour, which it considers will be of little utility.(f). The appellant has failed to comply with court orders previously, which is likely
to increase the costs of the appeal proceedings.(g). The appellant had previously failed to disclose his bankruptcy when consenting
to past costs orders.(h). Although the appellant has been invited to explain his financial capacity, he has
not done so.17. The Amended Notice of Appeal has three grounds:
(a). Her Honour Justice Loukas-Karlsson erred in concluding the Respondent and/or its
employees did not breach its duty of care to the Appellant [para 222].
(i) Her Honour erred in accepting the version of the incident given by the employees of the Respondent, Ms Vicki Schramm and Ms Sandra Westlin.
(b). Her Honour erred in concluding the Respondent did not cause the injuries of the
Appellant [para 223].
(c). Her Honour erred in concluding that the assessment of damages is entirely
dependent upon the credibility of the Appellant [para 224].
18. The asserted merits of these grounds are elaborated upon in the appellant’s written submissions of 5 October 2021. They were also addressed in the respondent’s
submissions filed 1 November 2021.
Ground (a)
19. The submissions point to the finding by the primary judge that there was a trivial degree of contact between the appellant and Ms Vicki Schramm, an employee of Bunnings.
20. The appellant’s claim was that Ms Schramm suddenly and without warning swung her
left arm, accidentally hitting the appellant in the nose when entering the premises at Fyshwick on 18 January 2012. She and Ms Westlin were near the entrance of the premises. They were both talking about a particular air-conditioning unit. They were
looking into the shop. Her Honour accepted Ms Schramm’s testimony. Ms Schramm said
she felt the brush of something at the back of her hand and saw the appellant grabbing
his nose.21. The appellant submitted that Ms Schramm’s testimony was different to the contemporaneous incident report and the appellant’s email message to Bunnings. The
incident report describes the appellant as being struck in the nose by Ms Schramm’s hand. It says that she was “gesturing with her left hand” at the time. The appellant
submitted that the description given by Ms Schramm and her testimony was more
elaborate than the description in the incident report.22. The email message was an email from the appellant to Bunnings containing details of
the incident. It said that a larger female staff member “hit me in the face with her arm
open and fully extended”.
23. The submissions do not articulate in any detail why the two contemporaneous documents are inconsistent with the evidence of Ms Schramm.
24. Bunnings identifies that Ms Schramm was not cross-examined on her evidence that her arm was stationary and had been in place for seconds before the contact occur. The finding by her Honour at [191] was consistent with the case run by Bunnings, that the
appellant walked into Ms Schramm’s arm.
25. For that reason, based upon the submissions that have been made, I would tentatively
assess the appellant’s prospect of establishing this error as low.
26. The second error asserted relates to the primary judge’s finding that the contact between the appellant and Ms Schramm was “slight and trivial and of a brushing nature”. This is
said to have involved an error for a number of reasons:
(a).
The CCTV footage shows that the appellant moved forward after being hit on his nose and the appellant says that the contact must have been more than
“slight and trivial and of a brushing nature” to compel the appellant to bend forward and downward. (b).
In cross-examination, Ms Schramm said that the appellant did hold his nose but denied that he went down towards the ground holding his head and said she did not see that at all.
(c).
The evidence of Ms Westlin, who was not cross-examined, should not be given weight because she was still an employee of Bunnings when she gave evidence.
(d). There is undisputed medical evidence that his pre-existing nasal septal
deviation was aggravated by the incident on 18 January 2012. He points tomedical evidence of two doctors (Dr McGlynn and Dr Bowler) that “it is possible the septal deviation was aggravated in the Bunnings incident”. Bunnings refers
to the submissions that it made below recorded at [201] of the primary judgment which reproduced the opinion of Dr Bowler that significant force would be required and that while septal deviation was possibly aggravated by the incident, it was unlikely that nasal bone deviation was caused by the incident.
27. Having regard to the fact that her Honour had the benefit of seeing and hearing each of the relevant witnesses, I would assess this ground of appeal as being arguable but difficult for an appellant to succeed upon.
28. The third area is said to involve a failure to analyse the application of s 168(2) of the Civil Law (Wrongs) Act 2002 (ACT). Her Honour found that the gravity and likelihood of probable injury was low and that the burden of addressing the risk would be significant.
This is criticised on the basis that Her Honour’s analysis of s 168(2)(a) is “shallow”. The
appellant submits that Bunnings should train its employees not to engage in conversation near the entrance of the premises, that posters on the glass window near the entrance should have been removed and that the windows should have been tinted to prevent any glaring effects on the eyes of incoming customers.
29. Bunnings submitted that the allegations about the posters and tinting were not part of the pleaded claim. I do not accept that this contention is established having regard to the generality of the allegations of negligence.
30. Having regard to the submissions made about s 168 of the Civil Law (Wrongs) Act, I would assess this ground of appeal as being weak.
31. Overall, this ground of appeal appears to be weak.
Ground (b)
32. The appellant had a septal reconstruction on 15 February 2011. On 5 December 2011 he underwent revision of the nasal septal surgery. As a result of that, the deviated nasal septum was straightened and repositioned. The appellant points to the opinion of
Dr Lipsett that since the surgical operations, the appellant’s nasal bones have become
asymmetrical. There are some notes dated 26 May 2021 which could not have been before the primary judge. They express no expert opinion about the causal relationship between any asymmetry and the incident at Bunnings on 18 January 2012.
33. He also points to a report of Dr Wee that since the incident, the respondent has suffered
increased symptoms of sleep apnoea. The relevant passage of Dr Wee’s report appears
to be simply recording the history given to her rather than expressing a causal conclusion
of her own.34. He also points to a report of Dr Le Leu recording that the appellant has suffered from depression and anxiety following the incident. Dr Le Leu did attribute, at pages 29, 30 and 31 of his report, some proportion of causal connection for depression to the Bunnings incident.
35. The appellant also points to a report of Dr Buchholz that he has ongoing difficulties related to depression and anxiety as a result of injuries sustained on 18 January 2012
and 15 February 2014. This conclusion is in her report at page 5 under the heading “Your prognosis”. It appears to be based upon acceptance of the history given by Mr Ryan or
possibly that in the report of Dr Le Leu recorded as follows:
An (accidental) hit in the face by an employee at Bunnings Fyshwick. The force of the strike was enough to cause damage to his septum and a previous fracture site. Ongoing problems have been bilateral diplopia when looking laterally (when previously he had only had it in the left eye). Mr Ryan reported suffering depression following this incident.
36. The appellant submits that pursuant to the eggshell skull principle, Bunnings is liable for injury of an unforeseeable extent and hence liable for the septal deviation, sleep apnoea and depression.
37. This chain of reasoning depends upon the acceptance of the evidence of the doctors and acceptance that the symptoms described by the doctors were caused by the Bunnings incident. The question of causation was a matter not addressed in the identified passages other than that of Dr Le Leu and Dr Buchholz. Those two doctors were dependent upon the history given to them by the appellant. Finally, this ground is
necessarily dependent upon the appellant’s success on the earlier ground to establish
liability.
Ground (c)
38. This ground was not addressed in the appellant’s written submissions. However, it is
likely to be a difficult ground of appeal to establish in the absence of objective material
not dependent upon the reliability of the appellant’s history given to doctors.
Security for costs
39. The appellant submits that the fact that he has no assets is not the primary consideration in determining the question of security for costs. He says the primary consideration
should be the appellant’s prospects of success on appeal. He submitted that he had
demonstrated the merits of his case.
40. In submissions, Bunnings points to the asserted lack of merit in the appeal, the
appellant’s impecuniosity and what it asserts was unexplained conduct in transferring
assets out of his name prior to bankruptcy and not informing his counsel or Bunnings of
his bankruptcy when consenting to costs orders in the court below.
Conclusion
41. Rule 5001 of the Court Procedures Rules 2006 (ACT) provides that the provisions of part 2.17 apply to civil appeal proceedings. Part 2.17 includes division 2.17.8 which relates to security for costs. Rule 5302 provides that security for costs of an appeal is not required unless the Court of Appeal otherwise orders. As applied by r 5001, r 1900 provides that the court may order an appellant to give security it considers appropriate
for the respondent’s costs of the proceedings. Rule 1901, as adapted so as to apply to
appellate proceedings, provides that the court may order an appellant give security for
costs in various circumstances, the only one of which is relevant here is that “the justice
of the case requires the order to be made”: r 1901(h). Rule 1902 provides a list of
discretionary factors to be taken into account. They include:
(b) the prospects of success or merits of the proceeding;
(c) the genuineness of the proceeding;…
(e) whether the plaintiff’s lack of financial resources is attributable to the defendant’s
conduct;
…
(g) whether an order for security for costs would be oppressive;
(h) whether an order for security for costs would stop or limit the progress of the proceeding;
…
(m) the estimated costs of the proceeding.
42. The list of factors does not limit the matters which the court may take into account: r 1902(2).
43. The respondents relied upon the consideration of security for costs in Twining, an appeal from the dismissal of a claim for damages based upon a cause of action in injurious falsehood. Refshauge J pointed to the fact that it was significant that in an appellate
situation a decision had been made in the respondent’s favour, which must be taken to
be correct until set aside, and that it was relevant to take into account that the appellant
had already had a day in court and had lost on the merits.44. There are a number of authorities addressing the approach to be adopted in relation to the ordering of security for costs in appeals by plaintiffs in personal injury proceedings. They include de Groot v Nominal Defendant [2004] NSWCA 88 (de Groot) and Hughes. None of the respondents who were applying for security squarely grappled with these authorities in their submissions.
De Groot involved an appeal from a modest judgment in favour of a plaintiff in which the
primary judge had rejected the bulk of the plaintiff’s claim based on a contention that he
suffered significant brain damage in the accident. The primary judge’s judgment on
liability and damages was 250 pages in length. Very substantial costs had been incurred by the respondent at trial. The appellant was an infant and the tutor was substantially without means. Handley JA identified that the appellant faced obvious difficulties in the
appeal because of the judge’s findings on the credibility of witnesses. His Honour
continued at [25]:
The Court is not in any position, at this stage, to form a view on the appellant’s prospects of
success. There is really no reliable shortcut in a case such as this, and with the wisdom of experience the Court actively discourages satellite litigation as expensive, time wasting and unproductive. There is no point in hearing or half hearing the appeal in order to determine whether security for costs of the appeal should be ordered.
46. He noted that in that case, the relevant rule permitted an order for security for costs of
an appeal in “special circumstances” and referred to an earlier judgment of Hodgson JA
in which his Honour had said “in practice orders are not normally made simply because an appellant is impecunious, because to do so would frustrate many genuine appeals”.
Handley JA then continued at [29]:
The practice referred to has certainly applied, in my experience, in personal injury cases and it is practically unheard of for a plaintiff appellant to be ordered to provide security in such a case. I can only recall one instance where security was ordered and that was where a tutor with assets who had appealed an unfavourable decision was replaced almost immediately by a tutor without assets.
47. This decision was referred to with approval by Penfold J in Hughes. Her Honour noted that the requirement for special circumstances did not apply under the Australian Capital Territory (ACT) rules. However, her Honour said at [75] that, despite the absence of that requirement:
[T]here 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.
48. She referred to the reasons given by Handley JA and the default position that security for costs is not required on appeal: r 5302 of the Court Procedures Rules.
Notwithstanding that such cases might be described as a “class”, I agree with Bleby J in
Draoui at [82] that it is better not to characterise personal injury cases as a class but rather to consider any application in light of all relevant circumstances including the particular features of such cases.
49. Notwithstanding that the parties addressed the merits of the grounds of appeal in some detail and I have been lured into the commencement of such consideration, I do not
consider it appropriate to reach detailed conclusions on the merits of the appellant’s
appeal. As a matter of impression, it must be said that the grounds appear to be weak. However, they are coherent and I agree with Handley JA in de Groot that it is undesirable to engage in a detailed assessment akin to the hearing of the appeal for the purposes of assessing the question of security for costs.
50. Whether or not the appellant is impecunious as a result of the respondent’s conduct is
something which is enmeshed in the merits of his appeal. It is certainly not a case where that conclusion is apparent. Rather, it can only be said as a matter of general impression that, like the grounds of appeal, the contention appears to be a weak one.
51. I accept the assessment of solicitor and client costs made by Mr Meagher which indicates that they will exceed $45,000 and may be up to $85,000. It is not clear why the estimate was of solicitor and client costs rather than party and party costs. It would have been more appropriate if the costs of the appeal had been estimated in a way that broke down each component of the costs and hence exposed more clearly the basis upon which it is calculated. Nevertheless, I accept that the costs estimate is a reasonable one if the matter is prepared in the usual way. As I observe later in these reasons, there is some potential to reduce the cost burden of the proceedings upon the respondents.
52. Having regard to the limited evidence before me, I consider that the appellant is impecunious and that the making of an order for security in the sum sought would end the proceedings. The evidence of the appellant was that in relation to all of the appeals, he may be able to raise by a loan an amount of $25,000. To order security other than in a nominal sum would prevent the appeals from proceeding. In my view, ordering security in a nominal sum would not achieve any substantial protection for the respondent and would be likely to further delay the ultimate resolution of the appeals.
53. Bunnings placed some emphasis on the transfer of assets out of the appellant’s name
prior to entry into bankruptcy in 2017. While those facts may be correct, the evidence was not sufficient to establish that this was done for the purposes of avoiding liability of the costs of these proceedings. There is evidence that the appellant and his former partner entered into a binding financial agreement under the Family Law Act 1975 (Cth) and the evidence is not sufficient to establish that chronologically this was done by reason of a desire to avoid the possible adverse costs consequences of the litigation. It is however relevant to take into account that the appellant was only discharged from his bankruptcy in June 2019 and that he is unlikely to be able to meet existing or possible future adverse costs orders.
54. The relevant matters to consider are adequately captured in the provisions of r 1902 of the Court Procedures Rules which I have referred to. Having regard to the relevant factors in r 1902, I am not satisfied that is appropriate to make an order for security, because the justice of the case does not require the order to be made. Of those considerations, the principal ones in the present case appear to be that the claim is one relating to personal injury, the grounds of appeal are coherent even though they do not appear to be strong, the effect of making an order for security is likely to stifle the appeal and, accepting that there is the likelihood that there will be unrecoverable costs of the appeal if the appellant is unsuccessful, no particular injustice is identified as flowing to the respondent.
55. The order that I make on this application is:
1. The application in proceeding dated 22 April 2021 is dismissed with costs.
Ryan v Eastlake Football Club Ltd
Application and documents
56. Eastlake Football Club Ltd (Eastlake) filed an application on 9 April 2021 seeking that the proceedings be struck out pursuant to r 5472(1) of the Court Procedures Rules. In
the alternative, it sought an order that the appellant provide security for the respondent’s
costs by paying into court the sum of $50,000 and that until that was provided, the
proceedings be stayed.57. The supporting affidavit was that of Catherine Power sworn on 8 April 2021.
58. Eastlake filed written submissions on 20 May 2021.
59. The appellant filed an Amended Notice of Appeal on 31 August 2021.
60. The appellant filed written submissions on 8 November 2021.
61. Eastlake provided written submissions in reply dated 9 November 2021.
The Amended Notice of Appeal
62. The primary judge entered judgment for the appellant in the amount of $57,500. The grounds of appeal are:
(a). The damages awarded for imprisonment and assault are inadequate for the following
reasons:(i) Her Honour erred in finding the false imprisonment and assault were a result of an accident and misunderstanding [para 599].
(ii) Her Honour erred in failing to award aggravated and exemplary damages for
serious violation of the Appellant’s right during the assault and false imprisonment
[paras 593 and 599].
(b). Her Honour erred in failing to award damages for physical, cognitive and psychological
injuries sustained by the Appellant as a result of the assault and false imprisonment.(c). Her Honour erred in failing to award future loss of earning in favour of the Appellant
following the injuries stated in sub-paragraph (b) above.(d). Her Honour erred in failing to apply the egg-shell skull principle in considering the issue
of causation.
Submissions
63. In light of the filing of the Amended Notice of Appeal, the respondent did not press its application to strike out the Notice of Appeal.
64. The appellant contends that the finding at [599] of her Honour’s reasons was an error because the incident was a “misunderstanding and accident”.
65. The appellant was unlawfully detained and assaulted by security guards after he attempted to reclaim $300 of his own money from an employee of the respondent called Mr McArthur. He challenges the conclusion that Mr McArthur was confused as to whether or not the appellant owned money which the appellant had sought to grab from him. The appellant submitted that the assault and false imprisonment did not arise out of a misunderstanding and accident or that if they did, then the primary judge failed to articulate the relevant facts to support that finding.
66. The appellant asserts that the case was one warranting the awarding of exemplary damages.
67. Next, he challenges the award of $10,000 for false imprisonment saying that it was
“unprincipled and insufficient to compensate the Appellant for his psychiatric injuries”.
The period of detention was 25 minutes. The primary judge found that the false imprisonment would have been humiliating for the plaintiff in such a setting.
68. Relying upon McDonald v Coles Myer Ltd (trading as Kmart Chatswood) [1995] Aust Torts Reports 81-361, the appellant submits that the primary judge should have taken
into account the loss of social status of the appellant and the appellant’s mental suffering.
In relation to the latter issue, he submitted that the primary judge ought to have placed
reliance upon Dr Buchholz’s assessment that anxiety resulted from the assault.
69. In its primary submissions, the respondent submits that the primary judge engaged in a thorough and correct assessment of issues of credibility. Counsel submitted that impecuniosity was not caused by the respondent. He submitted that in relation to aggravated and exemplary damages, the primary judge had taken into account all relevant principles and that there was no particular error in the fact finding. He therefore characterised the prospects of the appeal as being very weak. He submitted that there was no evidence that the appellant could not raise more than the $25,000 that he had suggested he might be able to raise by way of a loan. The submissions were consistent with the written submissions filed in reply.
Decision
70. Ms Power estimates the solicitor and client costs of the appeal as being $113,975. That is based upon an estimated appeal hearing of five days and a requirement to examine over 1000 pages of transcript prior to the settlement of the appeal books. The respondent seeks an amount of $50,000. The cost estimate is in an appropriate form which exposes the basis of the calculations. The overall estimate was not challenged, and I accept that it would reflect the costs of the case if it was listed for the length set out in the estimate and prepared in the usual manner. However, I observe that there is significant room for a reduction in cost in this case by seeking orders departing from the usual orders in relation to certification of the transcript and the potential for cost reduction through cooperation between the respondents. Nevertheless, I accept that even if such measures were adopted, the cost of the appeal will be substantial and exceed the amount of security sought.
71. The evidence of Ms Power establishes that the appellant is impecunious.
72. Plainly, the appellant had a degree of success before the primary judge. However, the very significant difficulty for the appellant on appeal is his need to challenge the primary
judge’s assessment of him on issues of credibility. That is likely to present a very
significant barrier to success. It cannot be said that the grounds of appeal are strong. Rather, as a matter of impression, they appear to be weak. However, for the reasons described in de Groot, it is not appropriate to undertake a detailed assessment of the
evidence and the appellant’s prospects. That is particularly so in circumstances where
the making of an order for security in the sum sought is likely to prevent the appeal from
proceeding. That, in my view, is established73. Having considered the nature of the appeal and the factors that I have referred to above from r 1902 of the Court Procedures Rules, I am not satisfied that justice of the case requires the making of an order for security for costs.
74. The order of the Court is:
1. The application in proceeding dated 8 April 2021 is dismissed with costs.
Ryan v O’Halloran; Ryan v Cain
Related appeals
75. The O’Halloran matter refers to a motor vehicle accident on 20 December 2013 (MVA 1)
in relation to which there was judgment for the appellant in the sum of $11,190. The Cain matter arises from a motor vehicle accident which occurred on 31 August 2015 (MVA 2) in relation to which there was judgment for the respondent.
Application and documents – O’Halloran
76. The respondent in O’Halloran filed an application in proceeding on 30 April 2021 seeking
that the appeal be struck out as incompetent pursuant to r 5472 of the Court Procedures Rules. In the alternative, it sought an order that the appellant provide security for costs in the sum of $50,000 or such other sum as the court may determine and that the appeal be stayed until those costs are provided.
77. The application was supported by an affidavit of Jessica Smith affirmed on 30 April 2021.
78. The respondents in the O’Halloran and Cain matters filed an outline of submissions on
21 May 2021.
79. On 31 August 2021, the appellant filed an Amended Notice of Appeal.
80. On 8 November 2021, the appellant filed written submissions.
81. The respondents provided an undated supplementary outline of submissions in both the
O’Halloran and Cain matters.
Application and documents – Cain
82. The respondent filed an application in the same terms as the application made by the
respondent in the O’Halloran matter.
83. The application was supported by the affidavit of Jessica Smith affirmed on 30 April 2021.
The written submissions were jointly made in this matter and the O’Halloran matter (see
above at [78]).
84. The appellant filed an Amended Notice of Appeal on 31 August 2021.
85. On 8 November 2021 the appellant filed written submissions.
86. A supplementary outline of submissions was provided in this matter and the O’Halloran
matter (see above at [81]).
The grounds of appeal
87. The grounds of appeal are identified in the Amended Notices of Appeal.
88. In the O’Halloran matter, the grounds of appeal are:
(i). The damages awarded for general damages and medical expenses are inadequate for
the following reasons:
(a) Her Honour Justice Loukas-Karlsson erred in accepting the First Respondent’s version of the motor vehicle accident on 20 December 2013 [304].
(b) Her Honour Justice Loukas-Karlsson erred in concluding that the Appellant has failed to prove any injury as a result of the accident on 20 December 2013 [para 310]. (c) The award of the sum of $11,190 was unprincipled and primarily based on her Honour’s discretion.
(ii). Her Honour erred in failing to apply the egg-shell skull principle in relation to the issue
of causation.89. In the Cain matter, the grounds of appeal are:
(a). Her Honour Justice Loukas-Karlsson erred in accepting the First Respondent’s version of the motor vehicle accident on 31 August 2015 [para 654]. (b). Her Honour erred in concluding that the breach of the duty of care by the First Respondent did not cause any injury to the Appellant [662].
(c). Her Honour erred in failing to apply the egg-shell skull principle in considering the issue
of causation.
Submissions
90. In the respondents’ supplementary outline of submissions, the respondents maintained
the contention that the Amended Notice of Appeal on each matter be struck out as
incompetent pursuant to r 5472 of the Court Procedures Rules. Rule 5472 provides:(1) A respondent to the appeal may apply to the Court of Appeal at any time for an order
striking out the appeal as incompetent.
…
(2) The burden of establishing the competency of the appeal is on the appellant.
91. The respondents complain about the formulation of the grounds of appeal:
92. In relation to MVA 1:
(a). The respondents contend that ground (a) should be struck out as it does not disclose any coherent or arguable ground of appeal and does not reveal any legal or factual or discretionary error. It relies upon the statement in Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550 at [43] which in turn relies upon Fox v Percy [2003] HCA 22; 214 CLR 118 at [28]-[29]. (b). In relation to ground (b), the respondents assert that rather than finding a failure to prove any injuries, her Honour in fact found that it was unlikely that were injuries of ongoing significance. (c). In relation to ground (c), the respondents submitted that this failed to articulate
any valid ground of appeal.93. In relation to MVA 2, counsel for the respondents attacked ground (a) on the same basis as articulated in relation to MVA 1.
94. Counsel for the respondents points out that as a result of orders for costs which were made in favour of the respondent in each matter, the net effect of the principal judgment
and the orders for costs (see Ryan v O’Halloran (No 2) [2021] ACTSC 230) is that the
appellant is indebted to the respondents in the sum of $51,310 ($11,190 (judgment for the plaintiff) - $2500 (costs awarded in favour of the defendant in relation to MVA 1) - $60,000 (costs awarded in favour of the defendant in relation to MVA 2)).
95. In relation to security for costs, the respondents referred in particular to Benjamin v GB Franchising Australia Pty Ltd [2008] ACTCA 11; 1 ACTLR 287 and Twining.
96. In relation to MVA 1, counsel for the respondents submitted that her Honour carefully considered the lay evidence of the appellant, the first respondent and the medical evidence. After doing so, her Honour reiterated her earlier findings that the appellant lacked credibility and was an unreliable witness. Counsel submitted that a consideration of the judgment and the Notice of Appeal would lead to an inevitable conclusion that the appeal had no prospects of success.
97. In relation to MVA 2, her Honour considered the evidence of the plaintiff, the first respondent and her earlier finding that the plaintiff was an unreliable witness. She made specific factual findings about the minimal nature of the accident and concluded that the plaintiff did not suffer injury arising from the accident.
98. The appellant’s submissions in relation to MVA 1 were addressed to the following points:
(a). The first respondent’s version of the accident lacked credibility. (b). The appellant suffered a neck injury as a result of the accident, said to be disclosed by certain CT scan results and the opinion of Dr Kelman and Dr Bentivoglio. (c). The effect of the motor vehicle accident on the appellant’s mental condition as disclosed in the evidence of Dr Leigh Nomchong was not taken into account in
assessing general damages.(d). Her Honour erred in failing to apply the eggshell skull principle in light of Dr Mourad’s evidence;
(e). The award of general damages and medical expenses of $10,000 was contradictory to her Honour’s decision that the appellant had failed to establish
causation.
(f). The amount of $10,000 was not adequately supported by medical evidence but rather an outcome based upon her Honour’s discretion. 99. In relation to MVA 2:
(a).
There was evidence showing that the testimony of the respondent relating to the accident contained inconsistencies and ought not to be accepted. Those alleged inconsistencies were set out.
(b).
The appellant submitted that the impact of the accident was not trivial and did lead the appellant to sustain headaches as an immediate reaction and subsequently diplopia. He submitted that causation was established not by what he told his specialists but by the assessment of the relevant doctors.
Decision
100. I do not accept the submission that the appeal is incompetent by reason of the formulation of the grounds of appeal. In my view, an appeal was regularly filed. It has properly invoked the jurisdiction of the court. If there is some deficiency in the formulation of the grounds of appeal, then that is an irregularity within the proceedings and not one which means that the appeal is incompetent. However, I am not even satisfied that this threshold is met. The first two grounds of appeal assert error directed to particular paragraphs of the judgment. The third ground of appeal asserts an error of principle in
relation to the issue of causation. Insofar as the respondents’ submissions relied upon
the decision in QA v Chief Psychiatrist of the ACT [2018] ACTCA 10, it is not necessary to embark on a consideration of whether that decision correctly addressed the question of competence. It is sufficient to say that that case is distinguishable having regard to the
formulation of the “grounds of appeal” in that case.
101. I accept the evidence of Ms Smith that the respondents’ costs of preparing the appeal
will likely be in the vicinity of at least $60,000. I observe, however, that this estimate should have been broken down and disclosed the basis upon which it was calculated. It should have also made clear whether it represented party and party or solicitor and client costs. I have proceeded on the basis that it represents solicitor and client costs. I accept that this is a reasonable estimate of the costs if the matter is prepared in the usual way. I make the same observations that I have earlier about the possibility of some reduction in the costs if the usual procedures are departed from and if there is some cooperation between the respondents.
102. I accept that when considered at an impressionistic level, the prospects of the appeal appear to be weak. In particular, that is because it will be very hard for the appellant to
overcome the credibility findings which underpinned Her Honour’s conclusions about the
circumstances of each of the accidents. For the reasons I have given earlier, it is not
appropriate to undertake a more detailed assessment of prospects.103. In the event that security is ordered other than in a nominal sum, it will prevent the appeal from proceeding.
104. Having regard to the nature of the case, the circumstances of the appellant and the relevant considerations set out in r 1902 of the Court Procedures Rules, in my view no security should be ordered.
105. The order of the Court in each proceeding is:
1. The application in proceeding dated 30 April 2021 is dismissed with costs.
Ryan v Bhagria
106. The respondent filed an application in proceeding on 29 April 2021 seeking an order pursuant to r 5472 of the Court Procedures Rules striking out the appeal for want of competency. In the alternative, it sought an order that the appellant provide security for costs in the sum of $40,000 by payment into court and that the proceedings be stayed until that security was provided.
107. The application was supported by an affidavit of Chase Deans affirmed on 29 April 2021.
108. On 31 August 2021, the appellant filed an Amended Notice of Appeal.
109. On 5 November 2021, the appellant provided written submissions going to the merits of his appeal.
110. The respondent provided supplementary submissions in reply dated 10 November 2021.
Submissions
111. Because of the filing of an Amended Notice of Appeal, the respondent no longer pressed the application so far as it related to the competency of the appeal. However, the respondent pressed the costs of the application based on competency up until the date that the Amended Notice of Appeal was served.
112. In relation to security for costs, the respondent made submissions directed to each of the relevant considerations under r 1902. It submitted that the amount of $40,000 for security was a reasonable one having regard to the itemised estimate and the costs of the proceedings incurred at first instance. Counsel for the respondent sought to demonstrate
that the appellant’s impecuniosity was not the result of the accident. He identified the
very substantial existing costs order of the trial against the plaintiff and the possibility of
a further costs order. He rightly emphasised the difficulty of the appellant’s appeal in so
far as it sought to challenge findings based upon credibility.
113. The appellant’s submissions addressed the merits of each of his grounds of appeal.
Decision
114. In relation to the claim for costs arising out of the necessity to file the application objecting to the competency of the appeal, I accept that the Notice of Appeal originally filed on 20 January 2021 was defective in that the grounds of appeal, plainly drafted by a non-lawyer, did not properly identify the grounds of appeal. However, in my view the irregularity in the formulation of the grounds of appeal did not make the appeal
“incompetent” within the terms of r 5472. Competence relates to the capacity of the
purported appeal to invoke the jurisdiction of the court. Examples are given of lack of competency in Davey v Herbst (No 2) [2012] ACTCA 19 at [99]. Mere poor drafting of grounds of appeal in a case where an appeal exists as of right and is filed within time
does not render the appeal “incompetent”. The respondent is not entitled to its costs of
that aspect of the application up until the filing of the Amended Notice of Appeal.
115. I accept Mr Dean’s estimate of the likely costs of the appeal. It is based on a likely
two-day hearing. These costs are identified as costs likely to be incurred rather than recoverable party and party costs and I treat them on that basis. I note however that on an application such as this, generally the most useful estimate of costs is one of likely
party and party costs. I observe that the schedule of costs annexed to Mr Dean’s affidavit
contains an appropriate breakdown of the costs so as to enable a proper understanding
of how it is arrived at.116. In the primary proceedings, the respondent admitted that the motor vehicle accident had occurred and that it was as a result of the negligence of the respondent. The primary judge found that the appellant had failed to demonstrate that he suffered an injury as a result of the motor vehicle accident and there was a verdict for the respondent. The appeal asserts that her Honour erred in concluding that the appellant did not suffer any injury including concussion as a result of the accident. The appellant asserts a failure to apply the eggshell skull principle in relation to causation and the conclusion that the assessment of damages was entirely dependent upon the credibility of the appellant. He challenges the reliance upon the evidence of Dr Thomas Gibson (a biomechanical engineer) at [721] of the judgment.
117. Once again, as a matter of impression, it appears that it will be very difficult for the appellant to succeed on the appeal. However, for the reasons given earlier, it is not appropriate to engage in a detailed assessment of the prospects of success.
118. The ordering of security for costs in the sum sought, or in anything other than a nominal sum, is likely to prevent the appeal from proceeding. In my view, having regard to the relevant discretionary factors in r 1902, it is not appropriate to make any order for security for costs.
119. The order of the Court is:
1. The application in proceeding dated 29 April 2021 is dismissed with costs.
Additional note
120. In addition to making the orders that I have pronounced, I will make a note in each case in relation to the preparation of the appeal as follows:
1. In making directions about the preparation of the appeal, the Registrar or Senior Deputy Registrar should consider either making, or referring to a judge for the purposes of the judge making, orders to reduce the costs incurred in the preparation of the appeal including considering dispensing with the requirement for certification of the transcript of the proceedings below, the imposition of time limits on the making of oral submissions at the hearing of the appeal and any corresponding expansion of the permissible length of written submissions, and the making of orders for the separate identification of any additional evidence which the appellant seeks to have admitted on any appeal.
I certify that the preceding one hundred and twenty [120] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.
Associate:
Date: 1 March 2022
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