Traynor v Cunningham
[2017] WASCA 125
•13 JULY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TRAYNOR -v- CUNNINGHAM [2017] WASCA 125
CORAM: MITCHELL JA
HEARD: 8 JUNE 2017
DELIVERED : 13 JULY 2017
FILE NO/S: CACV 10 of 2017
BETWEEN: SIMON TRAYNOR
First Appellant
PETER JAMES CLARK
Second AppellantGLENN ALEXANDER CALDWELL
Third AppellantAND
ROBERT LEE CUNNINGHAM
First RespondentCATHERINE MARY ATOMS
Second RespondentTHE STATE OF WESTERN AUSTRALIA
Third Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :DAVIS DCJ
Citation :CUNNINGHAM -v- TRAYNOR [2016] WADC 168
File No :CIV 3389 of 2011
Catchwords:
Practice and procedure - Application for security for costs - Impecunious appellants - Whether order for security for costs would stultify the appeal - Whether prospects of a costs order against union funding the appeal would make an order for security for costs redundant - Turns on own facts
Legislation:
Nil
Result:
Application for security for costs granted
Category: B
Representation:
Counsel:
First Appellant : Mr A Metaxas
Second Appellant : Mr A Metaxas
Third Appellant : Mr A Metaxas
First Respondent : Mr M D Cuerden SC and with him Mr T J Porter
Second Respondent : Mr M D Cuerden SC and with him Mr T J Porter
Third Respondent : No appearance
Solicitors:
First Appellant : Metaxas & Hagar
Second Appellant : Metaxas & Hagar
Third Appellant : Metaxas & Hagar
First Respondent : Maurice Blackburn
Second Respondent : Maurice Blackburn
Third Respondent : No appearance
Case(s) referred to in judgment(s):
Amaca Pty Ltd v Novek [2009] NSWCA 50
Attorney General v Michael [1999] WASCA 181
BPM Pty Ltd v HPM Pty Ltd (1996) 131 FLR 339
CMA Recycling Victoria Pty Ltd v Doubt Free Investments Pty Ltd (No 2) [2013] TASFC 10
Cunningham v Traynor [2016] WADC 168
Director, Office of the Fair Work Building Industry Inspectorate v CFMEU (No 2) [2013] FCAFC 34
George 218 Pty Ltd v Bank of Queensland Ltd [2016] WASCA 56
Gore v Justice Corporation Pty Ltd [2002] FCAFC 83; (2002) 119 FCR 429
Green v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105
Knight v FP Special Assets Ltd (1992) 174 CLR 178
Mann v Dabelstein [2006] WASCA 176
Murphy v Young & Co's Brewery [1997] 1 WLR 1591
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
The State of Western Australia v Cunningham [2017] WASCA 119
MITCHELL JA:
Summary
Dr Cunningham and Ms Atoms, who are the first and second respondents to this appeal, seek an order for security for costs against the appellants.
Dr Cunningham and Ms Atoms successfully sued the appellants and the State of Western Australia in the District Court of Western Australia. The action alleged tortious conduct arising out of their interactions with police in the early hours of 2 November 2008. During that incident, a Taser was deployed against both Dr Cunningham and Ms Atoms. They were placed under arrest and subsequently charged with obstructing a public officer. They were both acquitted of that charge.
The trial judge found various defendants to the District Court action liable for battery, misfeasance in public office, false imprisonment and malicious prosecution. Her Honour found that this conduct caused post‑traumatic stress disorder in both Dr Cunningham and Ms Atoms, and a back injury to Ms Atoms. Damages totalling $110,304.10 were awarded to Dr Cunningham. Damages totalling $1,024,822.11 were awarded to Ms Atoms.
The appellants have appealed against the judgment entered against them in the District Court. There is also a separate appeal against the judgment by the State, and a cross-appeal by the appellants, in CACV 11 of 2017.
For the following reasons, I will make orders for security for costs in the current appeal.
References to parties
It is convenient to refer to Dr Cunningham and Ms Atoms collectively as the plaintiffs, and to the other parties collectively as the defendants. From this point, I shall refer to the appellants collectively as the police defendants. Consistently with the trial judge's approach, I shall refer to the police defendants individually as Officer Traynor, Officer Clark and Mr Caldwell (recognising that Mr Caldwell is no longer a police officer).
Findings of the trial judge
Relevant background to this application includes the trial judge's findings of primary fact, her Honour's findings as to the basis of the defendants' liability and the grounds on which the State appeals. Those matters have been summarised by Murphy JA in dealing with the State's application for a partial stay of execution of judgment pending the outcome of the State's appeal.[1] I adopt that summary without repeating it in these reasons.
[1] The State of Western Australia v Cunningham [2017] WASCA 119 [6] - [66].
The trial judge's finding of those primary facts was based largely on her preference of the evidence of the plaintiffs over that of the police defendants, and her assessment of CCTV footage which showed the incident up to the point when Dr Cunningham was moved onto Essex Street. Her Honour made detailed findings based on a close examination of the CCTV footage,[2] as well as an audio-video recording at the police station.[3] The trial judge gave detailed reasons for finding the plaintiffs to be credible,[4] and for finding the police defendants to be lacking in credibility.[5] The trial judge gave considered reasons for each of the contentious factual findings which she made.
[2] Cunningham v Traynor [2016] WADC 168 (Primary decision) [150] - [241].
[3] Primary decision [242] - [280].
[4] Primary decision [284] - [308].
[5] Primary reasons [309] - [368].
Liability of the defendants under the orders
The amount for which each defendant was liable under the trial judge's final orders is as follows:
(a)The State: A total of $1,113,526.21, comprised of $119,704.10 owed jointly with all police defendants and $993,822.11 owed jointly with Officer Clark and Mr Caldwell.
(b)Officer Traynor: A total of $140,704.10, comprised of $119,704.10 owed jointly with all other defendants, $20,000 owed jointly with the other police defendants and $1,000 owed individually.
(c)Officer Clark: A total of $1,134,126.21, comprised of $119,704.10 owed jointly with all other defendants, $20,000 owed jointly with the other police defendants, $993,822.11 owed jointly with Mr Caldwell and the State and $600 owed individually.
(d)Mr Caldwell: A total of $1,133,526.21, comprised of $119,704.10 owed jointly with all other defendants, $20,000 owed jointly with the other police defendants and $993,822.11 owed jointly with Mr Clark and the State.
The police defendants' appeal
The police defendants have appealed against the trial judge's decision. They advance 24 grounds of appeal, all of which have a number of sub-grounds. In broad terms, the police defendants' appeal raises a large number of challenges to findings of primary fact made by the trial judge. The grounds themselves run for 15 pages. In very broad overview:
1.Grounds 1 and 2 contend that the trial judge erred in finding that Dr Cunningham and Ms Atoms were credible and reliable witnesses;
2.Grounds 6, 10 and 13 contend that the trial judge erred in making adverse credit findings against the police defendants;
3.Grounds 3, 4, 7 - 9, 11 - 12 and 14 - 16 challenge a large number of findings of primary fact which the trial judge made, and her Honour's conclusions as to liability which followed from the factual findings said to involve error;
4.Ground 5 contends that the trial judge erred in fact in failing to make 14 specified factual findings;
5.Grounds 17 - 18 allege that the trial judge erred in finding that Officer Clark's battery of Ms Atoms and Mr Caldwell's tasering of Ms Atoms caused her back injury, and in finding that Officer Clark's battery was a cause of Ms Atom's mental conditions;
6.Ground 19 contends that the trial judge erred in finding that Ms Atoms had established loss and damage in the sum of $174,665 for future medical expenses, $334,520.11 for past economic loss and $336,658.50 for future economic loss;
7.Grounds 20 and 21 contend that there was no basis for awarding aggravated or exemplary damages; and
8.Grounds 22 - 24 contend that the trial judge erred in entering judgment in the relevant amounts against each of the police defendants and in failing to apportion liability between the defendants.
All of grounds 1 - 19 in substance assert a large number of factual errors. The success of all of those grounds depends, at least mostly, on establishing a series of errors by the trial judge in finding the primary facts.
The police defendants have also cross-appealed in CACV 11 of 2017. In the cross-appeal the police defendants have filed a document[6] which contains 3 grounds of cross-appeal which reflect grounds 22 - 24 in this appeal.
[6] Which does not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules).
The application for security for costs
By application in an appeal filed on 4 May 2017, the plaintiffs apply for an order that the police defendants provide security for the costs of the appeal in the amount of $150,000. The plaintiffs rely on the affidavit of Phillip Gleeson sworn on 3 May 2017 in support of that application. The police defendants rely on their own affidavits sworn on 18 May 2017 in opposition to the application.
General principles
Murphy JA considered the principles relating to applications for security for costs in an appeal in George 218 Pty Ltd v Bank of Queensland Ltd.[7] In summary, as his Honour recognised:
1.The power to order security is exercised to serve the interests of justice.
2.The discretion to order security is unfettered but must be exercised judicially.C:\Users\flemingw\APPDATA\LOCAL\TEMP\wzee03\Traynor v Cunningham rev 5 AM.doc - bookmark8 'Special circumstances' do not have to be shown before an order for security for costs is made against an appellant.
3.An appellant's inability to satisfy a costs order should the appeal fail is generally a significant factor in favour of an order for security for costs. However, if the respondent has caused the appellant's impecuniosity, that may be a relevant countervailing factor.
4.Impecuniosity is not in itself generally the sole ground for the making of an order for security. Even where the appellant is impecunious, in all the circumstances the interests of justice may properly be served by not making such an order.
5.Other factors generally include the appellant's prospects of success, whether the appellant would be shut out of the appeal if security for costs were ordered, and whether there has been any delay in the respondent filing the application for security for costs.
6.Ultimately, each case will turn on its own circumstances, and it is not possible to set out an exhaustive list of the relevant considerations.
7.Where security is ordered against an impecunious appellant, the amount ordered should not be greater than is absolutely necessary.
[7] George 218 Pty Ltd v Bank of Queensland Ltd [2016] WASCA 56 [41] - [48].
The police defendants' ability to satisfy a costs order
It was common ground between the parties that the police defendants are impecunious and will not be in a position to satisfy the costs order in favour of the plaintiffs which would be expected if this appeal is wholly or substantially unsuccessful.
I note that there was an issue as to the admissibility of correspondence sent by the police defendants' solicitor under the heading 'without prejudice', and which was annexed to the police defendants' affidavits. The only purpose of the police defendants' reference to that letter was to incorporate by reference statements about their financial position. I will receive that aspect of the evidence for that limited purpose, which in my view does not infringe the without prejudice rule.
Officer Traynor is the registered proprietor of a property in Baldivis in which he estimates there to be $45,000 equity. His wages have been suspended as he is on continued sick leave. He has less than $1,000 in savings. He owns a vehicle which he estimates to be worth slightly less than the outstanding balance of a loan used to purchase the vehicle. Save for household effects, he has no other assets.
Officer Clark and his partner are registered proprietors of a property in Baldivis in which he estimates there to be $10,000 equity. He is also the registered proprietor of a unit in Baldivis in which he claims negative equity. He earns $67,600 per annum, has $1,000 in savings and, apart from household effects, no other assets.
Mr Caldwell does not own any real property, and has $1,700 in savings. He receives a Newstart allowance of $8,039.76 per annum and a disability pension of $12,156 per annum. His only assets are household effects.
There is no evidence suggesting that the plaintiffs have caused the police defendants' impecuniosity.
Whether an order for security would stultify the appeal
The evidence referred to above also leads to the inference that the police defendants themselves do not have sufficient assets to raise a substantial amount of security for costs. However, in the circumstances of this case that does not compel the conclusion that an order for security for costs would shut the police defendants out of the appeal.
The police defendants have each deposed in the following terms:
The WA Police Union has agreed to pay my legal costs in this appeal and CACV 11 of 2017. The WA Police Union has not agreed to pay the costs of the other parties to the appeal in the event that I am unsuccessful in this appeal and [CACV 11 of 2017].
This paragraph of the police defendants' affidavits seems rather strategic in its lack of detail. The paragraph does not say that the union has refused to pay the costs of the other parties in the event that the police defendants are unsuccessful, or even that the union has been asked to do so. There is no evidence as to the union's attitude towards assisting the police defendants to provide security for costs in the event that an order for security for costs is made in this appeal.
The plaintiffs submit that the police defendants bear an evidentiary onus to show that they would be shut out of their appeal if security were ordered. The cases cited by the plaintiffs can be seen as applications of that more general principle, in circumstances where a company or trustee sues. Those cases hold that the onus lies on the litigant who has instituted proceedings and resists giving security on the grounds that to do so will effectively stultify the action to establish that those who stand behind it, and will benefit from the litigation if it is successful, are also without means.[8] That particular application of the general rule does not directly arise in this appeal, where the evidence does not establish that the union will benefit from the police defendants' appeal if it is successful.
[8] BPM Pty Ltd v HPM Pty Ltd (1996) 131 FLR 339, 345.
The plaintiffs also submit that a proceeding cannot be regarded as stultified unless those who stand behind the impecunious plaintiff/appellant are unable (not merely unwilling) to provide the requisite security for costs. The authority cited for that proposition appears to be from a statement of a primary judge under the Uniform Civil Procedure Rules in an action by a liquidator, which first instance decision was overturned on appeal.[9] The principle advanced by the plaintiffs may be accepted as a general statement in the case of a corporate or trustee litigant. In such a case, there are persons standing behind the litigant who stand to benefit from the litigation. Different considerations arise in the case of an individual who merely receives assistance from a third party when the individual undertakes litigation for his or her own benefit. In such a case, the demonstrated ability of the third party to provide further assistance, in circumstances where the third party is unwilling to do so, will not preclude a conclusion that an order for security will stultify the litigation.
[9] See Green v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105 [7] (in particular par 8 of this passage, which is quoted by the plaintiffs), [45] - [46].
In the present case, the difficulty for the police defendants is not merely the capacity of the union to provide additional funding (which may readily be inferred). The difficulty for the police defendants is that there is no evidence that the union would be unwilling to exercise that capacity in the event that security were to be ordered. The police defendants, who as members of the union are in the best position to do so, have not adduced evidence to that effect. As such, the evidence does not establish that the police defendants will be shut out of the appeal if they are ordered to provide security for costs. The most the evidence establishes is that they may be shut out of the appeal if the union is not willing to assist them to provide security for costs, in circumstances where the attitude of the union is unknown.
Prospects of success in the appeal
As I have noted above, the bulk of the police defendants' grounds of appeal at least mostly depend on challenging a large number of findings of primary fact. The difficulty in challenging findings of primary fact on appeal is well recognised. As the High Court recently observed in Robinson Helicopter Co Inc v McDermott:[10]
A court of appeal conducting an appeal by way of rehearing is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or they are 'glaringly improbable' or 'contrary to compelling inferences'. (citations omitted).
[10] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43].
That difficulty is compounded for the police defendants by the number of findings of primary fact which are challenged, and the circumstance that many of those findings were made by reference to a careful consideration of the CCTV footage and by preferring the plaintiffs' evidence to that of the defendants.
I have reviewed the trial judge's reasons for finding the relevant facts, the Appellant's Case and the CCTV footage. My provisional assessment is that it is unlikely that the grounds which challenge findings of primary fact made by the trial judge will succeed. While the grounds (1 - 19) may not be unarguable, the arguments advanced in support of them are far from strong. Unless the findings of fact are successfully challenged, the grounds attacking the award of aggravated and exemplary damages will also be very difficult to sustain.
Grounds 22 - 24, which challenge the apportionment of damages as between the defendants, stand on a different footing. Those grounds do seem to me to have reasonable prospects of success. However, if the police defendants succeed only on those grounds, they are unlikely to avoid an award of costs in favour of the plaintiffs. The plaintiffs are unlikely to be concerned with a reduction in the amount of their assessed damages which the impecunious police defendants, as opposed to the State, are required to pay.
Plaintiffs' burden of responding to the appeal
A comprehensive response to the police defendants' grounds will require the plaintiffs to devote an unusually high level of legal resources. That is so notwithstanding my provisional assessment that the grounds which challenge, or depend upon the success of challenges to, the trial judge's factual findings are far from strong. That is in part a result of the unusually large number of grounds and sub-grounds of appeal which the police defendants advance. Further, responding to the grounds attacking factual findings will require a careful review of the evidence in a trial which ran for 18 days and occupies almost 2,000 pages of transcript. The plaintiffs' submissions will also need to consider 95 exhibits and 241 pages of reasons. The unusually burdensome requirements which arise from the police defendants' choices as to their grounds for attacking the trial judge's decision is a factor which counts in favour of requiring the provision of security for costs.
The police defendants are, of course, entitled to choose their grounds of challenge to the trial judge's decision. However, they are not entitled to require the plaintiffs to bear the whole of the financial risk associated with those choices. The police defendants may perceive themselves as having little to lose by adopting the strategy of making broad-ranging challenges to findings of fact. If their appeal fails, a costs order in the appeal will just be another liability which the police defendants cannot afford to discharge, as their liability for damages and trial costs already exceed the police defendants' assets. If the appeal is substantially successful then the police defendants' costs of running the grounds challenging primary findings of fact will be met by their union. It seems to me unlikely that the police defendants, if they were properly advised, would choose or have the capacity to run these grounds if they were paying for the exercise themselves.
In balancing where the interests of justice lie, it is also important to bear in mind that the plaintiffs are individuals whose legal resources do not match those of the State and the union-backed police defendants against whom they have asserted their rights. Murphy JA's reasons in the stay application indicate that the plaintiffs have spent a very large amount on legal assistance at trial. The grant of a stay means that the amount of the judgment sum which the plaintiffs will receive pending resolution of the State's appeal is only a small proportion of their trial costs.
There is a further aspect of the manner in which the police defendants have conducted this appeal which counts towards the award of security for costs. The police defendants did not file their Appellant's Case in the time required by the Rules, and their delay in doing so has unnecessarily increased the financial burden imposed on the plaintiffs in responding to the appeal.
The police defendants' notice of appeal was filed on 27 January 2017. Rule 32 of the Rules required an Appellant's Case to be filed within 35 days after the filing of the appeal notice. As such, the Appellant's Case should have been filed by 3 March 2017.
On 20 March 2017, Newnes JA made an order extending the time for filing an Appellant's Case to 24 March 2017. On 4 April 2017, the time was further extended to 21 April 2017.
No Appellant's Case was filed and, on 3 May 2017, the police defendants applied for a further extension of time to file an Appellant's Case to 19 May 2017. On 4 May 2017, the plaintiffs applied for the appeal to be dismissed or, in the alternative, a springing order providing for the appeal to be dismissed if an Appellant's Case is not filed within 7 days.
On 4 May 2017, orders were made programming these applications for hearing, and a hearing of the applications was listed for 8 June 2017. Surprisingly, despite the passage of more than a month after programming orders were made, no Appellant's Case was filed prior to the commencement of the hearing on 8 June 2017. An unsigned draft was provided to the court and the plaintiffs only shortly before the hearing, with an indication that a signed version in that form would be filed that day if a further extension of time were granted. The extension was granted and the Appellant's Case filed. The outcome of this is that the plaintiffs have had to unnecessarily expend a not-insignificant amount on securing compliance with the Rules, in the form of the filing of an Appellant's Case, by the police defendants.
The role of, and prospects of a costs order against, the union
Submissions of the parties addressed the role of the union, and the prospect that the plaintiffs may seek a costs order against the union at the conclusion of the appeal if it is unsuccessful.
The plaintiffs invite me to infer that that union is in fact the driving force behind the appeal. The basis for that inference is a media report of a statement by the president of the union, on 9 December 2016, that:[11]
the union would assess Judge Davis' reasons when they are published on December 15 as well as consider the merits of an appeal. He added the union would continue to support the officers involved.
[11] Annexure PAG 21 to Mr Gleeson's affidavit.
I am not prepared to draw that inference from the material currently before me. Although hearsay statements are admissible in interlocutory proceedings, I am not prepared to attribute any significant weight to an unverified media report of a statement made by a person who is not a party to the proceedings. In any event, the reported statement is not necessarily inconsistent with the union wanting to see and consider the trial judge's reasons before deciding whether to provide funding if the police defendants chose to institute an appeal. I am not satisfied that the union has done more than provide assistance, in the form of funding for legal proceedings, to its members.
Both the plaintiffs and the police defendants referred to cases dealing with the award of costs against non-parties, and to the prospect that if the appeal failed the plaintiffs may seek an award of costs against the union. I did not understand either party to ultimately contend that the prospect of a costs order being made against the police union was a reason for me to decline to make an order for security for costs. I agree with that position.
In Knight v FP Special Assets Ltd,[12] Mason CJ and Deane J observed:
For our part, we consider it appropriate to recognize a general category of case in which an order for costs should be made against a non-party and which would encompass the case of a receiver of a company who is not a party to the litigation. That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made.
[12] Knight v FP Special Assets Ltd (1992) 174 CLR 178, 192 - 193. To similar effect see Dawson J at 202.
The present case does not, on the material before me, fall within the general category of case to which Mason CJ and Deane J referred in Knight. It has not been demonstrated that the union has played any active part in the conduct of this appeal, beyond providing funding to the police defendants to fund their legal costs. Nor has it been shown that the union has any relevant interest in the subject matter of the litigation, for example by having an entitlement to, or an expectation of receiving, a share in proceeds of the litigation.
That is not to determine that an application for costs against the union would have no prospects of success if the police defendants were unsuccessful in the appeal. As the Full Court of the Federal Court noted in Gore v Justice Corporation Pty Ltd,[13] there is no reason to suppose that Knight closed the door to categories of third parties who may be liable for costs of litigation nor that the circumstances identified in Knight were exhaustive. In Murphy v Young & Co's Brewery,[14] Phillips LJ used an example involving a trade union funding litigation by its members as one category of exceptional case where a costs order against a third party may be justified. However, in my view, the prospect of a costs order being made against the union if this appeal is unsuccessful is largely speculative at this stage, and is not such as to make an order for security for costs redundant.
[13] Gore v Justice Corporation Pty Ltd [2002] FCAFC 83; (2002) 119 FCR 429 [23].
[14] Murphy v Young & Co's Brewery [1997] 1 WLR 1591, 1601 - 1602; [1997] 1 All ER 518, 528 - 529, cited in Gore [36] - [37].
Significance of primary proceedings against impecunious defendants
The police defendants rely on the following statement by McLure JA in Mann v Dabelstein,[15] in a context where the respondents to the appeal had instituted a defamation action against impecunious appellants:
It is clear … that the appellant does not have the financial capacity or access to funds to enable him to provide the security sought by the respondents or indeed any security for costs. Thus the order would frustrate a genuine appeal that has reasonable prospects of success. I note the appellant has failed to satisfy outstanding costs orders made in the respondents' favour. However, that is a consequence of the respondents commencing proceedings against an impecunious party. The clear balance of relevant factors requires the Court to refuse to order security for costs. [17]
[15] Mann v Dabelstein [2006] WASCA 176.
Generally an appeal is seen as a separate proceeding from the original action in which the orders appealed against were made.[16] The institution of an appeal involves a decision by the appellant to commence proceedings against the respondent. Notwithstanding the separate nature of the proceedings, I agree with McLure JA that the fact that the appeal is against a decision in primary proceedings which the respondent chose to institute against an impecunious appellant is a factor counting against an order for security for the costs of an appeal. The courts should be cautious about depriving an impecunious party who has not instituted the primary proceedings of the capacity to challenge an adverse decision in the primary proceedings by way of a genuine appeal that has reasonable prospects of success.
[16] See Director, Office of the Fair Work Building Industry Inspectorate v CFMEU (No 2) [2013] FCAFC 34 [13]; Amaca Pty Ltd v Novek [2009] NSWCA 50 [106]; CMA Recycling Victoria Pty Ltd v Doubt Free Investments Pty Ltd (No 2) [2013] TASFC 10 [20]; Attorney General v Michael [1999] WASCA 181 [124].
The provisions of s 137 of the Police Act 1982 (WA) practically compelled the plaintiffs to bring their primary action against both the State and the police defendants. Which would be liable would depend on the court's finding as to malice. That would be difficult to predict when the action was commenced. Further, exercise of the capacity to request payment of damages and costs against a police officer who acted with malice, under s 138 of the Police Act, depends on proceedings having been taken against the police officer concerned. Notwithstanding that fact, however, the circumstance that the police defendants did not institute the primary proceedings is a consideration counting against ordering security for costs to the extent that their grounds have reasonable prospects of success.
Timing of the plaintiffs' application
There can be no question that the plaintiffs acted promptly in applying for security for costs. It was suggested in correspondence between the parties that it was premature to make the application before the Appellant's Case was filed. The plaintiffs waited for a reasonable time to allow this to occur, and then applied for security for costs when they became frustrated at the failure of the police defendants to file an Appellant's Case.
Significance of the State's appeal
The police defendants point to the fact that the plaintiffs will be required to incur the costs of defending the State's appeal in any event. I do not regard that as a significant factor against ordering security for costs in this appeal. The issues raised in the State's appeal are discrete, and the State's appeal does not involve any significant challenge to findings of primary fact made by the trial judge. The police defendants' decision to pursue this appeal will impose a substantial additional burden on the plaintiffs, in addition to that associated with defending the State's appeal which essentially turns on disputed legal issues.
The police defendants have cross-appealed in CACV 11 of 2017. It is unclear why the police defendants thought it necessary to both appeal and cross-appeal. The police defendants have also anticipated an application to amend their existing three grounds of cross-appeal in CACV 11 of 2017 to incorporate all of the grounds in this appeal. If the police defendants were to amend their grounds of appeal in CACV 11 of 2017 in that manner then the amendment would provide a basis for the plaintiffs to apply for security for costs of the cross-appeal. The fact that the appellants seek to replicate their grounds of the present appeal in CACV 11 of 2017 does not provide grounds for refusing to order security for costs in the present appeal.
Disposition of the application
Balancing all of the above considerations, in my view it is in the interests of justice to require the police defendants to give security for the plaintiffs' costs of this appeal. The most significant factors leading me to that conclusion are:
1.the weakness in grounds of appeal challenging, or depending upon the success of challenges to, the trial judge's findings of primary fact;
2.the unusual burden which the number and nature of the appeal grounds impose on the plaintiffs in responding to the appeal; and
3.the failure of the police defendants to establish that an order for security will shut them out of the appeal.
Further, the orders which I propose to make will not shut the police defendants out of pursuing their existing three grounds in the cross‑appeal, even if the union is not willing to fund the provision of security in this appeal. Those orders will provide for the present appeal to be dismissed if, by a specified date, security is not provided and the appeal is not discontinued. If the police defendants are unable to raise security then they will still have the option of discontinuing this appeal so that their capacity to cross-appeal is not compromised by an order dismissing this appeal. If the police defendants do not amend the existing grounds of cross-appeal in CACV 11 of 2017, many of the factors which have tipped the balance in favour of an award of security in this appeal would be absent in CACV 11 of 2017. In that event, even if the police defendants were ultimately unable to raise security for costs in this appeal, they could still pursue their three stronger grounds in CACV 11 of 2017. That would, of course, be subject to any decision on an application for security for costs in CACV 11 of 2017.
Amount of security
In fixing the amount of security, I bear in mind that security for costs is not an indemnity and that, where security is ordered against an impecunious appellant, the amount ordered should not be greater than is absolutely necessary. Those principles lead me to order security of an amount less than that sought by the plaintiffs.
Despite the considerably longer estimate in the Appellant's Case, in my view the whole of the oral submissions in this appeal should be able to be completed in not more than two days. That would give each side a whole day in which to present oral submissions supplementing their appropriately detailed written submissions. I would not order security above the scale limits but, given the complexity of the response to the appeal required, I will allow for the maximum amount for each item.
I will allow the following amounts in assessing the amount of security which will be required.
| Scale Item | Description | Scale time | Fee earner | Scale amount |
| 23(a) | Notice of Respondent's Intention | $484 | ||
| 23(b) | Respondent's Answer | 40 hours | SC | $27,280 |
| 23(d) | Settling appeal book indexes | 8 hours | SP | $3,872 |
| 23(e) | Application in an appeal | 10 hours | C | $3,960 |
| 23(f) | Preparation for hearing | 10 hours | SP | $4,840 |
| 23(g) | Counsel fee on hearing (including preparation) | 3 days | C | $11,880 |
| 23(h) | Counsel fee on hearing (including preparation) | 3 days | SC | $20,460 |
| 23(i) | Counsel fee for second day of hearing | 1 day | C | $3,960 |
| 23(j) | Counsel fee for second day of hearing | 1 day | SC | $6,820 |
| 23(k) | Instructing solicitor attending appeal over 2 days | 10 hours | SP | $4,840 |
| 23(l) | Attending on reserved decision | 2 hours | SP | $968 |
| TOTAL | $89,364.00 |
I will round this figure up to $90,000.
Orders
For the above reasons, I will order the police defendants to provide security for costs in the sum of $90,000 on or before a specified date. Subject to hearing from counsel as to the form of security, security should be by way of payment of $90,000 into court unless the parties can agree on arrangements for it to be paid into an interest bearing account.
If the sum of $90,000 is not paid by the appellants either into the court or into an agreed account by the specified date, and a notice of discontinuance of the appeal has not been filed by that date, then the appeal will stand dismissed and the police defendants will have to pay the plaintiffs' costs of the appeal to be taxed. Pending payment of security, the appeal should be stayed.
I will hear from the parties as to the form of security, the time by which security must be provided, the costs of the applications in an appeal heard on 8 June 2017 and any ancillary matters.
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