Traynor v Cunningham [No 2] - [2017] WASCA 159

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TRAYNOR -v- CUNNINGHAM [No 2] [2017] WASCA 159

CORAM: MURPHY JA
BEECH JA

HEARD: 18 AUGUST 2017

DELIVERED : 23 AUGUST 2017

FILE NO/S: CACV 10 of 2017

BETWEEN: SIMON TRAYNOR
First Appellant
PETER JAMES CLARK
Second Appellant
GLENN ALEXANDER CALDWELL
Third Appellant
AND
ROBERT LEE CUNNINGHAM
First Respondent
CATHERINE MARY ATOMS
Second Respondent
THE 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 - Security for costs on appeal - Turns on own facts

Legislation:

Nil

Result:

Application for review dismissed

Category: B

Representation:

Counsel:

First Appellant               :     Ms K A Vernon
Second Appellant          :     Ms K A Vernon
Third Appellant             :     Ms K A Vernon
First Respondent           :     Mr M D Cuerden SC & Mr T J Porter
Second Respondent      :     Mr M D Cuerden SC & 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):

Cunningham v Traynor [2016] WADC 168
Dodds v Kennedy [2011] WASCA 32
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
George 218 Pty Ltd v Bank of Queensland [2016] WASCA 56
House v The King [1936] HCA 40; (1936) 55 CLR 499
Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1
Mace v Murray [1955] HCA 2; (1955) 92 CLR 370
Richardson v Leonard Cohen & Co (A Firm) [No 2] [2008] WASCA 101
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
The State of Western Australia v Cunningham [2017] WASCA 119
Traynor v Cunningham [2017] WASCA 125
REASONS OF THE COURT:

Introduction

This is an application by the appellants for a review of a single justice of appeal's decision delivered on 13 July 2017 in Traynor v Cunningham[1] (security for costs decision). That decision involved an application in an appeal by the first and second respondents (Dr Cunningham and Ms Atoms respectively) for an order for security for costs against the appellants. Justice Mitchell upheld the application, and ordered that the appellants pay security for costs in the sum of $90,000.
[1] Traynor v Cunningham [2017] WASCA 125.
The substantive appeal in this matter is against the decision of Davis DCJ in Cunningham v Traynor[2] (primary decision) in which her Honour found that the appellants (who were at the time members of the police force of Western Australia), and the State of Western Australia, were liable in tort to Dr Cunningham and Ms Atoms.
[2] Cunningham v Traynor [2016] WADC 168.
In the security for costs decision, Mitchell JA referred to the individual appellants as Officer Traynor, Officer Clarke and Mr Caldwell, and, where the context made it appropriate, referred to the appellants collectively as the 'police defendants'. These reasons will also adopt that nomenclature.
For the reasons that follow, we would dismiss the review application. In short, we agree with Mitchell JA that an order for security for costs should be made.

Background[3]

[3] The relevant background is uncontroversial and has been taken from the security for costs decision [2] ‑ [4], [7] ‑ [9].

In the primary proceedings, Dr Cunningham and Ms Atoms 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.
Dr Cunningham and Ms Atoms succeeded in causes of action 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, in CACV 11 of 2017, by the State against the primary decision, and a cross-appeal by the appellants in that matter.
The trial judge's findings of primary fact, her Honour's findings as to the basis of the various defendants' liability and the grounds on which the State appeals were 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.[4]
[4] The State of Western Australia v Cunningham [2017] WASCA 119 [6] ‑ [66].
The trial judge's findings of the primary facts were based largely on her preference of the evidence of Dr Cunningham and Ms Atoms 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,[5] as well as an audio-video recording at the police station.[6] The trial judge gave detailed reasons for finding Dr Cunningham and Ms Atoms to be credible,[7] and for finding the police defendants to be lacking in credibility.[8] The trial judge gave considered reasons for each of the contentious factual findings which she made.
[5] Primary decision [150] ‑ [241].
[6] Primary decision [242] - [280].
[7] Primary decision [284] - [308].
[8] Primary decision [309] - [368].
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[9]

[9] See security for costs decision [10] - [12].

The appellants' case contains 24 grounds of appeal, all of which have a number of sub-points. In broad terms, as the judge explained, the grounds of appeal are to the following effect:
1.Grounds 1 and 2 allege that the trial judge erred in law in finding that Dr Cunningham and Ms Atoms were credible and reliable witnesses.
2.Grounds 3, 4, 7 ‑ 9, 11 ‑ 12 and 14 ‑ 16 challenge various findings of fact made by the trial judge and her Honour's conclusions as to liability following those findings.
3.Ground 5 alleges that the trial judge erred in fact in failing to make a number of specified findings.
4.Grounds 6, 10 and 13 allege that the trial judge erred in making adverse findings as to the credibility of Officer Traynor, Officer Clark and Mr Caldwell.
5.Grounds 17 ‑ 18 allege that the trial judge erred in finding that Officer Clark's battery and Mr Caldwell's tasering of Ms Atoms caused Ms Atom's back injury, and in finding that Officer Clark's battery was a cause of her mental conditions.
6.Ground 19 alleges that the trial judge erred in finding that Ms Atoms had established loss and damages 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 allege that there was no basis for the trial judge to award aggravated or exemplary damages.
8.Grounds 22 - 24 allege that if the appellants' appeal against liability through the preceding grounds fails, the trial judge erred in entering judgment in the relevant amounts and in apportioning liability as her Honour did.
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. At the time of the security for costs decision in the cross-appeal, the police defendants had filed a document[10] which contained three grounds of cross‑appeal which reflect grounds 22 ‑ 24 in this appeal.[11]
[10] Which did not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules).
[11] Since then, further documents have been filed but, by orders made on 18 August 2017, those documents will be uplifted by the appellants and an application for leave to amend the cross‑appeal will be filed.

The security for costs decision

The judge applied the principles stated in George 218 Pty Ltd v Bank of Queensland.[12] There is no challenge to that statement of principles.
[12] George 218 Pty Ltd v Bank of Queensland [2016] WASCA 56 [41] - [48].
In concluding that the appellants should provide security for costs, the judge had regard to the following considerations.[13]
[13] Security for costs decision [52].
First, he found, as was common ground, that the appellants were impecunious and would not be able to satisfy any costs order in favour of the respondents.[14]
[14] Security for costs decision [15].
Secondly, he addressed the question of whether an order for security would stultify the appeal. In this regard, he noted that, while the evidence showed that the appellants do not themselves have sufficient assets to raise a substantial amount of security for costs, they each deposed as follows:[15]
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].
[15] Security for costs decision [21] ‑ [22].
The judge said:[16]
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.
[16] Security for costs decision [23].
The judge concluded that the most the evidence established was that the appellants may be shut out of the appeal only if the union is unwilling to assist them to provide security, and no evidence was provided to show that the union would be unwilling to assist them in that respect. The evidence accordingly did not establish that the appellants would be shut out of the appeal if they were ordered to provide security for costs.[17] These conclusions are challenged on appeal by ground 3.
[17] Security for costs decision [26], [52.3].
Thirdly, the judge addressed the prospects of success in the appeal. In doing so, he noted that the bulk of the grounds of appeal largely depend on challenging a number of findings of primary fact, many of which were made by reference to a consideration of CCTV footage and a preference of Dr Cunningham's and Ms Atoms' evidence over the appellants' evidence.[18]
[18] Security for costs decision [27].
On his provisional assessment, having regard to the relevant findings of fact, the appellants' case and the CCTV footage, the judge said that it was unlikely that the grounds of appeal that challenge the findings of fact made by the trial judge would succeed. He said, with respect to grounds 1 ‑ 19, that the arguments advanced in support of them were 'far from strong'. Further, unless the findings of fact were successfully challenged, the grounds attacking the award of aggravated and exemplary damages would also be difficult to sustain.[19]
[19] Security for costs decision [29].
Ground 1 challenges these findings.
In relation to grounds 22 ‑ 24, which challenge the apportionment of damages as between the defendants, the judge said that they seem to have reasonable prospects of success. However, he said that if the appellants were only to succeed on those grounds, they would be unlikely to avoid an award of costs in favour of Dr Cunningham and Ms Atoms, and Dr Cunningham and Ms Atoms are unlikely to be concerned with a reduction in the amount of their assessed damages which the impecunious appellants, as opposed to the State, are required to pay.[20]
[20] Security for costs decision [30].
Fourthly, the judge found, in effect, that the unusually large number of grounds of appeal and sub-points, together with the nature of those grounds in attacking factual findings, placed an unusually high burden on Dr Cunningham and Ms Atoms in responding to the appeal.[21] Mitchell JA had regard to the fact that the trial ran for 18 days, there was almost 2,000 pages of transcript, there were 95 exhibits, and the reasons for judgment were 241 pages in length. Ground 2 challenges this aspect of his Honour's reasoning.
[21] Security for costs decision [31] - [32].
Fifthly, his Honour observed:[22]
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.
[22] Security for costs decision [32].
Sixthly, his Honour referred to other discretionary considerations to the effect that Dr Cunningham and Ms Atoms are individuals without the resources of the State or union-backed appellants,[23] and that the appellants filed the appellants' case late and in doing so already unnecessarily increased the financial burden of the appeal on Dr Cunningham and Ms Atoms.[24]
[23] Security for costs decision [33].
[24] Security for costs decision [34] ‑ [38].
Seventhly, his Honour considered the prospect of a costs order being made against the police union if the appeal were unsuccessful. He said that the prospect of a costs order being made against the union if the appeal is unsuccessful is largely speculative at this stage, and is not such as to make an order for security for costs redundant.[25]
[25] Security for costs decision [45].
Eighthly, his Honour said that the circumstance that the appellants did not institute the primary proceedings was a consideration counting against ordering security for costs to the extent that their grounds of appeal have reasonable prospects of success.[26]
[26] Security for costs decision [48].
Ninthly, his Honour said that Dr Cunningham and Ms Atoms acted promptly in applying for security for costs, and that they waited a reasonable time for the appellants' case to be filed before making the security for costs application.[27]
[27] Security for costs decision [49].
Tenthly, his Honour did not regard the fact that Dr Cunningham and Ms Atoms would be required to incur the costs of defending the State's appeal in CACV 11 of 2017 as a significant factor against ordering security for costs in this appeal. He said, in this respect, that the issues raised in CACV 11 of 2017 are discrete and do not involve any significant challenge to findings of primary fact. By comparison, the decision of the appellants to pursue these appeal proceedings (ie, CACV 10 of 2017) would impose a substantial additional burden on Dr Cunningham and Ms Atoms.[28]
[28] Security for costs decision [50].
Eleventhly, the judge noted that the appellants anticipated an application to amend their existing three grounds of cross-appeal in CACV 11 of 2017 to incorporate all of their grounds of appeal in this appeal. He said that such an amendment would provide a basis for Dr Cunningham and Ms Atoms to apply for security for costs of the cross‑appeal, but did not provide grounds for refusing to order security for costs in the present appeal.[29]
[29] Security for costs decision [51].
Twelfthly, with respect to his orders, the judge observed that they do not shut the appellants out of pursuing their existing three grounds in their cross‑appeal in CACV 11 of 2017, even if the union is not willing to fund the provision of security in this appeal.[30]
[30] Security for costs decision [53].
His Honour concluded:[31]
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.
[31] Security for costs decision [52].

Review application: appellants' submissions

The appellants' application for review raised three grounds in support of the review application in their submissions dated 31 July 2017.
At the hearing on 18 August 2017, the appellants applied to amend the grounds of the application. In effect the amended grounds refined existing grounds 1 ‑ 3 and sought to add a new ground 4. There was no opposition to the amendment of grounds 1 ‑ 3 and we would allow the proposed amendments in those respects.
Proposed ground 4 is that:
The court ought to conclude that the further affidavit evidence sworn 17 August 2017 establishes that the order for security for costs would stultify the appeal, and the order should be set aside in the 'interests of justice'.
We would refuse leave to amend to add proposed ground 4. As counsel for the appellants accepted, whether error in a discretionary decision is demonstrated must be assessed by reference to the evidentiary material before the primary court. Error is not shown by adducing additional evidence that fills an evidentiary gap that existed at the time the discretion was exercised. Moreover, in oral submissions in support of the application to adduce the affidavit of 17 August 2017, to which we refer further later in these reasons, counsel for the appellants accepted that the affidavit was relied upon as relevant to any re‑exercise of discretion if a ground of appeal succeeds, not as relevant to whether a ground succeeds. In any event, as we explain below, we determine this appeal by re‑exercising the security for costs discretion on the assumption, favourable to the appellants, of the factual conclusion sought to be established by the affidavit of 17 August 2017. Thus, if we had granted leave to include ground 4 we would dismiss the ground.

The first ground alleges, in effect, that in assessing the prospects of success of the appeal as unlikely to succeed, the judge had regard to evidence in the primary proceedings which was not contained in the affidavit material put before him by the parties in relation to the security for costs application. Specifically, his Honour had regard to the CCTV footage, although he did not read the transcript nor have regard to any of the other exhibits tendered.[32] The ground further contends that the judge ought to have found the prospects of success were a neutral factor in deciding whether to order security for costs. The appellants submit that the judge was obliged to inform the parties of the evidence that he was going to consider and which was not contained in the affidavit material, and to permit the parties to make submissions in relation to it. They say that the security for costs application should not have been determined on the basis of evidence from the trial which the parties did not know the judge would consider, and that this irregularity warrants the setting side of the orders.[33]
[32] Appellants' submissions, pars 5, 9.
[33] Appellants' submissions, pars 10, 11.
The second ground alleges, in effect, that the judge erred in considering the number and nature of the appellants' grounds of appeal as a factor in favour of requiring security for costs. The appellants submit that the discretion to award security must be based on the assessment of an aspect of the appeal which can be objectively assessed and which the court can reasonably test, and that this does not apply to the number and length of the grounds of appeal.[34]
[34] Appellants' submissions, pars 12 ‑ 16.
The third ground challenges the judge's approach in finding that, in the absence of evidence that the Police Union would be unwilling to provide security for costs, the appellants had not demonstrated that they would be shut out from the appeal. In this regard, the appellants submit that it is not incumbent on an appellant who might objectively be unable to pay the costs of an appeal to inquire of every organisation which might be willing to assist, and to then further inquire as to whether that assistance would extend to security for costs. They also contend, in this respect, that the Police Union could never benefit from the appeal.[35]
[35] Appellants' submissions, pars 20 ‑ 22.

Disposition

The review application is a rehearing, not a hearing de novo, and error on the part of the single judge of appeal must be shown.[36] In the case of a discretionary decision, as is the case for security for costs, error of the kind explained in House v The King[37] must be shown.[38] Special restraint must be exercised when the impugned interlocutory order is one concerning practice and procedure.[39]
[36] Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1 [21]; Richardson v Leonard Cohen & Co (A Firm) [No 2] [2008] WASCA 101 [3].
[37] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.
[38] Mace v Murray [1955] HCA 2; (1955) 92 CLR 370, 378; Richards v Leonard Cohen [3], [28].
[39] Dodds v Kennedy [2011] WASCA 32 [5] and the cases there cited.
It is convenient to address the grounds in reverse order.
There is no merit in ground 3. The judge recognised that the Police Union would not benefit from the litigation.[40] Consequently, his Honour distinguished the present case from cases involving a corporate or trustee litigant. In cases of the latter kind, the proceeding cannot be regarded as stultified unless those standing behind the litigant are unable, not merely unwilling, to provide the security. By contrast, his Honour found, when the litigation is pursued for the litigant's own benefit, the demonstrated ability of a third party to provide funding, 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.[41] The judge found, however, that:
(1)There was no evidence that the Police Union would be unwilling to provide security if it were ordered.
(2)Consequently, the appellants had not established that the appeal would be stultified by an order for security for costs.[42]
[40] Security for costs decision [25] - [26].
[41] Security for costs decision [25].
[42] Security for costs decision [26].
Those findings were plainly open. As the evidence of the appellants themselves established, the appellants were being funded by the Police Union in respect of their costs of the appeal. Contrary to the appellants' submissions, that fact made the willingness of the Police Union to provide security directly relevant to whether an order for security would stultify the appeal. That is because the inference is open that a third party who is willing to fund a party's costs may also be willing to fund the provision of security necessary for the appeal to proceed. It is not a matter of it being 'incumbent' on the appellants to inquire of the Police Union whether it would provide security for the purposes of the appeal. It is simply that in the absence of evidence as to whether any inquiry had been made, and in the absence of any evidence as to any response to any such inquiry, the conclusion could not be reached in the circumstances of this case that an order for security would stultify the appeal.
In any event, even if we were wrong in rejecting ground 3, as appears below, when we re‑exercise the discretion on the assumption that the Police Union will not provide security for costs, we would grant an order for security in the terms ordered by the judge.
The second ground has no merit. A wide‑ranging appeal involving challenges to multiple findings of fact will place a significant cost burden on the respondents in responding to the appeal. His Honour was entitled to have regard to the burdensome nature of the appeal. The decision had to be exercised in the interests of justice and it is open to the court, in determining whether justice is served by an order for security, to take into account the scope and nature of the appeal. That is not to say that a respondent in a narrowly‑confined appeal will not be entitled to security merely because the costs of the appeal may be relatively limited. The general principle is that a successful party should be able to recover its costs. It is to say, however, that the court may take into account, in an overall assessment of the justice of the case, the quantum of costs for which the successful respondent will be left out of pocket if the appeal fails.
It is not necessary to determine ground 1 because, as explained below, we would not re‑exercise the discretion any differently.
The appellants applied to adduce additional evidence in the appeal namely affidavits of Arthur Metaxas, the appellants' solicitor, and of Michael Craig Kelly, a Director of the Police Union, both sworn on 17 August 2017, and a letter dated 18 August 2017 from the Police Union to the appellants' solicitors.[43] The respondents object to this material on grounds of lateness. They also object to par 7 of Mr Kelly's affidavit on the basis that it is inadmissible. It is not necessary to determine the application and the objections. The appellants adduce the evidence in order to establish that, following a request made on 20 July 2017 after the security for costs decision, the Police Union has made a decision not to provide the security for costs ordered against the appellants. This review can be determined on the basis of an assumption, favourable to the appellants, to that effect.
[43] The appellants did not press par 5 of Mr Kelly's affidavit.
We accept that, on a provisional assessment, the appeal is arguable, but we were not invited to, and would not, put it any higher than that. Having regard to the significant constraints on appellate intervention in fact‑finding,[44] the appellants assume a difficult task which is not easily discharged. Assuming (without deciding) that the eighth consideration referred to by his Honour was a factor weighing in favour of the appellants, the other considerations referred to by his Honour,[45] together with our observations on prospects above, indicate, in our view, that his Honour was correct to order security for costs in this case.
[44] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43].
[45] That is, the first, fourth to seventh, and ninth to twelfth matters referred to in [16], [24] ‑ [27] and [29] ‑ [32] of these reasons.
We accept, as the appellants emphasise, that the judgment against them is significant in both financial and personal terms. We also accept that, consequently, the prospect that the appellants will be unable to provide the security and thus be unable to proceed with their appeal is a factor that militates against making an order for security. Nevertheless, the matters to which we have referred in the preceding paragraph lead us to exercise our discretion in favour of the grant of security. In summary:
(1)the appellants are impecunious and will not be able to pay the respondents' costs if the appeal fails;
(2)the appeal is arguable, but the appellants must overcome the significant constraints on appellate interference with fact‑finding;
(3)the number and nature of the grounds means that the respondents will incur substantial costs in responding to the appeal;
(4)while the appellants' costs are being met by the Police Union, the respondents are individuals who must meet their costs out of their own resources; and
(5)the respondents acted promptly in applying for security for costs of the appeal.

Conclusion

The appellants' application filed 20 July 2017 should be dismissed.