Woolworths Ltd v Berhane - [2016] QCA 238

[2016] QCA 238

COURT OF APPEAL

PHILIP McMURDO JA

Appeal No 6979 of 2016
DC No 4729 of 2013

WOOLWORTHS LIMITED
ABN 88 000 014 675 Applicant

BERHANE GHEBREIGZIABIHER BERHANE Respondent

BRISBANE

MONDAY, 19 SEPTEMBER 2016

JUDGMENT

PHILIP McMURDO JA: The respondent to this appeal applies for security for the costs of the appeal under r 772 of the Uniform Civil Procedure Rules. The discretion which arises under that rule is a broad one. In Murchie v Big Kart Track Pty Ltd (No 2) [2003] 1 Qd R 528, in the joint judgment of Justices Davies, Jerrard and Wilson, it was said that the Court, under this rule, has:

“…an unfettered discretion whether to order security and, if so, in what amount.”

and that:

“The fact the plaintiff has already had “her day in court” and lost, her impecuniosity, and her prospects of success on appeal –”

were all factors relevant to the exercise of that discretion.

This is an appeal from a judgment in the District Court which dismissed a claim by the appellant for damages for personal injury arising, he alleged, from his employment by the respondent. I was referred by counsel for the appellant, the respondent to the present application, to several authorities in New South Wales, Victoria, South Australia, and Tasmania, which have discussed the question of whether, in what might be called the ordinary case of an impecunious unsuccessful plaintiff appealing a personal injuries judgment, ordinarily security for costs will not be ordered.

In particular, I was referred to the recent judgment of the Victorian Court of Appeal in Trkulja v Dobrijevic & Ors [2015] VSCA 281 and a judgment in the Supreme Court of South Australia in McVicar v S & J White Pty Ltd [2006] SASC 233. I was referred also to a judgment of Hodgson JA in the New South Wales Court of Appeal in Porter v Gordian Runoff Limited& Anor [2004] NSWCA 69 where it was said that:

“In practice, orders are not normally made simply because an appellant is impecunious, because to do so would frustrate many genuine appeals.”

That passage has been cited in New South Wales and in some other jurisdictions in support of the proposition that ordinarily, in a personal injuries case, an appeal by an unsuccessful and impecunious plaintiff will not be the subject of an order for security for costs. However, as counsel for the appellant also properly pointed out, those decisions in other jurisdictions must be considered in the context of the procedural rules which there apply. In particular, in New South Wales and, it would appear, in Victoria, there is a necessity for an applicant for security for costs to show special circumstances. That requirement does not exist under the Queensland r 772.

There is, nevertheless, a persuasive onus which is upon any applicant for security under that rule and impecuniosity, of itself, would not be a determinative consideration. As the Court said in Murchie, the discretion is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Woolworths Ltd v Berhane

Details

AGLC: Woolworths Ltd v Berhane [2016] QCA 238
Case: [2016] QCA 238
Decision Date: 19 SEPTEMBER 2016

CaseChat Overview and Summary

In this appeal, the respondent, Berhane Ghebreigzabiher, has applied for security for the costs of the appeal under r 772 of the Uniform Civil Procedure Rules. The appeal arises from a judgment in the District Court dismissing a claim by the applicant, Woolworths Limited, for damages for personal injury allegedly sustained during the course of the respondent's employment. The legal issues before the court were whether the appeal had reasonable prospects of success and whether ordering security for costs would be appropriate given the respondent's impecuniosity and the potential impact on his ability to pursue the appeal.

The court considered the broad discretion afforded by r 772, noting that impecuniosity alone would not be determinative, and that the prospects of success on appeal were a critical factor. The court found that the appeal had at least an arguable case, given the possibility that the trial judge may have erred in not considering the issue of acceleration of the respondent's pre-existing condition. The respondent's financial circumstances were also taken into account, revealing that he was impecunious and would be unable to fund the security sought if ordered. Despite the substantial amount of security requested, the court determined that the appeal had reasonable prospects of success, and therefore, the application for security should be refused. Additionally, the court ruled that the costs of the application should be the responsibility of each party in the appeal.

Orders