UCPR: Security for costs & impecuniosity

Woolworths Limited v Berhane Ghebreigziabiher Berhane [2016] QCA 238

Phillip McMurdo JA

The respondent suffered a shoulder injury while employed by the applicant, Woolworths. The respondent’s case was dismissed at trial and the respondent appealed. Due to the financial standing of the respondent, Woolworths made an application for security of the costs of the appeal pursuant to r 772 of the Uniform Civil Procedure Rules 1999 (Qld) which relevantly provides:

 

(1) The Court of Appeal, or the court that made the decision appealed from, may order an appellant to give security, in the form the court considers appropriate, for the prosecution of the appeal without delay and for payment of any costs the Court of Appeal may award to a respondent.

 

Ultimately, McMurdo JA refused the application for security by Woolworths and allowed the respondent to proceed with the appeal, not requiring security for costs. In reaching this decision, his Honour relied on the joint judgment of Davies, Jerrard and Wilson JJ in Murchie v Big Kart Track Pty Ltd (No 2) finding that the factors relevant to exercising the discretion under r 772 include whether the respondent has had their day in court, the respondent’s impecuniosity, and the respondent’s prospects of success on appeal. In relation to the impecuniosity of the respondent, McMurdo JA said:

 

“… the discretion is broad and it requires a consideration of all relevant circumstances, of

which impecuniosity is but one.”

 

 

There is evidence from a solicitor for the appellant that if the security which is sought or any other security is ordered, the appellant will not be able to prosecute the appeal as he has no financial resources

to provide security, and that such an order would frustrate his ability to continue with his appeal.”

 

 

The appellant’s solicitors are a firm who, it is well known, specialise in personal injury claims and act upon a speculative basis.  It may be inferred that they have acted upon that basis thus far in this litigation and would do so for the appeal.  And they are funding the fees of at least senior counsel.”

 

As to the respondent’s prospects of success in the appeal, His Honour said:

 

“… extracts from the evidence, as set out in the appellant’s outline of argument, suggest that the appellant has at least an arguable case.  In particular, it is not unlikely that the trial judge has erred by failing to consider whether the appellant had a claim upon the basis of acceleration of the onset of the condition of which he complained as a result of the respondent’s negligence.”

 

The application for security by the applicant was dismissed and each party’s costs in the application entered as costs in the appeal.

 

David Cormack – Brisbane Barrister & Mediator

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