PARTIES:

TITLE OF COURT: JURISDICTION: FILE NO: DELIVERED: HEARING DATES: JUDGMENT OF:

LOIZOS, Nicholas

V

CARLTON & UNITED BREWERIES SUPREME COURT  (NT) SUPREME COURT (NT)
No AP14 of 1992
3 June 1993
6 May, 3 June 1993 Martin CJ.

CATCHWORDS:

Costs - Security for costs - Security for costs of appeal; Tribunal to Supreme Court, Supreme Court to Court of Appeal - Special circumstances - Discretion unfettered - Material considerations - Impecuniosity - Importance of legal issues -
Work Health Act (NT)
Workers' Compensation Act (NT) Supreme Court Rules (NT) 083,85
Fletcher v Commissioner of Taxation (1992) 37 FCR 288, referred to.

Costs - Security for costs - Legal aid - Whether covers security for costs - Relates to costs ordered to be paid to another party to proceedings -
Legal Aid Act (NT), ss4,33.
Costs - Interlocutory application - General rule - Supreme Court Rules (NT), 063.

REPRESENTATION:
Counsel:
Applicant: J Hebron (Respondent)
Respondent: J Waters (Appellant)
Solicitors:
Applicant: Ward Keller
Respondent: Waters, James, McCormack

Judgment Category classification: B Judgment ID Number: mar93009
Number of pages: 5

LOCAL DISTRIBUTION

mar93009
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. AP 14 of 1992

BETWEEN: NICHOLAS LOIZOS
Appellant
AND:

CARLTON & UNITED BREWERIES
Respondent

CORAM:	MARTIN CJ.

REASONS FOR JUDGMENT
(Delivered 3 June 1993)

The following are the reasons for the decision made on 6 May 1993 refusing an application by the respondent that the appellant provide security for costs of his appeal from the Supreme Court to the Court of Appeal.

The grounds of the appeal relate to the interpretation and application of the Work Health Act and the Workers' Compensation Act to the appellant's circumstances.	He claims to have suffered compensable injury at a time when the Workers' Compensation Act was in operation, but his claim was not made until after the Work Health Act commenced, and on the face of it, it was made

pursuant to that Act.	The questions that arise include that of the compensation to which he is entitled in all the circumstances, including the procedure adopted by him.
Although it is not possible to quantify the number of workers who may be in much the same position as the appellant, nevertheless the questions involved go to the entitlement of injured workers covered by the schemes of compensation in operation in the Territory.	They are significant both to the workers and those who may be fixed with liability to pay.	It cannot be doubted that the pending appeal is genuine•.	It involves interpretation of and application of statutory schemes for workers compensation, a feature of the industrial law landscape for years past and likely to continue.	It is important that the reasonably arguable propositions of law, the determination of which will affect substantial rights and liabilities under the statutes, be finally resolved.	That may best be done by bringing the matter before the Court of Appeal.

However, on the respondent's evidence the appellant is impecunious.	Enquiries made by the solicitors for the respondent show that he has no interest in land in the Territory.	He has a motor vehicle estimated to be worth
$1,000.	The sworn material shows that pursuant to costs orders made thus far in proceedings between these parties the appellant may become liable to the respondent for many thousands of dollars.	His only income appears to be the weekly compensation payments currently amounting to $240.91.

The appellant has placed nothing before the Court to show that he is in any better financial position than the information available through the respondent.	It is proper to proceed on that basis in so far as his financial position is relevant.

It is to be noted that the rules relating to security for costs differ depending upon whether the appeal is from a tribunal to the Supreme Court, or from that Court to the Court of Appeal.	In the former case, if the tribunal has power to award costs in respect of the proceedings  before it, then the Supreme Court may in special circumstances, order such security as it thinks fit  (r83.11).	In the latter case, no security for costs is required, unless the Court of Appeal or a Judge otherwise directs (r85.13); "special circumstances" is not mentioned. The discretion is quite unfettered and does not fall to be exercised by reference to the impecuniosity of the appellant as a special circumstance.	Decisions in other jurisdictions in deciding that impecuniosity may amount to a sufficient ground to order security for costs do not bear as much  weight as they might in light of the rule under  consideration here.	Even if they were of the same weight, the importance of legal issues to be determined would outweigh that factor (for a recent decision in which many of the cases on security for costs are referred to and  discussed see Fletcher v Commissioner for Taxation (1992) 37
FCR 288; Hill J.).

It is plain that any order for security of costs made against the appellant would not be met and he would thus be excluded from pursuing this avenue of redress.	On the other hand, I am mindful of the comments made to the effect that a party in the position of the appellant here is simply prevented "from dragging his opponent from one court to another" if he cannot find security which is ordered.

The appellant is apparently in receipt of legal assistance under the Legal Aid Act, though the extent and nature of that assistance is not disclosed (Legal Aid Act s4(2)).	That factor is mentioned because of an argument put forward on the part of the respondent based upon s33 of the Act which he said would enable the Legal Aid Commission to meet any security which the Court might order.	I do not accept that argument.	Such payment as the Legal Aid Commission may be enabled to make in the circumstances described in s33 only relate to a payment on behalf of the assisted person of costs which the assisted person has been ordered to pay to another party to the proceedings.	This is not an application that the appellant pay the respondent's costs, it is an application that the appellant provide security for the respondent's costs and s33 does not apply.

The issues to be resolved in this Appeal raise matters of importance which need to be resolved and that factor outweighs the appellant's inability to pay any costs which he may be ordered to pay to the respondent or provide

any security for those costs.	For these reasons the application by the respondent for security for an order for security of costs against the appellant was dismissed.

This is an interlocutory application and there is no reason why the usual rules relating to costs in relation to those applications should be disturbed.