THE GREATER UNION ORGANISATION PTY LTD v CALIN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS JA 10 April 1989 [1989] NSWCA 92 Samuels JA This is an application for the provision of security for costs, themotion being brought by the respondent to the appeal who was the successful defendant at the trial which took place before Finlay J and a jury over seven or eight days in September last year. So far as I am aware, because there has been no time to explore the facts in great detail, nor indeed is it appropriate to do so, the plaintiff's case in negligence against the defendant was that on entering one of the defendant's cinemas she slipped and sustained some injury. In alleged consequence of the injury she developed the most bizarre conditions, which included what seems to have been a substantial reversion to childhood and a divorce from the reality of the world and the circumstances surrounding her. As a result she was unable to give evidence at the trial. The evidence of the occurrence was provided only by her husband and her son. There was, it is clear, an extreme conflict of medical opinion. So far as the plaintiff was concerned it was a matter of great difficulty for the consultant psychiatrist and the consultant neurologist to determine into which of their special fields her condition fell. Neither of them was of the opinion that she was other than genuine, a view which they appear to have expressed by at least two nurses who had taken care of the plaintiff for some extended period. On the other hand medical evidence was called by the defendant indicating that there was no physiological, pathological or mental condition known to medicine which could explain the signs which the plaintiff demonstrated. The case was fought largely on the footing that the plaintiff was a fraud, and that it was to be inferred from the medical conflict and the fact that she was a malingerer that her account of the accident and its consequences was a fabrication. It appears from the summing up, which I have been able to glance through, that the learned judge left this issue very clearly to the jury. As I have said, the jury found for the defendant. They may have arrived at that conclusion merely because they were not satisfied that the plaintiff had proved a case of negligence and without any pejorative view of the plaintiff's credit; or they may have arrived at that conclusion largely because they did not believe what was advanced on her behalf and had come to some affirmative view that her credit had been severely affected in the course of the evidentiary conflict. The plaintiff is without resources and she has, it seems, no family resources which are available to her. She was legally aided at the trial but legal aid has been refused for the purpose of the appeal; and I may add that the initial refusal of legal aid was taken on appeal under the Act and that appeal failed. The claimant seeks the order on three grounds: firstly, that the appellant is impecunious; secondly, that the appeal is against the jury's verdict, there being no criticism of the summing up; and thirdly that legal aid for the appeal has been refused. 2 UNREPORTED JUDGMENTS The appeal is taken, although there are four grounds, in substance only on the ground that the jury's verdict was against the evidence and the weight of evidence or, in other words, was unreasonable or perverse. This is undoubtedly a difficult ground of appeal to make good. One can scarcely imagine circumstances in which credit was of greater significance and thus, according to classic received opinions, the appropriate tribunal of fact was a jury. The power to make an order for security for costs is contained in PtS1 r11. Subr1 of rll provides that the Court of Appeal may in special circumstances order that such security as the Court of Appeal thinks fit be given for the costs of the appeal. Despite the glosses which cases have worked on this provision, it is to be borne in mind that the court, in order to make an order, must be satisfied that there are special circumstances. There are cases in which impecuniosity combined with other factors have been held to amount to special circumstances; for example Lall v 53-55 Hall Street Pty Ltd [1978] 1 NSWLR 310, and the case there referred to, Kennedy v McGeechan, which is reported at 315 of that volume. In a recent case, Mann v Westpac Banking Corporation Ltd (22 August 1988, unreported), the President said that the court "has always approached orders for security for costs with caution." I respectfully agree. It is a curious case. If I were required to make some prognosis as to the likely result of the appeal I would have to say that I think that the plaintiff has a formidable task ahead of her. She was firmly supported by specialist medical opinion and by opinion of other professionals in the nursing field. But the jury apparently preferred a contrary view. If the order is made it seems that she will be unable to proceed with the appeal. I do not think that on the facts before me the requirement of special circumstances has been made out. If it is a question of balancing the competing interests of the parties and the interest of the community, I would be inclined to think that the balance of interest favours the plaintiff appellant. For those reasons I do not think that it is an appropriate case in which to make an order for security, and the motion is dismissed with costs.