GHABOUR v ROYAL PRINCE ALFRED HOSPITAL [1995] NSWCA 169

GHABOUR v ROYAL PRINCE ALFRED HOSPITAL SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA

22 May 1995

[1995] NSWCA 169

Sheller JA. These are applications, which proceed on amended notices of motion by the respondents, Royal Prince Alfred Hospital and Dr Harvey, in an appeal brought by the opponent, Albert Ghabour, from a jury verdict on 2 September 1993 in favour of the respondent defendants.

The application is that the opponents" appeal be dismissed for want of prosecution or alternatively, that he provide security for the respondent's costs of the appeal.

Affidavits have been filed on behalf of the claimants and the opponent and were read without objection. I have also been furnished with a chronology which sets out in detail events which demonstrate the delay in prosecuting the appeal. The notices of appeal were filed within time on 30 September 1993. There was delay in settling an index and the appeal books were not served until 24 February 1995 after the application for strike-out had been made in November 1994.

While the delay in this matter is unsatisfactory, the evidence of Mr Ghabour, which was not objected to, demonstrates that due to his impecuniosity he had great difficulty in retaining the services of legal advisers until quite late in the day when his current solicitor was retained. His evidence demonstrates that he is impecunious and I am satisfied that if he were required to give security for the costs of the appeal as a condition of its proceeding, he would be effectively denied the ability to carry the appeal forward. Special circumstances have to be shown for the giving of security.

Miss Collins, who put the argument on behalf of Dr Harvey, referred me to the remarks made by the trial judge on the respondent's application that there was no case to go to the jury. His Honour said that it was not without considerable hesitation that he accepted the submission made on behalf of the opponent's solicitor that there was material to go to the jury. It is, however, impossible in a matter of this complexity for me to form any useful view about the prospects of the appeal.