SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0036

CON MICHOS	Applicant	
		
v		
		
EASTBROOKE MEDICAL CENTRE PTY LTD	Respondent	

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JUDGES:	KYROU and T FORREST JJA	
WHERE HELD:	MELBOURNE	
DATE OF HEARING:	12 June 2019	
DATE OF JUDGMENT:	21 June 2019	
MEDIUM NEUTRAL CITATION:	[2019] VSCA 140	
JUDGMENT APPEALED FROM:	[2019] VSC 131 (Richards J)	

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PRACTICE AND PROCEDURE – Costs – Application by impecunious applicant for a protective costs order – Proposed appeal relates to scope of access rights under the Health Records Act 2001 – Proposed appeal does not raise significant issues as to the interpretation and application of that Act – Insufficient public interest element to proceeding – Application refused – Section 65C Civil Procedure Act 2010.

PRACTICE AND PROCEDURE – Costs – Application by respondent for security for costs – Low prospects of applicant’s appeal succeeding – Applicant ordered to provide security for costs in the amount of $20,000.

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APPEARANCES:	Counsel	Solicitors	
			
For the Applicant	In person		
			
For the Respondent	Mr T P Warner	Allens 	

KYROU JA
T FORREST JA:
Introduction and summary
1	On 23 October 2016, a psychiatric report concerning the applicant was prepared in connection with his claim for compensation against the Transport Accident Commission (‘TAC’).  As the applicant was a long term patient of the respondent, on 1 November 2016 he requested the TAC to fax the psychiatric report to the respondent so that he could pick it up from its premises.  
2	On 4 November 2016, the respondent informed the applicant that he would need to make an appointment with one of its doctors in order to obtain the psychiatric report.  An appointment was made for 15 November 2016, which did not proceed.  That is because, also on 4 November 2016, the applicant informed the respondent that he was able to arrange for the psychiatric report to be sent to another medical practice, which had provided the report to him that afternoon without the necessity of a consultation with a doctor.  
3	Notwithstanding that the applicant had obtained the psychiatric report from another medical practice, he was aggrieved by the respondent’s conduct in refusing to provide the report to him without a medical appointment.  He made a formal complaint to the respondent’s business manager and then to the Health Complaints Commissioner (‘Commissioner’).  He asserted that the respondent’s conduct constituted a breach of the access provisions in pt 5 (ss 25–44) of the Health Records Act 2001 (‘HRA’).  
4	The Commissioner recommended that the respondent change its policy of always requiring a medical consultation before releasing health information to a client, and the respondent agreed to do so.  The Commissioner declined to consider the applicant’s complaint any further.  Pursuant to s 65 of the HRA, the applicant requested the Commissioner to refer his complaint to the Victorian Civil and Administrative Tribunal (‘VCAT’).  In his application before VCAT, the applicant claimed compensation for the respondent’s alleged breach of the HRA.
5	On 21 December 2017, VCAT dismissed the applicant’s complaint.  It held that the access provisions of the HRA were not engaged because, as the respondent’s possession of the psychiatric report was not ‘necessary for one or more of its functions or activities’, it had not ‘collected’ the report.  VCAT went on to find that, even if the access provisions were engaged, the respondent did not breach them because his request for access had lapsed on 4 November 2016, when he informed the respondent that he had obtained the psychiatric report from another medical practice.  
6	The applicant applied to the Trial Division for leave to appeal against VCAT’s decision.  He relied on 16 grounds, including that VCAT had misconstrued the HRA and had erred in finding that his request had lapsed.
7	On 6 September 2018, Ierodiaconou AsJ granted the applicant leave to appeal limited to the following grounds:
(a)	whether VCAT erred in law by construing s 25 of the HRA with reference to the phrase ‘necessary for one or more of its functions or activities’; and
(b)	whether VCAT erred in law in concluding that a request for access which lapses need not be complied with.
8	The applicant also applied for a protective costs order under s 65C(2A) of the Civil Procedure Act 2010 (‘CPA’), in the form of a cap of $5,000 on any costs order that might be made against him.  On 30 January 2019, Ierodiaconou AsJ refused to make a protective costs order.  
9	On 12 February 2019, the applicant applied for an adjournment of the hearing of the appeal against VCAT’s decision on the basis of a proposed appeal against Ierodiaconou AsJ’s refusal of a protective costs order.  On the same day, Ierodiaconou AsJ dismissed the application for an adjournment and ordered that the applicant pay the respondent’s costs of the application. 
10	The applicant appealed against Ierodiaconou AsJ’s decisions to refuse an adjournment and a protective costs order.  He also applied for an extension of time to appeal against her refusal of leave on all but two of the applicant’s grounds of appeal against VCAT’s decision.  The application and the two appeals have been the subject of submissions to Richards J but she has not yet determined them. 
11	The appeal against VCAT’s decision on the two grounds upon which Ierodiaconou AsJ granted leave to appeal, was heard by Richards J on 19 February 2019 and was determined on 7 March 2019.  She held that VCAT had misconstrued the access provisions of the HRA, by reading down the word ‘collected’ in s 25(2) by reference to the phrase ‘necessary for one or more of its functions or activities’ in health privacy principle 1.1 contained in sch 1.  However, although Richards J allowed the appeal in part due to this error, she affirmed VCAT’s decision on the basis that VCAT had correctly decided that the respondent had not breached the access provisions, due to the applicant’s withdrawal of his request.  Richards J stated that ‘[i]t was open to [VCAT] to find that [the applicant] withdrew his request for access to the [psychiatric] report, so that his right to access under s 34(2)(c) effectively lapsed’.  Richards J has not yet determined the costs of the appeal against VCAT’s decision.
12	On 8 April 2019, the applicant applied for leave to appeal against the decision of Richards J.  That application has not yet been heard.  
13	On 22 May 2019, the respondent applied for an order requiring the applicant to provide security for the respondent’s costs of the application for leave to appeal and, if leave is granted, the appeal.  
14	On 30 May 2019, the applicant applied for the following orders:
1	To render nugatory the appeal heard on 19 February 2019 [by Richards J].
2	All other applications associated with [that] case …. be stayed until the determination of this application.
3	A protective costs order.
4	Any other order the Court deems necessary.
15	The applicant has at all times represented himself.  
16	For the reasons that follow, we will order that:
(a)	paragraph 1 of the applicant’s application dated 30 May 2019 be added as a ground of appeal in his application for leave to appeal;
(b)	the applicant’s applications for a stay and a protective costs order be refused; and
(c)	the applicant provide security for the respondent’s costs in the amount of $20,000.
Applicant’s applications for order rendering appeal ‘nugatory’ and a stay
17	It will be recalled that para 1 of the applicant’s application dated 30 May 2019 seeks an order ‘[t]o render nugatory the appeal heard on 19 February 2019 [by Richards J]’.  As the meaning of this paragraph is unclear, at the hearing of the application, the applicant was asked to clarify it.  
18	The applicant informed the Court that, in essence, he is seeking a declaration that Richards J’s decision is void and an order setting it aside on the basis that she should have dealt with his appeal against Ierodiaconou AsJ’s decision to refuse a protective costs order before dealing with the substantive appeal against VCAT’s decision.  He contended that applications for protective costs orders are meant to be dealt with in advance of the hearing of a substantive application or appeal.
19	The applicant submitted that Richards J erred in law in proceeding with the substantive appeal against VCAT’s decision without first deciding whether Ierodiaconou AsJ had erred in refusing a protective costs order.  According to the applicant, this error deprived him of the opportunity to elect not to proceed with the substantive appeal in the event that Ierodiaconou AsJ’s decision to refuse a protective costs order was upheld.
20	The respondent submitted that Richards J did not err in determining the substantive appeal against VCAT’s decision without first dealing with the applicant’s appeal against Ierodiaconou AsJ’s decision to refuse a protective costs order.  It contended that the applicant expressly elected to proceed with the substantive appeal with the knowledge that the appeal relating to refusal of a protective costs order would be dealt with subsequently.
21	A protective costs order may be made under s 65C(2)(d) of the CPA.  Section 65C provides as follows:
65C	Other costs orders
(1)	In addition to any other power a court may have in relation to costs, a court may make any order as to costs it considers appropriate to further the overarching purpose.
	(2)	Without limiting subsection (1), the order may—
		…
	(d)	fix or cap recoverable costs in advance.
(2A)	In making an order under subsection (1) to fix or cap recoverable costs in advance, the court may consider the following matters— 
	(a)	the timing of the application;
(b)	the complexity of the factual or legal issues raised in the proceeding;
(c)	whether the party seeking the order claims damages or other form of financial compensation;
(d)	whether the claim of the party seeking the order has a proper basis and is not frivolous or vexatious;
(e)	the undesirability of the party seeking the order abandoning the proceeding if the order is not made;
(f)	whether there is a public interest element to the proceeding;
(g)	the costs likely to be incurred by the parties;
(h)	whether the other party has been uncooperative or delayed the proceeding;
(i)	the ability of the party seeking the order to pay costs;
(j)	whether a significant number of members of the public may be affected by the outcome of the proceeding;
(k)	whether the claim of the party seeking the order raises significant issues as to the interpretation and application of statutory provisions.
	(3)	An order under subsection (1) may be made—
		(a)	at any time in a proceeding; 
(b)	in relation to any aspect of a proceeding, including, but not limited to, any interlocutory proceeding.
22	The ‘overarching purpose’ that is referred to in s 65C(1) of the CPA is set out in s 7 of that Act.  It is ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’ in a civil proceeding.
23	Section 9(1) of the CPA provides that, in making any order in a civil proceeding, a court shall further the overarching purpose by having regard to seven objects, including the following:
(d)	the efficient use of judicial and administrative resources;
…
(g)	dealing with a civil proceeding in a manner proportionate to—
	(i)	the complexity or importance of the issues in dispute; and
	(ii)	the amount in dispute.
24	Section 9(2) of the CPA provides that, for the purposes of s 9(1), the court may have regard to eight matters, including the following:
(f)	any prejudice that may be suffered by a party as a consequence of any order to be made … by the court;
(g)	the public importance of the issues in dispute and the desirability of a judicial determination of those issues.
25	The phrase ‘in advance’ in s 65C(2)(d) of the CPA indicates that, unlike ordinary costs orders which are made at the end of a proceeding and are informed by its outcome, protective costs orders are ordinarily made at an early stage of a proceeding and may be informed by the matters set out in s 65C(2A).  As protective costs orders are intended to provide protection against substantial adverse costs orders, it is obviously desirable that an application for a protective costs order be made and determined at an early stage of a proceeding.  That is because a favourable decision to grant a protective costs order will enable the person applying for it to proceed with the litigation.  An unfavourable decision will enable him or her to make an informed decision whether to proceed further, prior to significant legal costs being incurred.  Clearly, deferral of a decision on an application for a protective costs order until after the relevant proceeding has been determined can undermine the purpose of such an order.  
26	It is not necessary for us to examine the circumstances which resulted in Richards J hearing and determining the substantive appeal against VCAT’s decision prior to the appeal against Ierodiaconou AsJ’s decision to refuse a protective costs order.  It is inappropriate that the applicant’s contention — that Richards J’s decision in relation to the substantive appeal is vitiated by virtue of her failure to first deal with the appeal against Ierodiaconou AsJ’s decision to refuse a protective costs order — be dealt with by way of an interlocutory application to this Court.  That contention is in the nature of a ground of appeal against the validity of Richards J’s decision and should be dealt with as part of the applicant’s application for leave to appeal against that decision. 
27	Accordingly, we will order that the following ground be added to the applicant’s application for leave to appeal:
6	Her Honour erred in law, and her decision should be set aside, on the basis that her failure to hear and determine the applicant’s appeal against the order of Ierodiaconou AsJ refusing to make a protective costs order, prior to hearing and determining the substantive appeal against the Tribunal’s decision, deprived the applicant of an opportunity to make an informed decision whether to proceed with the substantive appeal. 
28	We will also order that the applicant’s submissions in support of para 1 of his application dated 30 May 2019 be deemed to form part of his written case in support of his application for leave to appeal.
29	We now turn to the applicant’s application for a stay.  This Court has power to grant a stay of a decision of the Trial Division pending the hearing and determination of an application for leave to appeal and any resulting appeal pursuant to rr 64.39 and 66.16 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).  The principles for determining whether the Court will grant such a stay are well established.  The applicant for a stay must establish that there are special circumstances for granting a stay.  Special circumstances will be established where there is a real risk that an appeal, if successful, would be rendered nugatory if a stay is not granted. 
30	We have determined that the applicant’s contention referred to at [26] above should be dealt with as a ground of appeal in his application for leave to appeal against Richards J’s decision.  The mere fact that this ground, if upheld, may result in the setting aside of Richards J’s decision is not a proper basis for granting a stay of that decision.  The applicant’s appeal, if successful, will not be rendered nugatory if a stay is not granted, nor will he suffer any form of prejudice if the decision remains on foot pending the hearing and determination of his application for leave to appeal and any resulting appeal.  Accordingly, there is no basis for granting a stay.
Applicant’s application for a protective costs order 
31	It will be recalled that para 3 of the applicant’s application dated 30 May 2019 sought a protective costs order.  At the hearing of that application, the applicant clarified that he is seeking such an order in the form of a cap of $5,000 in respect of any costs order that might be made against him in relation to his application for leave to appeal and any resulting appeal.  The applicant also clarified that, in support of his application for such a cap, he relies on the affidavits and submissions he made in the Trial Division in support of his application to that division for a protective costs order.  We had anticipated that the applicant would rely on those affidavits and submissions and considered them prior to the hearing before us.  
32	The matters that are relevant to an application for a protective costs order under s 65C of the CPA were considered by this Court in Bare v Small.  Those matters are now reflected in s 65C(2A) and provide a useful framework for considering the present application.  
The timing of the application 
33	The applicant filed his application for leave to appeal on 8 April 2019.  The respondent did not contend that the application for a protective costs order dated 30 May 2019 was not made on a timely basis. 
The complexity of the factual and legal issues raised in the proceeding
34	Although the applicant’s application for leave to appeal contains five grounds of appeal, the key legal issue he seeks to agitate is whether Richards J erred in construing the access provisions of the HRA as being subject to the qualification that an organisation that receives a request for access to health information is not obliged to comply with the access provisions if the request is withdrawn.  Richards J found that, although the HRA does not contain an express provision that a request for access to health information can be withdrawn, an implied right to withdraw exists by virtue of the ‘renunciation maxim’.  The maxim is that, as a general principle, ‘anyone may, at [their] pleasure, renounce the benefit of a stipulation or other right introduced entirely in [their] favour’.  
35	The applicant submitted that Richards J’s construction of the HRA is wrong because it is inconsistent with the express provisions of that Act.  The respondent submitted that the judge’s construction is correct and that the renunciation maxim is supported by authority.  The parties’ submissions are summarised in more detail at [62]–[66] below in the context of the respondent’s application for security for costs.  
36	In our opinion, the legal issues raised by the applicant’s application for leave to appeal involve the application of well-established principles of statutory interpretation and are not overly complex.  
37	The grounds of appeal in the application for leave to appeal do not raise any factual issues.  
38	In the course of his oral submissions, the applicant contended that VCAT erred in finding that his request for access to the psychiatric report had lapsed.  He stated that VCAT’s finding was contrary to the evidence he gave and that VCAT was wrong to prefer the evidence of the respondent’s witness, Meredith Duggan, to his evidence.  He stated that Ierodiaconou AsJ erred in refusing leave to challenge VCAT’s finding and emphasised that his application for an extension of time within which to appeal against that refusal is still pending before Richards J.  He invited us to read the relevant parts of the transcript of the VCAT hearing.  
39	We have considered the evidence of the applicant and Ms Duggan before VCAT.  The conflict in that evidence does not give rise to any factual issues that fall within the grounds of appeal in the applicant’s application for leave to appeal.  We note that Richards J held that the evidence provided a sufficient foundation for a factual finding that, on 4 November 2016, the applicant withdrew his request to the respondent for access to the psychiatric report and that the request had effectively lapsed.
Whether the applicant claims damages or financial compensation
40	The applicant initially sought compensation in respect of the respondent’s alleged breach of the HRA.  However, by the time he made his application to the Trial Division for a protective costs order, he no longer sought such relief.  
Whether the appeal lacks a proper basis or is frivolous or vexatious
41	The applicant submitted that, although he received the psychiatric report from another medical practice and will not receive any personal benefit if his appeal is successful, the issues he seeks to raise on appeal involve important matters of public interest regarding the proper interpretation of the HRA.
42	The respondent submitted that the issues the applicant seeks to agitate on appeal are trivial when considered in the context of the significant legal costs that have been incurred to date and the fact that he received the psychiatric report from another medical practice on the same day that he sought it from the respondent.  
43	We are not satisfied that the appeal lacks a proper basis or that it is frivolous or vexatious.  However, as discussed in greater detail at [67]–[73] below in the context of the respondent’s application for security for costs, the appeal has low prospects of success.

Whether applicant will abandon the proceeding if a protective costs order is not made  
44	The applicant informed the Court that he will not proceed with the application for leave to appeal if a protective costs order is not made.  
45	The respondent submitted that the Court should be slow to accept the applicant’s statement because, despite making similar statements in the Trial Division, he continued to pursue his proceeding in that division after Ierodiaconou AsJ refused to make a protective costs order.
46	As we have concluded at [67]–[73] below that the appeal has low prospects of success, the risk that the applicant will abandon the proceeding if a protective costs order is not made is not a material consideration.  
Whether there is a public interest element to the proceeding
47	The applicant submitted that the HRA confers important access rights on members of the community in relation to information that is of fundamental concern to them — namely, their health information — and that it is in the public interest that those rights are clarified so as to give full effect to them.  He contended that Richards J erred in concluding that a request for access can be treated as lapsed or withdrawn and that this interpretation has the potential to significantly curtail access rights under the HRA.  He argued that it is in the public interest for this error to be corrected on appeal.  The applicant emphasised that, as he is not seeking compensation, he is pursuing the appeal purely in the public interest.
48	The respondent submitted that Richards J has correctly interpreted the HRA and that it is not in the public interest for further significant public and private resources to be expended in circumstances where the document that gave rise to the applicant’s grievance was provided to him more than two years ago.  
49	The respondent also submitted that the mere fact that a proceeding may result in clarification of the meaning of a statute, and that such clarification may benefit the public as well as the parties to the litigation, does not displace the application of the usual principles regarding costs. 
50	The applicant’s appeal deals with an important statutory right whose scope he seeks to clarify in circumstances where he does not stand to receive any personal benefit in the event the appeal is successful.  Accordingly, it cannot be said that there is no public interest element to the appeal.  However, in the light of our assessment that the appeal has low prospects of success, we are not satisfied that any such public interest element is significant. 
The costs likely to be incurred by the parties 
51	As the applicant is self-represented, he is unlikely to incur significant legal costs.  However, it is common ground that the respondent will incur substantial legal costs.  This is borne out by the estimated costs the respondent’s solicitor has set out in his affidavit in support of the respondent’s application for security for costs.
Whether the respondent has been uncooperative or delayed the proceeding  
52	The applicant conceded that, in respect of the application for leave to appeal, the respondent has not been uncooperative.  He complained that the respondent had not yet filed its written case.  However, the respondent informed the Court that, following the filing of its application for security for costs, it had corresponded with the Court of Appeal Registry regarding a new timetable for completion of interlocutory steps, including the filing of its written case.  In these circumstances, we are not satisfied that the respondent has delayed the proceeding. 
Applicant’s ability to pay costs
53	It is common ground that the applicant is impecunious and would have difficulty in meeting an order for costs.
Whether outcome of proceeding may affect significant number of members of public 
54	The applicant submitted that, as the access rights in the HRA are available to all members of the public, the outcome of the appeal will affect the public generally.  
55	The respondent submitted that there is no evidence that Richards J’s finding that a request for access to health information under the HRA need not be complied with once it is withdrawn, has had any adverse impact on a significant number of members of the public.  
56	We accept the respondent’s submission.  The present case is distinguishable from cases such as Corcoran v Virgin Blue Airlines Pty Ltd, Delta Electricity v Blue Mountains Conservation Society Inc, and Woodlands v Permanent Trustee Company Ltd where the conduct complained of had adverse financial, health or other personal consequences for large classes of individuals.  The present case is also distinguishable from Bare, where one of the legal issues — whether the unlawfulness that attaches to conduct or a decision of a public authority that is incompatible with human rights amounts to jurisdictional error — was both complex and had the potential to affect a great number of members of the public.  For the reasons we have already stated, the same cannot be said about the issues in the present case.
Whether appeal raises significant issues as to interpretation or application of HRA 
57	For the reasons stated above under the heading ‘The complexity of the factual and legal issues raised in the proceeding’, we are of the view that the appeal does not raise significant issues as to the interpretation and application of the HRA.   
Conclusion on application for a protective costs order
58	Having regard to our assessment of the matters set out in s 65C(2A) of the CPA, we do not consider that making a protective costs order would further the overarching purpose set out in s 7.  In reaching this conclusion, we have had particular regard to the limited public importance and relatively straightforward nature of the issues in dispute, the absence of any personal prejudice to the applicant if the appeal does not proceed and the significant judicial and administrative resources that have already been devoted to the applicant’s grievance.
59	Accordingly, the applicant’s application for a protective costs order will be refused.  
Respondent’s application for security for costs
60	The Court has power under r 64.38(4) of the Rules to make an order that security be given for the costs of an application or appeal on such terms as the Court thinks fit.  The power to order security for costs involves an exercise of discretion.  In Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [No 3], McLeish JA said the following about the factors which are relevant to the exercise of that discretion:
Various factors have been identified as relevant to the exercise of [the discretion to order security for costs], including the prospects of success of the appeal, the magnitude of risk that a costs order would not be satisfied, whether the making of the order would be oppressive in that it would stifle a reasonably arguable claim, whether any impecuniosity of the appellant arises out of the conduct complained of in the proceeding, and whether there are aspects of the public interest which ought to be weighed in the balance.
61	The factors to which McLeish JA referred in Bodycorp provide a useful framework for considering the respondent’s application for security for costs.  

Prospects of success of the appeal
62	The respondent submitted that the prospects of success of the appeal ‘are, at best, poor’.  This was said to be because the renunciation maxim upon which Richards J relied in concluding that the access provisions of the HRA need not be complied with in respect of a request for access which has been withdrawn, is supported by authority and accords with common sense.  The authority relied upon by the respondent is the decision of the Full Federal Court in Federal Commissioner of Taxation v McGrouther.  
63	According to the respondent, to construe the HRA as requiring organisations that receive a request for access to health information — whether they be private or public — to continue to process the request where it has been withdrawn by the person who made it would not further the purpose or objects of the HRA.  Rather, so it was said, it would lead to an absurd waste of public or private resources.  
64	The applicant submitted that there are strong prospects that his appeal will succeed.  This was said to be because s 34(2)(c) of the HRA is a mandatory provision that requires an organisation that receives a request for access to health information to provide access within 45 days and there is no provision which expressly provides for the withdrawal of a request.  The applicant contended that the renunciation maxim cannot override the express mandatory provisions of the HRA.   
65	The applicant argued that, contrary to the respondent’s submission that the application of the renunciation maxim avoided absurd results, the maxim had the potential to undermine the access rights in the HRA and lead to absurd results.  This was said to be because the maxim would enable organisations that receive requests for access to ignore them by simply treating them as having lapsed.
66	The applicant submitted that McGrouther is distinguishable because, unlike s 34(2)(c) of the HRA, the statutory provision in issue in that case did not require the decision-maker to make a decision within a specified timeframe.  He argued that Richards J’s construction of the HRA is contrary to its purpose and objects and fails to give proper consideration to the human rights embodied in the Act.  According to the applicant, the legal issues raised in his application for leave to appeal are not only complex but of fundamental importance.
67	In our opinion, the prospects of success of the applicant’s appeal are low.  Contrary to the applicant’s submission, the fact that the HRA does not contain an express provision dealing with withdrawal of applications for access to health information does not preclude the access provisions in the HRA being construed as subject to a right to withdraw a request for access.  Such a construction does not adversely affect the rights of access because the power to decide whether to withdraw a request lies entirely with the person making it.  
68	A construction of the access rights of the HRA which recognises that a request for access can be withdrawn is consistent with the purpose and objects of the Act because it confers a choice on individuals seeking access to their health information whether to pursue a request once it is made or withdraw it.  It is difficult to see how the purpose and objects of the HRA would be advanced by a construction that would compel a person to receive health information which he or she no longer wishes to receive.  Furthermore, no useful purpose would be achieved in adopting a construction which would require an organisation that receives a request for access to continue to devote resources to processing it notwithstanding that it has been withdrawn.  
69	The applicant’s contention that the construction of the HRA adopted by Richards J will enable organisations that receive requests for access to undermine the access rights by simply treating a request as having lapsed, is not persuasive.  Such an organisation would breach its obligations under the HRA unless there is objectively verifiable evidence that a request has been withdrawn by the person making it.
70	The law has long recognised the principle that, ordinarily, where a legal right exists solely for the benefit of a particular person, that person can elect to waive that right.  The renunciation maxim reflects this principle.  
71	We accept that the facts and the legislation in McGrouther differ from the present case.  However, these differences do not necessarily provide a basis for distinguishing the underlying legal principles applied in McGrouther.  That case involved s 14ZYA of the Taxation Administration Act 1953 (Cth) (‘TAA’).  Section 14ZYA(2) enabled a taxpayer to give to the Commissioner of Taxation a notice requiring the Commissioner to make a decision on an objection to an assessment.  Section 14ZYA(3) provided that if the Commissioner did not make a decision within 60 days after receiving the notice, the Commissioner was taken to have made a decision to disallow the objection.  The Full Federal Court held that a taxpayer who had given a notice under s 14ZYA(2) is entitled to withdraw it, in accordance with the renunciation maxim.  Allsop CJ stated that, as a matter of construction, the operation of s 14ZYA(3) assumes a valid notice that has not been withdrawn by the taxpayer, and that such a construction is achieved by reading the TAA against the renunciation maxim.  He said that ‘there is no public policy in the ineluctable operation of s 14ZYA against the wishes of the taxpayer’.
72	Consistent with McGrouther, the operation of the obligation of an organisation under s 34(2)(c) of the HRA to provide access to health information pursuant to a request can be said to assume that the request is valid and has not been withdrawn.
73	For the above reasons, the applicant will have considerable difficulty in persuading the Court that the construction of the HRA adopted by Richards J is erroneous. 
Magnitude of risk that a costs order would not be satisfied 
74	It is common ground that, as the applicant is impecunious, it is unlikely that a costs order in favour of the respondent will be met.  
75	In oral submissions, the applicant relied on statements in some of the authorities that the impecuniosity of a plaintiff who is a natural person should not be a basis for the making of an order for security for costs.  However, these statements have been made in the context of a trial.  In relation to an appeal, the appellant’s impecuniosity is a factor that can be taken into account in support of a decision to make an order for security for costs.  
Whether an order for security for costs would stifle a reasonably arguable claim  
76	We accept that if we make an order for security for costs, the applicant may not be able to comply with it, resulting in a stay of his application for leave to appeal.  However, in view of our assessment that the applicant’s appeal has low prospects of success, we are not satisfied that such an outcome would be oppressive in the sense that it would stifle a reasonably arguable claim.
Whether the respondent contributed to the applicant’s impecuniosity  
77	The applicant conceded that the respondent’s conduct did not contribute to his impecuniosity.  
Whether there are aspects of the public interest to be weighed in the balance 
78	We have already discussed the parties’ submissions on the public interest at [47]–[49] above in the context of the applicant’s application for a protective costs order.  
79	The applicant emphasised that, in deciding to grant him leave to appeal on the two grounds set out at [7] above, Ierodiaconou AsJ stated that ‘it is of public importance to clarify [the access] provisions [of the HRA] to assist in the proper operation of the [Act]’.  The applicant also submitted that his appeal is in the nature of a ‘test case’ to clarify the access provisions of the HRA and, as such, the costs of the appeal are incidental to the proper exercise of public administration and should not be wholly borne by him.  Further, according to the applicant, as his appeal involves an important point of law affecting a matter of public interest, security for costs should not be ordered even though he is impecunious. 
80	The respondent submitted that the applicant’s reliance on the above statement by Ierodiaconou AsJ was selective because it failed to take into account the fact that in her decision refusing a protective costs order, Ierodiaconou AsJ stated that ‘whilst there is public importance in clarifying the legislation, the proceeding does not raise significant issues’. 
81	The respondent emphasised that the applicant has already availed himself of two ‘no costs’ avenues of review in relation to his grievance, namely the Commissioner and VCAT.  The respondent also highlighted that the applicant has ‘had his day in court’.  The respondent submitted that, in the light of this procedural history, fairness dictates that, for the applicant to pursue his appeal, an order should be made requiring him to provide security for the respondent’s costs.  
82	We agree with the respondent’s submissions.  
83	Ierodiaconou AsJ was correct in stating, in effect, that there was a public interest in the Supreme Court clarifying whether VCAT’s construction of the access rights in the HRA was correct.  This was particularly so in the light of the fact that VCAT’s construction of when an organisation ‘collected’ information had the potential to narrow the scope of the access rights.  As such, it was clearly arguable that VCAT’s construction was wrong.  The public interest was advanced by Richards J’s broader interpretation of the meaning of the word ‘collected’, which enhanced the scope of those rights.  
84	The same public interest considerations do not apply to the applicant’s appeal to this Court from Richards J’s construction of the HRA in relation to the withdrawal of a request.  For the reasons we have already discussed at [67]–[73] above, that construction does not have the effect of narrowing the scope of the access rights and the prospects of this Court determining that the construction is incorrect are low.  There is no need for a ‘test case’ on whether Richards J’s construction is correct. 
Conclusion on whether security for costs should be ordered  
85	In the light of the above analysis, we are satisfied that it is appropriate to order the applicant to provide security for the respondent’s costs.
Quantification of security for costs
86	In support of its application for security for costs, the respondent filed an affidavit sworn by its solicitor, Peter Arthur, on 22 May 2019.  In his affidavit Mr Arthur described himself as ‘the solicitor on the record’ for the respondent but did not indicate the position he holds within his firm, his admission date or his legal experience — particularly his experience in conducting litigation.  
87	Mr Arthur states that between 20 April 2019 and 10 May 2019, the respondent incurred costs of $4,365 in respect of the applicant’s application for leave to appeal and, to a limited extent, the respondent’s application for security for costs.  He estimates that the respondent will incur a further amount of $31,604, inclusive of counsel’s fees, between the date of his affidavit and the hearing of the application for leave to appeal.  Mr Arthur states that, ‘[b]ased on [his] experience, [he considers] a reduction of 30% to be a reasonable estimate of the reduction that would typically be applied’ on taxation.  Applying that discount to the amount of $35,969 (representing the costs incurred and the estimated future costs), the respondent seeks security in the amount of $25,178.  
88	The applicant has not filed any affidavit or made any submissions challenging Mr Arthur’s estimated costs.
89	In Trailer Trash Franchise Systems Pty Ltd v GM Fascia & Gutter Pty Ltd, this Court stated the following about the approach to be adopted in assessing the quantum of security for costs:
In determining a sufficient amount for security for costs, the court does not undertake precise mathematical calculations.  Rather, it adopts a ‘broad brush’ approach involving ‘guesstimates as much as estimates’.  However, the broad brush approach does not involve an abstract process.  It must have an evidentiary basis.  The court must have regard to the evidence adduced by the parties as to quantum — whether in the form of an affidavit by an experienced litigation lawyer or an expert report by a costs consultant — although it is not bound by the parties’ estimates.  The court may scrutinise the individual items in the parties’ estimates, but not to the extent of minute examination akin to a taxation.
The amount ultimately fixed by the court must not be so low that it fails to provide any real protection to the party seeking security, or so high that it is oppressive to the party required to provide the security.  The amount must be ‘just and reasonable’ in all the circumstances of the particular case.
90	Unfortunately, as Mr Arthur has not provided details of his experience as a litigation solicitor, we are unable to place much weight on any opinion he expresses in his affidavit.  However, as the applicant did not challenge Mr Arthur’s estimated costs, Mr Arthur’s affidavit is of some assistance.  
91	Doing the best we can with the material available to us, we have determined that $20,000 is an appropriate amount for security for costs incurred by the respondent until the hearing and determination of the applicant’s application for leave to appeal and any resulting appeal.
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