Three WA policemen who Tasered a couple during an arrest and were ordered to pay damages have had an appeal setback, with their union not paying security on a crucial court costs bill.
Robert Cunningham and Catherine Atoms were outside the Esplanade Hotel in the early hours of November 2, 2008 when they saw a group of men falling into a garden bed and tried to help.
But police believed they were causing a disturbance and the couple were Tasered during a scuffle.
The University of WA associate professor of law and Ms Atoms sued the state and the three officers involved, Peter Clark, Simon Traynor and Glenn Caldwell, and were awarded $1.1 million in damages.
The 2015 trial judge found the officers were liable for battery, misfeasance in public office, false imprisonment and malicious prosecution.
She also found the conduct caused the couple to suffer post-traumatic stress disorder and a back injury to Ms Atoms.
The officers challenged, arguing on 24 grounds, but were ordered by Justice Robert Mitchell last month to pay $90,000 security on a court costs bill – already estimated to have reached at least $900,000 – by August 23 or the appeal would be dismissed.
On Wednesday, the full bench of the Court of Appeal dismissed an application to review Justice Mitchell’s order.
The court heard the union decided not to provide the security payment, and the judges said “the appeal is arguable, but we … would not put it any higher than that”.
But the officers have applied for a 48-hour extension to make the payment and will find out later on Wednesday if it has been allowed.
In his recent provisional assessment of the appeal, Justice Mitchell said the arguments advanced in support of grounds one to 19 were “far from strong”.
He also noted the officers’ liability for damages and trial costs already exceeded their assets.
Traynor’s wages have been suspended as he is on continued sick leave while Caldwell is unemployed and receives a disability pension but Clark continues to work in the police force.