13. The Court Procedures Rules provide in r 5302- (sic) for the Court of Appeal to make an order for security for costs. It is in the following terms:
Appeals to Court of Appeal - security for costs
(1) Security for costs of an appeal is not required, unless the Court of Appeal otherwise orders.
(2) This rule does not limit division 2.17.8.
14. In Hughes v Janrule Pty Ltd (2011) 252 FLR 397 at 409; [61], Penfold J held that a single judge of the Court of Appeal may, under s 37J(l)(k) of the Supreme Court Act 1933 (ACT), exercise this jurisdiction of the Court.
15. Stephen Colbran, in Security for Costs (Longman Professional, 1993) at 1; [1.3], addressed the questions of what the purpose of such orders as follows (sic):
The purpose of security for costs is two-fold:
(a) to provide protection for a defendant by ensuring an available fund to defray costs incurred by the defendant in defending a frivolous claim; and
(b) to discourage the filing of unmeritorious and frivolous claims which may amount to vexatious harassment. (footnotes omitted)
16. As Hood J said in Bethune v Porteous [1892] VicLawRp 94; (1892) 18 VLR 493 at 494,
the reason underlying numerous and varying cases in which appellants have been ordered to give security will be found in the injustice to a successful litigant that may be caused if he be compelled to contest the matter for a second time without a probability of obtaining his costs if ultimately successful.
17. In Benjamin v GB Franchising Australia Pty Ltd [2008] ACTCA 11; (2008) 1 ACTLR 287, I discussed the principles to the discretion to order security for costs in appellate matters. These may be summarised as follows:
(a) the default position in this jurisdiction is that no security is payable and therefore the applicant has to make out a satisfactory case for security being ordered;
(b) there is not in this jurisdiction, as in some other jurisdictions (see, eg, Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 64.24(2); Uniform Civil Procedure Rules 2005 (NSW) r 50.8; Supreme Court Rules 2006 (SA) r 194(1)), a requirement that the applicant show special circumstances; decisions from such other jurisdictions must, therefore, be treated with some caution;
(c) there are differences between the principles governing the discretion to order a moving party to provide security for costs at trial and on appeal; thus, impecuniosity is not a significant consideration in respect of trials but is more important in respect of appeals;
(d) unlike the position in England, impecuniosity, while important, is not decisive and there are other relevant considerations such as the public importance of the issues in the appeal (Smail v Burton [1975] VicRp 76; [1975] VR 776 at 779), the liberty of the subject (Hood Barrs v Heriot [1896] 2 QB 375 at 376), or where the only property of the appellant is the subject matter of the appeal (Australasian Compressed Fodder Co v Westwood (1903) IX Arg LR 113);
(e) the prospects of success on appeal is a relevant consideration and, despite the difficulty assessing that (de Groot v Nominal Defendant [2004] NSWCA 88 at [25]), it sometimes simply has to be undertaken (Hughes v Janrule Pty Ltd at [84]).
18. The considerations that the court may take into account have been identified by courts over time. I am conscious that, as Davis JA said in Natcraft Pty Ltd (deregistered) v Det Norske Veritas [2002] QCA 241 at [2], "[i]t is impossible to state comprehensively the factors that are relevant to assessment of an application [for security for costs]". As the NSW Court of Appeal noted in Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; (2004) 60 NSWLR 143 at 151; [33], though perhaps rather in relation to the notion of "special circumstances", frequently recurring circumstances or outcomes should not be developed into a "general rule" of practice and the Court must have regard to all relevant factors in each case.
19. As McHugh J said in PS Chellaram & Co v China Ocean Shipping Co [1991] HCA 36; (1991) 65 ALJR 642 at 643,
[t]o make or refuse to make an order for security for costs involves the exercise of a discretionary judgment. That means that the court exercising the discretion must weigh all the circumstances of the case. The weight to be given to any circumstance depends not only upon its own intrinsic persuasiveness but upon the impact of other circumstances which may have very great weight when only two or three circumstances have to be weighed may be of minor significance when many circumstances have to be weighed.
20. His Honour did then note, however, that certain factors, such as, in that case, the party bringing proceedings being resident out of the jurisdiction and having no assets in the jurisdiction, had been seen by the courts over time as a circumstance of great weight in determining whether an order for security should be made.
21. Nevertheless, I did identify in Benjamin v GB Franchising Australia Pty Ltd at 296; [48], some matters commonly regarded as relevant factors
include where the impecuniosity of the appellant has been caused by the misconduct of the respondent (Farrer v Lacey, Hartland & Co (1885) 28 Ch D 482 at 485), where the liberty of the subject is involved (Hood Barrs v Herior [1896] 2 QB 375), where the appeal is an abuse of process (Weldon v Maples, Tessdale & Company (1887) 20 QBD 331), where the appeal is manifestly groundless (Lall v 53-55 Hall Street Pty Ltd [[1978] 1 NSWLR 310]) (sic) where there has been great delay in prosecuting the appeal (PG Gabel Pty Ltd (in liq) v Katherine Enterprises Pty Ltd (1977) 29 FLR 108 at 113) and where the matter in issue raises a matter of public importance or a significant matter (Kennedy v McGeechan [1978] 1 NSWLR 314).
22. Similarly, in Natcraft Pty Ltd v Det Norske Veritas at [9], Jerrard JA reviewed "decided cases" which had "established matters which are relevant on such applications", including: