These contentions were advanced together with an argument that it was only if the s 123(1) proceedings were liable to be struck out, or vexatious, or brought for an improper purpose that security should be ordered against an impecunious natural person. This submission is unsound. It reintroduces by a back door the first of the construction arguments rejected above. The submission would permit a security order in relation to proceedings which ought to be dismissed either for failure to disclose or plead properly a cause of action, or as an abuse of process. In circumstances of that kind, there is no role for security orders to play, and to limit the role of security orders against impecunious natural persons to those circumstances is in reality to deny any operative jurisdiction to make them.
124 The second further submission of the claimant was that although the opponent had not behaved oppressively in bringing the application, the application should fail because the effect of an order for security would deprive her "of the right to have her action tried according to law". Some weight was placed on the fact that her right was a statutory one, but the argument would appear equally strong or weak whatever the source of her right. This too is another way of introducing the claimant's construction arguments by the back door. The argument in effect is that the discretion to make a security order against an impecunious natural person in the position of the claimant must be exercised in her favour if the order would prevent the proceedings from continuing. If that argument were sound, it could only be because s 69(3) was to be construed in that relatively narrow way. But the proposition that s 69(3) should be narrowed in any way was considered and rejected above.
125 The first of the principal points made by the opponent was that even if the claimant's case was regularly instituted, arguable and bona fide, she had failed to place before the primary judge any evidence indicating what her prospects of success were. This is correct. It is not, however, a factor which is decisive against her; it is simply that she cannot take advantage of any undemonstrated strength in her case which would raise it above the level of being arguable.
126 Secondly, the opponent submitted that there was no evidence that if security were ordered the litigation would come to an end. There is force in this contention. The claimant endeavoured to meet it by saying that it was common ground that she was "without any substantial means". The claimant then submitted: "It is accordingly clear that the effect of the order for security is to bring proceedings to an end." This does not follow. It was not directly proved that the security order would cause the proceedings to cease. The claimant declined to swear to any such proposition. There was evidence that the claimant either had engaged or was going to engage a solicitor, a barrister and an agricultural consultant. It would be contrary to daily experience of human nature in its sordid aspects if at least some of these persons were not to seek payment at least to some extent. It is, of course, possible that all these persons have agreed to act for nothing, or have agreed to act in return for a promise to be given the fruits of any favourable costs order if the claimant wins the case. But there is no evidence of either type of agreement. It may be inferred that some or all of the relevant professional persons expect to be paid, and that the claimant has arrangements in place to pay them. The only possible arrangements of that kind suggested by the evidence concern those suggested by her solicitation of donations from the 50 or 60 people present at a public meeting on 26 February 2001. The claimant gave no evidence revealing the outcome of that or any like appeal for funds. Distinct and cogent evidence of her failure to attract any financial support from others might well have demonstrated that in truth a security order will stop the proceedings; but there is no evidence of that type.
127 But even if the security order would cause the proceedings to cease, at least with the claimant as applicant, it is not impossible that a person capable of providing security could be substituted as applicant, or at least could have instituted similar proceedings within the relevant time. The fact that the claimant's claim might not proceed does not alter the fact that many other people could have instituted similar litigation of a kind not capable of being stopped by a security order. Further, if it is true that because of the claimant's financial position, she would probably not be able to provide the security or have the stay lifted, that indicates another relevant factor pointing against her: her inability to pay the opponent's costs if the proceedings failed and the Land and Environment Court made a costs order against her, and the consequential impact upon the opponent and those behind it if its application for security fails. That depends partly on its and their financial circumstances. The claimant accepted, initially, that she "couldn't say that the financial circumstances of the respondent are utterly irrelevant to the exercise of the discretion", and, a little later, that it was a relevant and important factor to weigh. Indeed the claimant accepted in argument that the opponent "does not seem itself to be wealthy". In turn the significance of that factor depends on the way the case is conducted. The claimant proposes to conduct proceedings which her counsel at the hearing of the appeal estimated could take three days using the services of a solicitor, a barrister and an agricultural consultant. She must have contemplated that the opponent would be likely to respond with equivalent forces. In any event it would be reasonable for it to do so. Proceedings so conducted suggest that at least the $12,500 which the primary judge ordered as security will be recoverable by the opponent against the claimant if a costs order is made against her.
128 Apart from the claimant's concession about the opponent's lack of wealth, the following material appears in the evidence. It is alleged by the claimant and admitted by the opponent that it is a corporation. Mr GWD Leviny's affidavit said that the opponent applied to the Maclean Shire Council for approval of an application to erect a rural worker's dwelling on the relevant land. He said he owned the land (a fact admitted by the legal representative for the opponent). He said that he is a farmer resident on the relevant land (a fact confirmed by his evidence that during the litigation he and his wife would have to fly or drive to Sydney). He said that he and his wife had indemnified the opponent in relation to its legal costs. He was described by the legal representative for the opponent as "the true respondent in these proceedings", capable of making admissions binding the respondent. Paragraphs 12, 15, 16, 17 and 18 of the Amended Points of Claim indicate scepticism on the claimant's part about the viability of the relevant land as a farm and it is common ground that that point is arguable.
129 In the related but somewhat different context of an application for security for the costs of an appeal, Priestley JA took into account the fact that if a large public company which was respondent to the appeal and applicant for security failed to obtain an order for security for costs in the amount of $15,000, that failure was not of great importance to it. He said this in the course of discussing a factor seen by him as relevant, namely, "the possible effects on the parties of the making or refusal of an order for security". His reasoning appears in Brown v Environment Protection Authority (NSWCA, unreported, 1 April 1993, Priestley JA, pages 4-5), a case considered by the parties in the course of argument. It follows that to obtain an order for security, or to fail to obtain it, might be of considerable significance to an applicant of limited wealth. An assessment of "possible effects" which are to take place, if at all, in the future, does not call for a demonstration that it is more likely than not that this will happen. Non-negligible possibilities must be looked for. It may be inferred that there is a real possibility that the "true respondent" in these proceedings, as the claimant's legal representative before the primary judge called him, is of limited wealth. He is a farmer, not of the Pitt Street variety. In particular, the claimant contends, and says the contention is not only arguable but has reasonable prospects of success, that the farm "would not be sufficient to maintain an average family in average seasons and circumstances". Indeed the claimant contends that no Council acting reasonably could have reached the contrary conclusion. The making of those allegations by the claimant's solicitor, and the contention advanced by counsel on behalf of the claimant to this Court that those allegations have reasonable prospects of success, constitute admissions made with the authority of the claimant: Evidence Act 1995 (NSW) s 87(1)(a)-(b). They are relevant: s 55(1). The admissions are that there is a real possibility that the farm is of questionable viability and hence a real possibility that its owner is of only limited wealth. There are very few farmers in this country of a non-Pitt Street kind who are natural persons to whom the loss of $12,500 would not be a serious matter. If the claimant loses the case and is ordered to pay the opponent's costs, and no security order has been made, the "true respondent" will have lost at least $12,500. To use Priestley JA's language, that demonstrates that if the order is not made one "possible effect" will be that there is a serious impact on the "true respondent". Since there is a real possibility that the "true respondent" is of only limited wealth, the "possible effect" on him of losing $12,500 is serious.
130 In the course of the argument various matters were raised as being potentially relevant to the discretion, but in the end it was common ground that they were either intrinsically irrelevant or insufficiently evidenced. One of these was the claimant's failure to object to the Development Application before the Council; another was the occurrence of earlier litigation between the parties. Further, though the controversy before this Court rightly stressed the wide standing afforded by s 123(1), despite some wavering, beyond that neither side placed significant emphasis on the issue of whether or not the litigation was "public interest" litigation. This was no doubt because of the imprecision and difficulty associated with that expression: Oshlack v Richmond River Council (1998) 193 CLR 72 at [30]-[31] and [71]-[97].
131 There is one factor relevant to security orders against plaintiffs making s 123(1) applications to which no attention was directed in argument, but which might be quite significant in other cases. The position of an impecunious plaintiff who lives next door to an illegal development which is injurious to the comfort and safety of that plaintiff is radically different from that of a plaintiff who lives hundreds of kilometres away and has no more than a desire that the law be enforced and that developments of that kind, whatever they are, cease. It might be highly relevant that an order that the first type of plaintiff provide security would frustrate the proceedings, but of very little relevance that such an order against the second type of plaintiff would. It would be relevant for the first type of plaintiff because the circumstances would correspond closely to those in which the general law rule about impecunious natural persons operated justly. Here the claimant is in neither category. She lives more than six kilometres from the proposed development. She told the public meeting held on 26 February 2001 that she had started the proceedings "to prevent the urbanisation of the Clarence River from Palmers Island to Yamba". Since neither party advanced any particular submission about the geographical relationship between her residence and the development, it may be taken that it is not a factor pointing decisively in either direction.
132 In summary, the factors against a security order are that the claimant's case is a case which is arguable, regular on its face, bona fide, properly instituted and brought by a person resident within the jurisdiction. The contentions that there were other factors against the order, particularly that it would stultify the proceedings and that the proceedings had reasonable prospects of success, were rejected above. The factors pointing in favour of a security order are that the claimant claims to be impecunious; that she has not shown that the order would stultify the proceedings; that the sum ordered by the primary judge is relatively low; that even though the sum is low, if the order were not made it could materially damage the "true respondent"; that the application was made promptly; and that it was not oppressive. The factors favouring the order outweigh those against it. That position would still hold even if it were assumed that the claimant's case is not merely arguable, but has reasonable prospects of success.