Myriam CAUVIN v PHILIP MORRIS LIMITED - [2003] NSWSC 1225 - NSWSC 2003 case summary — Zoe

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Myriam CAUVIN v PHILIP MORRIS LIMITED

[2003] NSWSC 1225

Supreme Court of NSW|2003-12-19|Before: Bell J

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Court

Supreme Court of NSW

Decision date

2003-12-19

Before

Bell J

Source

Original judgment source is linked above.

Judgment (42 paragraphs)

[1]

CITATION : Myriam CAUVIN v PHILIP MORRIS LIMITED (ACN 004 694 428) and PHILIP MORRIS (AUSTRALIA) LIMITED (ACN 004 316 901) & Ors [2003] NSWSC 1225 HEARING DATE(S) : 7/11/03 JUDGMENT DATE : 19 December 2003

[2]

JUDGMENT OF : Bell J at 1 DECISION : Dismiss each of the first and second defendants', third and fourth defendants' and fifth and sixth defendants' motions claiming security for costs; The defendants are to pay the plaintiff's costs of the motion

[3]

Environmental Planning and Assessment Act 1979 Federal Court Act 1976 (Cth) LEGISLATION CITED : Land and Environment Court Act 1979 Legal Profession Act 1987 Supreme Court Rules 1970 Bray v F Hoffmann-La Roche Ltd (2003) 200 ALR 607 Bryan E Fencott and Associates v Eretta Pty Ltd (1987) 16 FCR 497 Cowell v Taylor (1885) 31 Ch D 34 Haller v Worman (1861) 3 LT 741 CASES CITED : Melville v Craig Nowlan & Associates Pty Ltd [2002] NSWCA 32; 54 NSWLR 82 Neale v Lady Gordon Lennox [1902] 1 KB 838 Rajski v Computer Manufacturer & Design Pty Ltd [1983] 2 NSWLR 122 Sykes v Sykes (1989) LR 4 CP 645 at 647 Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [2000] HCA 11; 200 CLR 591 Yonge v Toynbee [1910] 1 KB 215 Plaintiff - MYRIAM CAUVIN 1st Defendant - PHILIP MORRIS LIMITED (ACN 004694428) 2nd Defendant - PHILIP MORRIS (AUSTRALIA) LIMITED (ACN 004 316 901) PARTIES : 3rd Defendant - BRITISH AMERICAN TOBACCO AUSTRALIA SERVICES LIMITED - (FORMERLY KNOWN AS WD & HO WILLS (AUST) LTD) 4th Defendant - WD & HO WILLS HOLDINGS LIMITED (ACN 003 763 291 5th Defendant - BRITISH AMERICAN TOBACCO AUSTRALASIA LIMITED (FORMERLY KNOWN, AS ROTHMANS HOLDINGS LTD) 6th Defendant - BRITISH AMERICAN TOBACCO AUSTRALIA LTD (FORMERLY KNOWN AS ROTHMANS OF PALL MALL (AUST) LTD) FILE NUMBER(S) : SC 11301/02 Plaintiff: N. Francey 1st & 2nd Def: Sackar QC/ S. O'Meara COUNSEL : 3rd & 4th Def: D. Beach SC / M. Wheelahan 5th & 6th Def: I. Jackman / S. Goodman

[13]

· The proceeding has been regularly commenced, · the proceeding is not vexatious, · the proceeding is not an abuse of the process of the Court, · the proceeding is not doomed to failure. 10 Part 53 r 2 of the Supreme Court Rules 1970 (the SCR) provides: "2(1) Where, in any proceedings, it appears to the Court on the application of a defendant - (a) that a plaintiff is ordinarily resident outside the State; (b) that a plaintiff is suing, not for his own benefit, but for the benefit of some other person and there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if ordered to do so; (c) subject to subrule (2), that the address of a plaintiff is not stated or is mis-stated in his originating process; (d) that a plaintiff has changed his address after the commencement of the proceedings with a view to avoiding the consequences of the proceedings; or (e) that there is reason to believe that a plaintiff being a body corporate will be unable to pay the costs of the defendant if ordered to do so, the Court may order that plaintiff to give such security as the Court thinks fit for the costs of the defendant of an incidental to the proceedings and that the proceedings stayed until the security is given. (2) The Court shall not order a plaintiff to give security by reason only of subrule (1)(c) if it appears to the Court that the failure to state his address or the misstatement of his address was made without intention to deceive. 11 It is not submitted that the defendants' applications for security orders come within the provisions of the SCR. I am invited to make the orders sought in the exercise of the Court's inherent power to regulate its own proceedings: Rajski v Computer Manufacturer & Design Pty Ltd [1983] 2 NSWLR 122. In order to understand the basis of the defendants' applications it is necessary to describe the nature of the claim that the plaintiff brings in some detail. 12 By the ASC the plaintiff pleads causes of action under Pts IVA and V of the Trade Practices Act 1974 (the TPA) and the equivalent provisions of the Fair Trading Acts of each State and Territory (the FTA). She alleges that the defendants conspired to engage in misleading or deceptive conduct, or in conduct that was likely to mislead or deceive, contrary to s 52 of the TPA (and the FTA equivalent provisions). In the alternative she contends that the defendants' conduct was unconscionable contrary to the provisions of s 51AA or 51AB of the TPA (and the equivalent provisions of the FTA). Her claim in unconscionability is dependent upon the same facts and circumstances as are pleaded in support of the claim brought under s 52 of the TPA.

[14]

13 Generally, the plaintiff pleads a case that the defendants agreed to engage in conduct to promote the benefits and pleasures of smoking and to deny or minimise the risks associated with smoking, including the likelihood of contracting smoking-related disease, and the risk of becoming addicted to nicotine. The conduct that the plaintiff pleads the defendants engaged in comprised the following elements: (1) Advertising, marketing and promoting cigarettes as enhancing the life and enjoyment of consumers, (2) promoting certain brands of cigarettes, described as menthol, mild, light or low tar (the 'less hazardous' cigarettes) representing them to be healthier than other cigarettes or safer to smoke than other cigarettes, (3) making public statements of various including denying the existence of reliable evidence concerning smoking and risks to health and of the effect of nicotine, (4) lobbying, including by making representations to the Federal and State Governments to desist from taking actions likely to be effective in reducing smoking related disease, (5) intentionally concealing knowledge of the association between smoking and nicotine addiction and smoking and disease, and (6) conduct relating to the uptake of smoking. 14 It is the plaintiff's case that conduct falling within these categories was misleading or deceptive, or likely to mislead or deceive, in that: (i) Smoking cigarettes does not enhance life and the enjoyment of life of consumers of cigarettes but rather it detracts from life and the enjoyment of it, (ii) cigarettes marketed as 'less hazardous' cigarettes are not healthy or healthier than other cigarettes nor safe to smoke or safer to smoke than other cigarettes, (iii) reliable evidence existed making a causal link between cigarette smoking and increased risk to health and between nicotine and addiction, (iv) the defendants did not have reasonable grounds for making the recommendations or representations to governments in connection with tobacco control measures, (v) the defendants were under an obligation to disclose their knowledge of the association between cigarette smoking and addiction to nicotine and cigarette smoking and the risk of contracting smoking related disease, (vi) the defendants should not have taken steps to maximum the occasions on which, and the likelihood that, persons would be induced to commence or continue or fail to quit cigarette smoking. 15 In the ASC the plaintiff pleaded her case by reference to a period commencing in January 1960. By the 2ASC she proposes to confine her claim to the period from 1 October 1974. The latter being the date on which the TPA commenced. 16 The claim that the plaintiff makes is one of considerable breadth. She pleads that she and "other persons" have smoked, or may smoke, cigarettes and as a consequence be exposed to the likelihood of contracting smoking-related disease (paragraph 2.13 of the ASC and the 2ASC). As a consequence of smoking the cigarettes she and "other persons" are said to have inhaled and/or ingested nicotine or that they may inhale and/or ingest nicotine (paragraph 2.14 of the ASC and of the 2ASC). As a further consequence of the inhalation or ingestion of nicotine the plaintiff pleads that she and "other persons" have been, or may be, subjected to the effect of nicotine (paragraph 2.15 ASC and paragraph 2.15 2ASC). 17 The plaintiff claims that she and "other persons" were influenced by the defendants' conduct directly in that they saw and/or heard and/or were aware of the defendants' conduct and/or indirectly in that they were influenced by others who saw and/or heard and/or were aware of the defendants' conduct and/or were influenced by others who were so influenced (paragraph 2.17 of the ASC and of the 2ASC). The plaintiff contends that the defendants' conduct had the effect of causing and/or contributing to her and "other persons" commencing to smoke, continuing to smoke, recommencing to smoke and/or not ceasing or quitting to smoke (paragraph 2.21 of the ASC and of the 2ASC). In addition, the plaintiff pleads that by reason of the influence of the defendants' conduct members of the general public, including herself and "other persons", had an inaccurate or distorted belief, impression or understanding of the relationship between smoking and disease, the likelihood of contracting smoking related disease, the relationship between smoking and addiction, and the effect of nicotine (paragraph 2.22 of the ASC and of the 2ASC). 18 As a result of the defendants' conduct the plaintiff pleads that a greater number of persons, including herself and "other persons", commenced smoking cigarettes and/or continued to smoke cigarettes and/or failed to quit smoking cigarettes than otherwise would be the case (paragraph 2.23(g) of the ASC and paragraph 2.23(d) of the 2ASC). She claims that she and "other persons" have suffered or are likely to suffer loss and damage by reason of the defendants' conduct (paragraph 2.24 of the ASC and of the 2ASC).

[20]

26 The Philip Morris defendants filed a motion on 11 July 2002 claiming orders including, in prayer 2, a declaration that the plaintiff does not have the standing to bring a claim on behalf of "other persons". As I understand it the Wills defendants also challenge the ability of the plaintiff to bring such a claim. The Philip Morris defendants' motion together with motions filed by the Wills defendants and the Rothmans defendants were listed for hearing on 31 March 2003. On that occasion the parties were agreed that the convenient course was to address only those issues raised by prayer 1 of the Phillip Morris defendants' motion (the pleading challenge) and the like challenges brought by the other defendants. The challenge articulated in prayer 2 of the Phillip Morris defendants' motion was stood over together with the other defendants' motions. Any issue as to the plaintiff's ability to bring proceedings under the provisions of the TPA, not being a representative proceeding, claiming compensation in respect of an unparticularised group of "other persons" has not been determined. The present application is to be approached upon the basis that the plaintiff's claim is an arguable one. 27 The defendants acknowledge that to the extent that the plaintiff brings a claim for personal injuries, whether at common law or pursuant to the provisions of the TPA, they cannot be heard to contend that a security order should be made. However, in their submission the structure of the present proceeding is such as to overwhelm the plaintiff's personal claim. I am invited to infer from statements made by Mr Francey during the hearing of the earlier motion that the plaintiff has had no choice in the way that the claim has been framed. In this respect my attention was drawn to the following passages the transcript: "Francey: In this case we are proceeding from this mammoth, giant, joint plan that Spender J talked about (a reference to the judgment in Philip Morris (Australia) Ltd v Nixon [2000]. Which in fact we have uncovered and pleaded, and we are progressing along the way to advancing the case. (T 153) … That is probably a convenient time for me to deal with that aspect of the matter before coming to the way in which we've tried to structure the claim, because another factor we would want your Honour to take into account in deciding what level of specificity is required at this point as opposed to an acceptable degree of generality is to take into account what happens if this claim cannot go ahead. I can assure your Honour that this is probably the last opportunity for this to be dealt with in any comprehensive way. You might have a few individual cases like in the McCabe (a reference to the McCabe v British American Tobacco Australia Services Ltd [2002] VSC 73; British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197) case last year with document destruction. But my attitude was when Maurice May came to see me, if I'm going to be doing this for nothing or on spec I'm not going to be doing it for one person. It's just not worth my time. If you want to expose the entirety of the conduct and try to achieve comprehensive relief and do what Myriam Cauvin wants to do is to stop the people ending up in the same situation that she ended up in, she doesn't even want full compensation. Mr Sher generously put it back at $500,000 or 1 m. Now, if that is an offer, I will take instructions and she will probably take it. The fact is that you will see from her affidavit that what she said is she wants to be independent of the disability pension, she wants to have her medical expenses and future medicals covered, she wants to provide for her son and she wants to have centres set up to help other people who are addicted to help them become un-addicted for a variety of reasons … " (T 161-162). … So, for example, the Court could constitute these proceedings as representative proceedings under the Federal Court Act , since we comply with the requirements of the broad canvas and the giant, joint plan, in which case under the Trade Practices Act the Court could make orders on behalf of any person, if we worked out an acceptable definition of group members, but that is a procedural thing far down the track if that's the way the case got conducted, and the Court was interested in providing comprehensive relief for everyone, given that the statement of claim is framed in a way that eliminates time limit problems for everyone. So anybody who has a smoking related disease, however long ago, is eligible to make a claim. If they get a disease in the future, they can make a claim. The Court can order that a fund be established to make provision for people who suffer harm in the future, and the Court can make orders that remedy the effects of the conduct and prevent or reduce harm. That is the scope of result that the Court is able to achieve, if we get there, and it has the benefit, as I say, of time limits being overcome and people not having to commence their own proceedings, but there has to be some manageable way of conducting the litigation and we don't know who else wants to make claims. That is what we are trying to get around, and that's why the pleading has been framed in the way that it is, because it has to be at a level of generality that gives all these other people an opportunity to participate. So we can't deal with Myriam Cauvin bought a packet of cigarettes off Y company at X shop reading such and such a sign, because it defeats the whole purpose of the exercise and wastes my time, so that's why we've done it the way we've done it (T 176-177). We have sought to invoke to provide the broadest possible scope of liability. (T 205). Is our statement of claim seriously to be struck out with potentially millions of people able to be compensated or harm prevented because we replicate a section from the Act (T 207). We are prepared to meet any language problem in the document and we have gone through their objections, we will go through every argument that your Honour upholds and ensure that this statement of claim is as good as it can possibly be, as long as it is understood that what it is directed to is a particular goal. (T 130). So we took those into account when we amended the statement of claim. That is reflected in both the first and second defendants' written submissions and revised attachment "A", and Mr Beach's revised schedules, because we have taken into account their criticisms. But, your Honour, we are not going to amend the statement of claim to delete the reference to 'others' and we are not going to amend the statement of claim to delete references to way in which the defendants and those represented by them conspired together and engaged in particular forms of conduct or as part of a giant plan (T 206-207). So that raises problems in terms of quantification of harm and the effect of the conduct. The extent to which harm from smoking is attributable to the conduct pleaded, that's going to be a problem for us. We're going to have to work out how to deal with that. We've got to be able to establish that at least certain people have suffered harm. Your Honour, then what we say is - say we produce 1,000 people from various States and Territories, all of whom are able to demonstrate harm to the same extent, for example, that Ms Cauvin can. Then the Court is faced with this situation: do you give those 1,000 people $1m or $ 2m each or whatever it is? Or do you say, 'hold on, if there is 1,000 people like that and there's 1.6 million who are going to get smoking-related disease, maybe some funds should be set up with a scheme that provides compensation for everyone, because it's going to be fairer and more equitable. … Ms Cauvin, as I said, at the moment all she wants is to be off the pension, have her medical expenses covered, to provide for her son and prevent harm to other people so they don't end up in the same situation as her. She's not going to make too great an inroad. Other people may want to make claims, but it seems to me that if that is the level of potential claimants, it's pointless of them all tripping along to the Supreme Court. (T 186) 28 In the defendants' submission the plaintiff is bound by the statements and concessions made by Mr Francey during the course of the hearing; Haller v Worman (1861) 3 LT 741, Yonge v Toynbee [1910] 1 KB 215 at 233-234 and Neale v Lady Gordon Lennox [1902] 1 KB 838 at 843.

[22]

31 The defendants submitted that it is relevant to take into account that the litigation brought by the plaintiff raises issues concerning their conduct over nearly thirty years. The scope of interlocutory proceedings, including discovery, is likely to be great. It is reasonable to consider that legal costs of a most substantial order will be incurred by each of them in defence of the proceedings. Mr Francey observed that the plaintiff has access to a very large number of documents said to bear on the issues raised by her pleading. In this respect he took me the affidavits of Professor Chapman. Mr Francey submitted that it was conceivable that the case could be run without the plaintiff requiring discovery from the defendants. This aspect of the future conduct of the proceedings was not further developed. It is a stance that was at odds with the stance adopted on the earlier occasion. During submissions on the pleading challenge on a number of occasions reference was made to the plaintiff's ability to furnish fuller particulars of her claim after discovery: "Mr Francey: One needs to accept that there is going to be interlocutory processes and case management, and orders for statements and witnesses, or expert witnesses, or whatever else is involved, plus discovery and the interrogatories and the like. Say, for example, are the pleadings, once the defences are on, of a kind that will enable the categories of documents to be defined that the defendant should be required to discovery? That is something we would have to undertake to present, and the Court would probably need to approve it given the scale of discovery that is involved and things like that" (T 220-221). 32 It was accepted by all parties that a consideration of the merits of a plaintiff's claim is a relevant factor when determining whether to make a security order. In this respect Mr Francey took me to the affidavits of Professor Chapman, SC1 and SC2. In his submission having regard to this material and in light of the failure of the defendants to adduce evidence that it was their intention to defend the claims made against them I should determine the matter upon an assessment that it is highly likely that the plaintiff will be able to establish the contraventions of the TPA (and the FTA equivalent provisions) that she pleads and that some remedial injunctive relief will be ordered by the Court. 33 Mr Francey's submission there was no evidence that the claim was to be defended did not impress me as one of substance. The defendants enjoyed a substantial measure of success on their applications to strike out parts of the ASC. The present position is that the plaintiff's motion for leave to deliver the 2ASC is yet to be heard and, thus, no defence has been filed. Mr Sackar informed me that the proceedings would be defended and that the allegations of conspiracy are in issue. I deal with the present application upon the basis that the proceedings will be defended and that they will be lengthy and involve substantial cost. In this respect I do not attach weight to the suggestion that I have noted above that it was "conceivable" that the litigation might be conducted without the plaintiff obtaining discovery.

[26]

37 In supplementary written submissions the Philip Morris defendants contended: "Australian courts have recognised that the 'general rule' that 'poverty is no bar to a litigant' does not prohibit the Court ordering an impecunious, natural person to provide security for costs: see, for example, Cunningham v Olliver (unreported) Federal Court of Australia, Burchett J, 21 November 1994 at [6]; Woodhouse v McPhee (1997) 80 FCR 529 at 531; Ryan v Great Lakes Council (1998) 154 ALR 584 per Wilcox J. More recently in Bray v F Hoffmann-La Roche Ltd (2003) 200 ALR 607 (a case concerning whether security for costs ought be ordered in a representative proceeding under Pt IVA of the Federal Court Act ), Finkelstein J was of the view that (at [252]): '[I]f there is still a rule that an order for security should not be made against an impecunious natural person (for a criticism of the absoluteness of this rule see Melville v Craig Nowlan & Associates (2002) 54 NSWLR 82), the rule may have little application to many class actions.' In Melville v Craig Nowlan & Associates (2002) 54 NSWLR 82 ( Melville ), the Court of Appeal unanimously held that the plaintiff's impecuniosity is only a factor to be considered by the Court in the exercise of its discretion to order security for costs against an impecunious natural person: see also Carriage v Stockland (Constructors) Pty Ltd (No. 2) [2002] NSWLEC 121 per Talbot J; Carriage v Stockland (Constructors) Pty Ltd (No. 2) [2002] NSWLEC 217 per Pain J." 38 While the cases upon which the defendants rely are concerned with the exercise of the discretion to order security pursuant to the provisions of the Federal Court Act 1976 (Cth) or the Land and Environment Court Act 1979 (NSW) in their submission the reasoning of these decisions has application to the circumstances of this case. In particular it is submitted that it may be appropriate to order an impecunious plaintiff to provide security for costs where she prosecutes proceedings not only on her own behalf but on behalf of a vast number of "other persons". 39 Principal reliance was placed by the defendants on the judgment of Heydon JA (with whom Young CJ in Eq agreed) in Melville. In this respect Mr Sackar drew attention to his Honour's remarks at [102]: 'There is, however, one significant difference between the type of litigation to which the traditional rules as to security for costs applied, including the rule to which the claimant appeals, and s 123(1) litigation. Leaving aside instances of statutory standing, leaving aside the role of the Attorney-General (acting either alone or on the relation of another), and leaving aside the capacity of citizens to utilise the prerogative writs to control government action, most civil litigation was traditionally conducted by one person or a small group of persons seeking to vindicate rights enforceable only by that person or persons. If D broke a contract to which P was the only other party, in general only P could enforce it. If D committed a tort against P and no-one else, in general only P could complain. Hence if P were impecunious, the effect of ordering a stay until security for D's costs was provided was to prevent D's breach of the law from being remedied at all. In its practical operation, the rule against orders that impecunious natural persons provide security for costs overlaps with the disinclination of courts, in their discretion, to make orders the effect of which would be to frustrate the particular litigation. So far as D's conduct extended beyond actionable damage to P alone and damaged the public, any plaintiff had to comply with the criteria for standing stated in Boyce v Paddington Borough Council [1903] 1 Ch 109, which, even as modified by such High Court cases as Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493, were not easy to satisfy. But provisions permitting 'any person' to commence litigation have abolished standing requirements. Like the equivalent words in s 80(1) of the Trade Practices Act 1974 (Cth) ( Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591), the words 'any person' in s 123(1) are not to be read as meaning anything different from what they say: Sydney City Council v Building Owners and Managers Association of Australia Ltd (1985) 2 NSWLR 383 at 386-387. It is true that before the enactment of s 80 in 1974 and s 123 in 1979, there were numerous statutes granting standing to affected persons or to any person. But these statutes tended to operate in specific and limited areas. They did not apply in fields as extensive as the fields of human activity to which the Trade Practices Act (Cth) and the Environmental Planning and Assessment Act apply. They did not alter the general character of civil litigation as being litigation between one or a small number of injured plaintiffs and one or a small number of defendants. Personal right and remedy were generally closely linked. If a plaintiff was debarred by a stay until provision of security from proceeding with litigation, the wrong committed or threatened by the defendant was incapable of remedy. That is not true where standing is wide and unrelated to a legal wrong specifically injuring the particular plaintiff."

[33]

His Honour went on to refer to the judgment of Bowen LJ in Cowell v Taylor (1885) 31 Ch D 34 at 38 and then to say at [101]: "By 'basic rule' Sir Robert Megarry V-C meant, and by 'general rule' Bowen LJ meant, that the rule is a strict one, though it is subject to specific exceptions (eg, in relation to appeals, and nominal plaintiffs). They did not mean that generally insolvent plaintiffs will not be ordered to provide security, unless in the specific circumstances of a particular case a court thinks it just to make the order. As Baggallay LJ said in Cowell v Taylor (at 37): 'The rule is that anyone may sue without giving security, in any but excepted cases'. While it is possible that the 'rule' is less absolute than these formulations would suggest, and while there may be room for debate about the true nature of the rule ( Morris v Hanley [2000] NSWSC 957 at [11] - [21]), whatever the scope of the rule, the claimant contends that it has not been abolished by s 69(3). In consideration that submission, it is convenient to assume that the rule is an absolute one, and that it is a rule of fundamental importance." 47 Heydon JA concluded that the claimant's arguments that words of s 69(3) should be read down (so as to incorporate the general rule) were to be rejected. In this respect he said at [110]: "While the general law rule is of a kind which would call for clear language if it were to be abolished, it is hard to see how language much clearer than that used in s 69(3) could have been employed." 48 There has been no statutory change to the "general rule" with respect to proceedings in this Court. Heydon JA was content to deal with the submissions in Melville upon an assumption that the "general rule", to which Bowen LJ referred in Cowell v Taylor, was a strict one, though subject to specific exceptions. His Honour noted that it was possible that the "rule" was less absolute than the formulations in Cowell v Taylor would suggest. In this respect he cited the judgment of Young J in Morris v Hanley. Young J in concurring with the reasons of Heydon JA in Melville added some comments of his own adhering to the views that he had expressed in Morris v Hanley. The decision in that case was reversed in the Court of Appeal, but not for reasons that called into question his Honour's statement of the general principles.

[34]

49 In Morris v Hanley Young J considered the nature of this Court's inherent power to make an order for security for costs in a case involving a natural litigant. After reviewing the history, his Honour said: "[18] The fundamental reason that the so-called 'poverty rule' is really just one of the factors that a Court looks at to consider the basic question of whether it would be vexatious to allow the proceedings to continue without security. It is seldom correct to limit the Court's jurisdiction and discretion under such a general proposition by honing down too finely a sub-rule or guideline. [19] The practical reason is that the suggested restatement is probably too restricted because it is directed too much to the circumstances of this particular case. The situations that cause the Court particular concern are cases where there is a litigant in person who is alleged by the defendant to have an obsession against the defendant and who brings very expensive proceedings against the defendant with little intervention by lawyers. One such case was Rajski v Computer Manufacture and Design Pty Ltd [1982] 2 NSWLR 443 and on appeal [1983] 2 NSWLR 122. … … [21] It is quite clear that when one is considering the general matter of vexatious conduct warranting security for costs under the inherent power, one of the matters that the Court takes into account is the question of the non-availability of funds on the part of the plaintiff. … … [23] The leading cases show that the factors a Court must take into account when considering the general question as to whether the inherent power should be exercised to order security for costs include: (a) Whether the plaintiff's claim is bona fide and not a sham; (b) whether the plaintiff has a reasonably good prospect of obtaining the orders he or she seeks; (c) whether an order for security would bring the proceedings to an end; (d) whether the plaintiff has a want of assets and how this was brought about; (e) whether there is anyone standing behind the plaintiff who might benefit from the action but who is unwilling to contribute to the risk involved in the action; and (f) the question of delay. [24] This list is a non-exhaustive list of guidelines and one must not loose sight of the basic question as to whether the action is harassing and vexatious. For a more exhaustive list see Colbran on Security for Costs (Longman Profession Melbourne, 1992) ch 14." 50 The plaintiff's claim is a bona fide one and not a sham.