(c) Security for costs against impecunious litigants
63Thirdly, there is a familiar line of authority to the effect that poverty is no bar to a litigant, commonly associated with Cowell v Taylor (1885) 31 Ch D 34 at 38 per Bowen LJ. But that is far from being a universal rule. Some of the exceptions were collected by Heydon J in Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75 at [91] (citations omitted):
"Mere impecuniosity is not an absolute barrier to ordering security for costs against a natural person, although it is a factor against doing so. In particular, there are instances additional to those listed in r 42.21(1)(a)-(c) and (e) where it can be done. They include the vexatious conduct of litigation by a plaintiff who had failed to set aside an earlier judgment, instances where the plaintiff has dissipated assets and/or not paid previous costs orders (particularly costs orders in favour of the defendant), instances where the plaintiff brings a weak case to harass the defendant and instances where the plaintiff brings a case for the benefit of others, but not solely for that benefit. Hence the supposed 'general principle ... that poverty is no bar to a litigant' is a severely qualified one. So is the 'overriding principle of open access to justice' (or, more realistically, at least access to the courts)."
64Appeals are a further, not to mention long-standing, exception to the "severely qualified" principle which Heydon J was addressing. Indeed, that exception was stated by Bowen LJ in Cowell v Taylor in the sentence immediately following the statement as to poverty being no bar. The "special circumstances" in r 51.50 may be traced to Order LVIII rule 15 of the 1875 rules in force when the Judicature legislation commenced. The position before the Judicature legislation differed at common law and in equity. As Lush LJ put it in Harlock v Ashberry (1881) 19 Ch D 84 at 85-86:
"Before the Judicature Acts there appears to have been some difference between the practice in the Court of Chancery and in the Common Law Courts. In the Court of Chancery it was the practice to require security to a certain amount for the costs of an appeal to be given in every case. That was not the practice in the Courts of Common Law; there poverty alone was not considered a sufficient reason for requiring security to be given. ... The rule under the Judicature Act (rule 15 of Order LVIII) provides that such security for the costs of any appeal shall be given as may be directed under special circumstances by the Court of Appeal. This was intended to alter the whole practice both of the Court of Chancery and of the Courts of Common Law, and to leave it in the discretion of the Court whether security should be given under special circumstances."
65The change in practice may be seen in Wilson v Smith (1876) 2 Ch D 67, where it was submitted at 68 that "The suit was instituted under the old practice, and the Court will not readily deprive the Plaintiff of the right of appeal which he had under that practice". That submission was rejected, and the plaintiff was ordered to make a deposit of £50 pounds. And in Harlock v Ashberry, Miss Harlock herself was a woman of very advanced age, without visible means of support, who admitted that she was unable to pay the expense of her father's funeral. Nevertheless, she was ordered to provide £30 security for the costs of her appeal. Jessel MR said at 85:
"With respect to the alleged hardship on the Appellant it must not be forgotten that before the Judicature Acts every appellant in the Court of Chancery had to deposit the sum of £20."
66The position in the United Kingdom has changed following the conclusion in the Bowman report in 1997 that the discretion to order security in "special circumstances" in an appeal operated unfairly against appellants of limited means: see Zuckerman on Civil Procedure, 2nd ed (2006), Sweet & Maxwell at 869-870 and Sir Jeffery Bowman, Review of the Court of Appeal (Civil Division): Report to the Lord Chancellor (1997) Lord Chancellor's Department at 120-122, recommendation 134. At least in part, that change was a consequence of a perception that the right of access to the courts secured by Art 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms might be contravened: see the decisions considered by Lord Hope in Ford v Labrador (Gibraltar) [2003] UKPC 41; [2003] 1 WLR 2082 at [17]-[20]. Even so, the English courts reserve the right to order security for an appeal where security would stifle the appeal in exceptional cases where "the party concerned can be shown to be regularly flouting proper court procedures or otherwise to be demonstrating a want of good faith" and the party has "no real prospect of succeeding": Ali v Hudson [2003] EWCA Civ 1793 at [40]. And more recently there has been a recognition that:
"[D]efendants too have entitlements under article 6, including a right not to have their access to a court rendered prohibitive by the prospect of irrecoverable costs or, as demonstrated by the judgment in Tolstoy, an entitlement to have claimants' access limited by relevant and proportionate conditions": Al-Koronky v Time-Life Entertainment Group Ltd [2006] EWCA Civ 1123 at [32], citing Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442.
67In New South Wales prior to 1972, s 81 of the Equity Act 1901 required the giving of a bond or security when an appeal was commenced, resembling the practice in Chancery in England before 1875: see W Parker, The Practice in Equity (1930) Law Book Company at 110-111. The requirement that there be "special circumstances" was introduced with the Supreme Court Act 1970. Thereafter, the position in New South Wales has not followed English developments after 1999, although access to appellate justice is more open than it was in Chancery before 1875 and in the Court of Appeal thereafter. An impecunious appellant with a bona fide and reasonably arguable appeal should ordinarily not be required to provide security: Neale v Ancher Mortlock and Woolley Pty Ltd [2013] NSWCA 209 at [25]; Preston v Harbour Pacific Underwriting Management Pty Ltd at [17]-[18]. Impecuniosity, without more, is usually insufficient for an order to provide security: Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; (2004) 60 NSWLR 143 (Beazley, Santow and Ipp JJA); Porter v Gordian Runoff Ltd [2004] NSWCA 171 (Bryson JA, Sheller and Giles JJA agreeing). In Transglobal it was concluded that there was no general rule of practice whereby security for the costs of an appeal would be ordered where impecuniosity was shown. The Court emphasised that it was wrong to translate the principles and matters emerging from a series of decisions into a general rule of practice; in each case, the discretion was to be exercised having regard to the circumstances of the particular case (at [34]).
68Nevertheless, considerations grounded in access to justice are attenuated where there has already been a hearing and reasons for decision. As this Court said in Lall v 53-55 Hall Street Pty Ltd [1978] 1 NSWLR 310 at 313:
"The provision of a power to order security for costs under a rule such as Pt. 51, r.11 pays heed to the different considerations which apply to an appeal compared with proceedings at first instance. In the former the rights between the parties have been adjudicated upon. Moreover the reasons for judgment are readily available to the appellate court. At first instance, the rights between the parties have yet to be adjudicated upon, and their merits are not open to reliable preview."
69Plainly enough, those considerations are diminished still more where, as here, the Legislature has conferred largely exclusive jurisdiction upon the Tribunal, and made no provision for appeals from its decisions save on a question of law, which right has already been availed of.
70The primary judge cited Lall v 53-55 Hall Street Pty Ltd. It is a very similar case to that presently before the Court. Mrs Lall had been a tenant of premises owned by the respondent. The respondent had obtained an order for possession from a court of Petty Sessions. Mrs Lall had commenced proceedings in the District Court and in the Supreme Court challenging that order. One was dismissed when she failed to appear, and she withdrew the other. She then commenced proceedings which were dismissed by Waddell J, from which dismissal she appealed. She was impecunious. The Court said that she filed many written statements, most of which were abusive. The Court formed the view that the appeal was hopeless, and ordered security to be provided of $1,000.
71The joint judgment of the Court addressed the jurisdiction to order security for costs where proceedings had been maintained by an unrepresented litigant at 314:
"The courts have traditionally assisted the litigant in person. It is important that he is not denied the right to appear in person and to present his case without interference on merely technical grounds. Courts always have been alert to the possibility that under irrelevancy there may be merit. Nothing now said is intended to suggest it should be otherwise. However, the point is reached in the type of case, to which we have referred, where the pursuit of the rights of the litigant in person can become the instrument of grave injustice to his opponent. It must be the concern of the courts not to overlook the injustice being caused in this way to such litigants. Indeed impecuniosity and stubbornness in the supposed exercise of the liberties recognized by our system of law, may be exploited consciously or unconsciously to secure a concession from an opponent on an unmeritorious claim or to cause him financial detriment or even ruin. The public importance of finality of litigation has long been recognized. Finality in a practical sense is equally as important as finality in a technical sense. In our view, justice to the opponent, in the special class of case to which we have referred, calls for an order which will operate so that an appellant, who has had the merits of his case determined at first instance, cannot enjoy the luxury of an appeal at the expense of his opponent. An appeal of the type and in the type of circumstances referred to may provide a 'special circumstance' referred to in Pt. 51, r.11 and a ground to exercise the discretion to make an order for security. The present is such a case."
72There continue to be cases where it is appropriate to order security even though it will probably stifle an impecunious natural person's right of appeal. Most recently, Hoeben JA applied Lall in Starr-Diamond v Diamond [2013] NSWCA 7. His Honour said (at [30]-[31] and [35]):
"Given the difficult financial circumstances of the first respondent, it is intrinsically unfair that she should be exposed to the real prospect of a lengthy appeal in circumstances where if (as is likely) she is successful, she will be unable to recover her costs. I consider the prospects of success of the appellant to be poor. The issues before his Honour were relatively straightforward in the sense that having made factual findings and findings as to credit, he had to decide whether and to what extent any adjustment should take place in relation to the remaining assets held by the parties. I can see no obvious error in his Honour's statement of the law or in his Honour's application of it. Certainly, no such error has been identified in any ground of appeal. Insofar as his Honour's factual findings are concerned, they appear to be based on documentary evidence or on a credit based assessment of evidence which has not been properly challenged in any of the grounds of appeal.
The only significant argument available to the appellant on the motion is that the making of a security for costs order will almost certainly prevent her continuing with her appeal. On the other side of the ledger, the appeal has little prospects of success, the assets the subject of the appeal are modest in the extreme and are likely to be subsumed by legal costs should the appeal proceed. Finally, the first respondent's parlous financial position will render it difficult for her to defend the appeal and she will have no prospect of recovering any costs against the appellant. She will, in effect, lose the benefit of the orders made by the trial judge even if she is successful.
...
It follows that I am satisfied that there are special circumstances in the present case for an order for security for costs to be made in respect of the appeal. The appellant's current financial position has to be taken into account along with the extensive factual issues which she seeks to re-litigate in the appeal. The first respondent has already been put to considerable expense in defending proceedings brought by the appellant at first instance, in circumstances where the appellant comprehensively failed to make her case. If the appeal is allowed to proceed without a security for costs order being made, the first respondent will now be exposed to a lengthy and expensive appeal in circumstances where if she is successful, she has no prospect of recovering her costs."
73The proceedings instituted in this Court by Mr Partington are not an appeal but an application for judicial review of the decisions of the District Court and the Tribunal. Nonetheless the reasoning in the cases to which we have referred is applicable to the present case. Mr Partington has had not one but two opportunities to put his case in the tribunal designated by Parliament as the specialist and largely exclusive body for disputes as to residential tenancies. He has exercised his right to a statutory appeal to the District Court, although he elected not to pursue the appeal once his attempt to postpone the proceedings did not succeed. On the materials before this Court he has demonstrated no arguable basis for the grant of relief under s 69 of the Supreme Court Act.
74Although the proceedings in this Court invoke its original jurisdiction, Mr Partington seeks to deprive Pacific Link of the success it enjoys from the decisions of the Tribunal and the District Court. The strength of his challenge to those decisions can be assessed in light of the reasons given for those decisions. The present facts fall comfortably within the principles underlying cases in Australia in which an impecunious appellant may be ordered to provide security. Indeed, even if this decision fell to be determined in accordance with the current position in England, we are of the view that it would fall within the exceptional circumstances addressed in Ali v Hudson above.
75What follows from the foregoing is this. Ward JA was led into error in proceeding on the basis that r 51.50 applied. However, it was an error on which nothing turned. Her Honour required there to be special circumstances, in accordance with that rule. That did not operate to the detriment of Mr Partington, or impair the principled exercise of discretion by her Honour. For it was open for security to be ordered in this Court's inherent jurisdiction, on the conventional basis that in substance Mr Partington was a litigant who had already enjoyed a hearing on the merits at first instance and was dissatisfied with the result. True it is that in the absence of any statutory appeal, Mr Partington was invoking this Court's supervisory jurisdiction, rather than its appellate jurisdiction. However, that fact does not make the principles on which security is granted any less onerous to the respondent.