here - Gordon & Jackson

d. Subject to paragraph (2) the address of the plaintiff is not stated
or is not stated correctly in the plaintiff’s originating process;
e. The plaintiff has changed his, her or its address after the
commencement of the proceeding in order to avoid the
consequences of the proceeding;
f. Under any Act where the Court may require security for costs.
4. Once one of these is satisfied there are several threshold questions to be
addressed in any application for security for costs, namely:
a. Plaintiff’s prospects of success.
b. Defendant’s prospects of success
c. Whether the plaintiff’s claim is bona fide.
d. Admissions on the pleadings and payments in.
e. Application not being made oppressively.
f. Any nexus between the plaintiff’s impecuniosity and the defendant’s
conduct. 3
g. Whether making such an Order will stultify the litigation 4 .
h. Public policy considerations.
i. Role and resources of those behind the litigation 5
j. Whether special relationship between plaintiff and defendant;
k. Whether litigant is a plaintiff or just defending against ‘self-help”.
5. The evidential burden for a “credible testimony” is on the applicant 6 , the
defendant to the proceeding. In situations where the plaintiff has a strongly
arguable case and/or there is a counterclaim by the defendant on foot which
goes beyond mere defensive pleadings, such application will face difficulties 7 .
Factors regarding the exercise of the Court’s discretion
Whether the claim is bona fide
3 Livingspring at 22.
4 Bell Wholesale Co Pty Ltd v Gates Export corporation (No.2) (1984) 2 FCR 1.
5 Where the Plaintiff is a $2 company but may have “cashed up” Directors, or a Guarantee from a parent
company. In some cases the Courts have referred to Creditors who may support the Plaintiff’s case.
6 Right Home Improvements International Pty Ltd v Imperial Alarm Screens (Aust) Pty Ltd (1986) ATPR 40 –
641 at 47,200.
7 See Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 73 ALR 289.
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