Section 69(3) of the Land and Environment Court Act 1979 (NSW) confers power to order security for costs against impecunious natural persons bringing proceedings under the open standing provision in s 123(1) of the Environmental Planning and Assessment Act 1979 (NSW). The traditional common law rule that poverty is no bar to litigation does not survive the broad statutory language. However, the principles applicable to security for costs are materially different from those applicable to costs: a defendant is not entitled to security merely because the plaintiff cannot demonstrate strong prospects of success. Relevant factors include whether the proceedings are arguable and regularly commenced, the plaintiff's proximity to the development, whether the order would stultify the proceedings, the financial position of the defendant, and the amount of security sought.
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