Dodds v Kennedy

[2011] WASCA 32

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Practice and Procedure
2. › Security for costs
3. › Appeal
4. › Discretionary decision
5. › Court's discretion unfettered
6. › Whether stifling of appeal may be considered in isolation from other relevant factors
7. › Supreme Court (Court of Appeal) Rules 2005 (WA), r 44(1)
1. Practice and Procedure
2. › Security for costs
3. › Appeal
4. › Impecunious appellant
5. › Whether impecuniosity alone sufficient ground for ordering security
6. › Whether respondent's causation of impecuniosity is a fetter on discretion or merely a factor
1. Practice and Procedure
2. › Security for costs
3. › Appeal
4. › Pro bono representation
5. › Whether solicitors acting pro bono with unpaid fees from proceedings below are interested third parties standing behind the litigation
1. Appeal
2. › Review of discretionary decision
3. › Standard of appellate review
4. › Need to show error
5. › House v The King principles
6. › Special restraint for interlocutory orders concerning practice and procedure

Quick Take

The discretion to order security for costs of an appeal under r 44(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) is unfettered. There is no principle that security will be ordered once it is shown that an appellant is impecunious and the impecuniosity was not caused by the respondent. The prospect that a security order will stifle an appeal must be weighed alongside other relevant considerations including the appellant's inability to satisfy a costs order, the fact that the appellant has had their day in court, and whether the respondent caused the impecuniosity. Solicitors acting pro bono with unpaid fees from prior proceedings are not interested third parties standing behind the litigation.