A respondent to an appeal from an interlocutory decision (such as refusal to admit a late affidavit) is in a strong position to obtain security for costs where the appellant's non-compliance with court orders contributed to the decision below, the appellant has not paid prior costs orders, and there is evidence of inability to meet an adverse costs order. The absence of evidence from the appellant that an order for security would stifle the appeal (such as evidence of inability to access funds by borrowing or otherwise) weighs against the appellant. Section 9(7) of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA) may constitute a substantive rather than procedural requirement not capable of substantial compliance under s 16(2).
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