Traynor v Cunningham [No 2]

[2017] WASCA 159

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Security for costs
3. › Security for costs on appeal
4. › Impecunious appellant
5. › Third party funding legal costs
6. › Whether order would stultify appeal
7. › Whether funder's willingness to provide security relevant
1. Practice and Procedure
2. › Security for costs
3. › Security for costs on appeal
4. › Prospects of success
5. › Appeal challenging findings of primary fact
6. › Constraints on appellate interference with fact-finding
1. Appeal
2. › Review of single justice's decision
3. › Discretionary decision
4. › House v The King error
5. › Special restraint for interlocutory orders concerning practice and procedure

Quick Take

Where a third party is funding an appellant's legal costs, the willingness of that funder to also provide security for costs is directly relevant to whether an order for security would stultify the appeal. An inference is open that a funder willing to pay legal costs may also be willing to fund security. In the absence of evidence that the funder would be unwilling to provide security, the appellant has not established stultification. The number and nature of appeal grounds, and the consequent cost burden on respondents, are legitimate factors in the security for costs discretion.