McWilliam v Penthouse Publications [1999] NSWCA 2

McWilliam v Penthouse Publications [1999] NSWCA 2

The combined factors of one appellant residing out of jurisdiction and both being impecunious do not amount to 'special circumstances' to justify an order for security for costs, particularly as a meritorious and arguable appeal would be frustrated, and joint representation mitigates any prejudice.

Parties
Appellant: Bruce Scott McWilliam; Appellant: Peter Bruce McWilliam; Respondent: Anthony Charles Badham Jackson; Respondent: Ernest Ormond Butler Thomas & ors trading as Norton Smith; Respondent: Penthouse Publications Limited (London, United Kingdom) & Ors
Jurisdiction
Australia
Judgment Date
21 January 1999
Procedural Posture
Appeal / Application for Security for Costs
Outcome
Application for security for costs dismissed.
Legal Topics
Security for Costs, Appeals, Standing, Impecuniosity
Civil Procedure Security for Costs Appeals Standing Impecuniosity

Case Brief

Summary, issues, holding and outcome

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Parties

Bruce Scott McWilliam

Appellant

Peter Bruce McWilliam

Appellant

Anthony Charles Badham Jackson

Respondent

Ernest Ormond Butler Thomas & ors trading as Norton Smith

Respondent

Penthouse Publications Limited (London, United Kingdom) & Ors

Respondent

Procedural Posture

Appeal / Application for Security for Costs

Legal Issues

  1. 1 Whether an order for security for costs should be made against appellants where one appellant resides outside the jurisdiction and both are impecunious.
  2. 2 Whether the appellants' residence, impecuniosity, and the prospects of the appeal constitute 'special circumstances' justifying security for costs.
  3. 3 Whether the appellants have standing to sue.

Ratio Decidendi

The combined factors of one appellant residing out of jurisdiction and both being impecunious do not amount to 'special circumstances' to justify an order for security for costs, particularly as a meritorious and arguable appeal would be frustrated, and joint representation mitigates any prejudice.

Court Disposition

Application for security for costs dismissed.

Orders

  • Motion for security for costs dismissed.
  • One third of the costs of the motion to be claimants' (2nd and 3rd respondents) costs of the appeal, recoverable if they obtain an order for costs of the appeal in their favour.