Fagin v Australian Leisure and Hospitality Group Pty Limited

In *Fagin v Australian Leisure and Hospitality Group Pty Limited*, the New South Wales Court of Appeal considered an application for security for costs made by the respondent. The appellant, who was impecunious, sought to appeal a decision, and the respondent argued that security for costs should be ordered. The central question before the Court was whether there were special circumstances that would justify refusing an order for security for costs, particularly where such an order might stifle the appeal.

The Court was required to determine whether the impecuniosity of the appellant, coupled with the potential for an order for security for costs to prevent the appeal from proceeding, constituted "special circumstances" within the meaning of the relevant rules of court. This involved balancing the respondent's right to security for its costs against the appellant's right to access justice and pursue an appeal.

McColl JA reasoned that while impecuniosity alone is generally not a special circumstance, the potential for an order for security to effectively deny an impecunious party access to the appellate court can be considered a special circumstance. The Court considered the merits of the proposed appeal and concluded that there was a sufficient arguable case to warrant allowing the appeal to proceed, even in the absence of security for costs. The principle applied was that the court should not make an order that would prevent a party with an arguable case from having their appeal heard, especially where the impecuniosity is not the result of deliberate conduct designed to avoid liability.

The notice of motion for security for costs was dismissed, with costs awarded to the appellant.