Moxia Pty Ltd & Ors v AMP General Insurance Ltd

Moxia Pty Ltd and others (the applicants) sought special leave to appeal to the High Court of Australia against an order for security for costs made by the Full Court of Victoria. The applicants contended that the Full Court had erred in law by exercising its discretion to order security for costs on the incorrect principle that the impecuniosity of the appellants was, in itself, a sufficient ground to justify such an order.

The central legal issue before the High Court was whether the Full Court of Victoria had correctly applied the principles governing the exercise of discretion to order security for costs under Order 64 rule 17(2) of the Supreme Court Rules. Specifically, the applicants argued that the Victorian Full Court had wrongly treated the existence of "special circumstances" as automatically entitling a respondent to an order for security for costs, without further consideration of other relevant factors.

The applicants submitted that while the existence of special circumstances is a prerequisite for the court to exercise its discretion to order security for costs, it is not, in itself, determinative. They argued that the Victorian authorities, such as *Smail v Burton* and *Scerri v Northam Holdings Pty Ltd*, appeared to suggest that once special circumstances were found, the discretion to order security for costs was automatically exercised. This, they contended, was contrary to High Court authority and the proper approach to discretionary powers, which requires a broader consideration of all relevant factors, not merely the presence of impecuniosity.