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Table of contents

Make a submission
Participants
Terms of reference
Questions

Purpose, scope and background of this inquiry
What is security for costs?
Costs and other orders associated with security for costs
Balancing of various interests
Costs of litigation
Components of litigation costs
Factors that impact on costs
Illustrative cases
Rising costs of litigation
Assistance with litigation costs
Lawyers acting on speculative and contingency fee agreements
Legal aid
Lawyers acting pro bono
Commercial litigation funders
Insurance
Self-represented litigants
New South Wales courts
Federal courts
Consultations
Preliminary submissions
Further consultations
Structure of this paper

Introduction
Sources of jurisdiction
Inherent jurisdiction of the Supreme Court
Implied power of statutory courts
The Uniform Civil Procedure Rules 2005 (NSW)
Section 1335(1) of the Corporations Act 2001
Terminology
Jurisdictional grounds for ordering security
A broad ground for ordering security
Non-resident plaintiff
Change of address
Other issues relating to the grounds in UCPR r 42.21(1)
Discretionary factors
Discretionary factors identified by case law
Incorporating a list of discretionary factors in the UCPR
Relationship between the jurisdictional grounds and discretionary factors
Security for costs orders against corporate plaintiffs
Consistency between the wording of UCPR r 42.21(1)(d) and s 1335(1) of
the Corporations Act
Different treatment of corporate plaintiffs
Proving the impecuniosity of corporate plaintiffs
Where an insolvent corporate plaintiff sues its former directors,
officers and shareholders
Potential restrictions on New South Wales law reform
Ordering security for costs against defendants

Introduction
Litigation funding for profit
What are litigation funders?
The development of the litigation funding industry
New legal obligations imposed on litigation funders
The significance of litigation funding in security for costs applications
Definition of “litigation funder”
Disclosure of the terms of the litigation funding agreement
Power to order costs against litigation funders
Power to order security for costs against litigation funders
Conditional costs agreements
Relevance of conditional costs agreements to security for costs applications
Representative proceedings
Liability of representative plaintiffs for costs
Liability of representative plaintiffs for security for costs
Plaintiffs supported by legal aid
Liability of legally-aided plaintiffs for security for costs
Enabling Legal Aid NSW to enter into conditional and speculative fee arrangements with private lawyers
Lawyers acting pro bono
Pro bono costs and security for costs orders
Exemption from personal costs orders

Introduction
Public interest proceedings
What are public interest proceedings?
The current law
Legislation on costs and security for costs
Case law principles
Public interest costs orders
Definition
Timing of public interest costs orders
Discretionary factors
Types of orders
Location of the provisions on public interest costs orders
Protective Costs Orders
UCPR r 42.4
Public interest litigation fund

Introduction
Determining the amount of security
Evidence relevant to assessing quantum: case examples
Difficulties relating to assessing the amount of security
Form of security
List of possible forms of security
Formal requirements as to the provision of security
Stay of proceedings until security is given
Dismissal of proceedings for non-compliance with order
Appeal against order
Varying or setting aside the order
Finalising the security
Enforcement of the security
Discharge and payment out of the security
Security for costs in appeal proceedings
Security in appeals
Security in applications for leave to appeal
Statutory power to dismiss an appeal for failure to provide security