AZRIEL v SFHIR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY J 26 July 1993, 26 July 1993 [1993] NSWCA 13 Handley J This is an appeal as of right by Eliezer Azriel from a decision of Grove J who dismissed a summons for relief prerogative in nature against a decision of the Local Court in its Small Claims jurisdiction. The proceedings at first instance were heard at Waverley Local Court and comprised a claim and cross-claim for property damage arising out of a motor vehicle accident. The result of the proceedings was that judgment was given against the present appellant in favour of the cross-claimant for $1675.38. After abortive proceedings to state a case to the Supreme Court and further abortive proceedings in which the present appellant sought to prohibit the decision of the Magistrate, without joining him as a party to the proceedings, the appellant brought proceedings in the Common Law Division for common law prohibition against the Magistrate and the defendant cross-claimant, alleged that he had been denied natural justice in the Local Court. On 21 May Grove J dismissed the appellant's claim for prerogative relief with costs for reasons which he then gave. The appellant has appealed as of right to this Court, and as presently advised it appears that the appeal is competent. The respondent to the appeal has now moved for an order that the appellant provide security for the costs of the appeal. The appellant concedes that he is impecunious and unable to meet the costs ordered by Grove J or indeed to provide any security for the costs of the appeal. There is evidence before me that attempts by the respondent to execute on the judgment of the Local Court against the appellant have been unsuccessful. The position, therefore, is that the appellant has failed both in the Local Court and in the Supreme Court, and seeks to bring a second appeal and to involve the respondent in a third hearing relating to the merits of the dispute. I exclude for present purposes the hearing before Finlay J where earlier proceedings by the appellant challenging the decision of the Local Court failed for procedural reasons. The Court is entitled, in my opinion, to look more carefully at the question of security for costs when they are sought against an appellant who has had the benefit of a trial on the merits and has failed in one appeal or quasi appeal against the decision of the trial Court. The jurisdiction of this Court to order security for costs is conferred by RSC Pt51 R11 which provides that it can be ordered in special circumstances. In my opinion, the combination of circumstances disclosed in the present case are sufficiently special to attract the Court's discretion to order security. I refer to the admitted impecuniosity of the appellant, the inability of the respondent to obtain satisfaction of the judgment entered by the Local Court against the appellant, the modest amount of the judgment sought to be challenged, the disproportion 2 UNREPORTED JUDGMENTS between the probable costs to be incurred by the respondent in the present appeal and the amount of that judgment, and the likely prospects of success in the appeal to this Court. In the circumstances I propose to make an order that the appeal be stayed unless and until the appellant provides security for the respondent's costs of the appeal in the amount of $2500 to the satisfaction either of the respondent or of the Registrar, such security to be provided on or before 4 pm on Monday 25 October 1993. I order the appellant to pay the costs of this motion.