James & Baker v Staples Summary

[1995] QCA 575

COURT OF APPEAL

FITZGERALD P
PINCUS JA

DOWSETT J

Appeal No 107 of 1995

PETER JAMES and

NOELA MAY BAKER	Appellants (Defendants)
and
DOUGLAS REGINALD STAPLES	Respondent (Plaintiff)
BRISBANE ..DATE 25/10/95 THE PRESIDENT: It is unnecessary to dispose of this matter to discuss the circumstances which give rise to this application for security for costs in detail or to recite the events in the chronology since the appeal was instituted early in June this year.
The principal argument on behalf of the applicants for security for costs is that the respondent, the appellants in the appeal, are insolvent or will be insolvent if the appeal is unsuccessful and will be unable to pay the costs which the respondent incurs in the appeal.
The appellants make a number of answers to that, some of more substance than others. For example, it is submitted that they may be able to pay if they are successful in some other litigation but that is not a matter with which the Court can presently be concerned in any substantial way.
The major factors against the application, in my opinion, are the delay which has occurred since the appeal was instituted, the steps which have been taken in the appeal and the circumstance that nothing else remains to be done except the preparation of the appeal record which will not involve the respondent to the appeal in any immediate expense and the hearing of the appeal which, in my opinion, is likely to take less than one day.
In the circumstances, on balance, giving particular weight to the point in which the proceeding has reached before an

251095 T14/SA M/T COA95/329

application for security for costs was made, I would refuse the application. I would order that the costs of the application be the appellants' costs in the appeal.

PINCUS JA: I agree.

DOWSETT J: I also agree.

THE PRESIDENT: The orders will be as I have indicated.

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CaseChat Overview and Summary

The Court of Appeal in Queensland heard an appeal regarding an application for security for costs in the case of James & Baker v Staples. The applicants, James and Baker, sought security for costs against the respondent, Staples, on the grounds that Staples is insolvent or will become insolvent if the appeal is unsuccessful and thus unable to pay the costs incurred by the applicants in the appeal. The applicants presented various arguments in response, including the possibility of paying the costs if successful in other litigation, though this was not a substantial concern for the court. The court examined the delay in the application, the steps taken in the appeal, and the remaining tasks, concluding that the hearing would likely take less than a day. The President, along with Pincus JA and Dowsett J, decided to refuse the application and ordered the costs of the application to be borne by the applicants in the appeal.

The legal issues at hand primarily revolved around the appropriateness of granting security for costs under the circumstances presented. The applicants needed to demonstrate that there was a real prospect of being unable to pay the costs of the appeal if the appeal was unsuccessful. The court considered various factors, including the delay in making the application, the progress of the appeal, and the minimal remaining tasks. The applicants' argument that they might be able to pay if successful in other litigation was deemed irrelevant as it was not a substantial concern for the court. The court had to balance these factors against the likelihood of the appeal proceeding swiftly to a conclusion.

The reasoning of the Court of Appeal emphasized the timing and progress of the appeal. The delay in applying for security for costs, coupled with the minimal remaining tasks and the short duration expected for the appeal hearing, weighed heavily against the applicants' request. The court found that the applicants had not sufficiently demonstrated a real prospect of being unable to pay the costs if the appeal was unsuccessful. Consequently, the court refused the application for security for costs and ordered that the costs of the application be borne by the applicants in the appeal.

James & Baker v Staples

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established