Remely v O'Shea[2008] QCA 119

COURT OF APPEAL

KEANE JA

Appeal No 8395 of 2007

BRISBANE 

DATE 20/05/2008

KEANE JA:  I will just deliver now the reasons of the Court in relation to the respondents' application in respect of the costs of the appeal.

The first order is that the costs order made on 4 April 2008 be vacated.  The second order is that the applicant/appellant pay the respondents' costs of the appeal and the applications to be assessed on the standard basis in the case of the first respondent and be assessed on the indemnity basis in the case of the second respondents and I publish the reasons of the Court.

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KEANE JA:  On the 4th of April 2008 the Court of Appeal made a number of orders against Mr Remely.  Those orders included the dismissal of his appeal against the decision by a judge of the Trial Division of the Supreme Court to refuse Mr Remely's application for judicial review of a decision in the Small Claims Tribunal.  The decision of the Small Claims Tribunal related to disputes arising out of Mr Remely's tenancy at the caravan park operated by the respondents, Mr and Mrs Vandenberg.

The Court of Appeal also refused Mr Remely's application to set aside an order by Justice Holmes refusing a stay of orders made by the learned trial Judge. 

The Court of Appeal ordered Mr Remely to pay the costs of the proceedings before it on the standard basis.  The respondents sought an order as to costs on a somewhat different basis and, by the Court of Appeal's order published today, Mr Remely was ordered to pay those costs of the second respondents in the proceeding in the Court of Appeal on the indemnity basis.

On 15 May 2008 Mr Remely filed an application for a stay of the costs orders made by this Court on 4 April 2008.  Today, by leave, he expanded that application orally to include the costs orders published today. 

Mr Remely seeks a stay of those orders until an appeal to the High Court against the orders of the Court of Appeal is heard and determined. 

It is important to state immediately that an appeal to the High Court lies only upon the grant of special leave by the High Court.  Mr Remely has currently no appeal on foot and will not have an appeal on foot unless and until his application for special leave is granted.  The grant of special leave is a matter for the discretion of the High Court.  The point of immediate concern and interest so far as this application is concerned is that, to the extent that Mr Remely's application for a stay is based on the existence of an appeal to the High Court, that assumption is misconceived.

An application for a stay of orders of the Court of Appeal, based on the pendency of an application for special leave, must show some good reason for a stay over and above the mere existence of the application for special leave.  In Rapid Roofing Pty Ltd & Ors v Natalise Pty Ltd & Ors [2007] QCA 179 at paragraph 4, Justice Jerrard said that, "The critical issue is the balance of convenience".

In relation to the balance of convenience there is no reason to think that it is necessary to grant Mr Remely's application for a stay in order to preserve the subject matter of a litigation to ensure the efficacious exercise of the High Court's jurisdiction in the event that special leave is granted.

Further, to the extent that Mr Remely's application involves the further prolongation of disputes about matters of small financial consequence which were submitted to the Small Claims Tribunal and which should have been resolved cheaply and speedily, considerations of convenience tend against the grant of his application to the extent that it is relevant to the balance of convenience. 

To consider Mr Remely's ultimate prospects of success, it must be said that his unrelieved lack of success to this point tends to suggest, to say the least, that his prospects are not good. 

To the extent that Mr Remely is concerned that he will suffer financial disadvantage if the costs orders made against him are not stayed, the first point to be made is that there is no reason to suppose that any costs which might be recovered from Mr Remely by the respondents, Mr and Mrs Vandenberg, would not be repaid to him if his position should ultimately be vindicated by the High Court.  Secondly, to the extent that Mr Remely's concern is that his financial position might be irreparably harmed if he were required to pay the respondents' costs before his vindication by the High Court, there is no evidence before me that shows that this concerned is warranted. 

But even if this evidentiary deficit in his application could be overlooked, and I could conclude that the payment of the costs will be a hardship for him, I would nevertheless be disinclined to make an order which will have the effect of increasing in any way the risk to the respondents that they might not recover a proper indemnity for the legal costs to which they have been put by litigation which Mr Remely has pursued.

For these reasons I have concluded that no good reason has been shown for staying the orders of the Court of Appeal.  I therefore dismiss Mr Remely's application.  As to the costs of this application I can see no reason why the usual order, that is to say, that the costs should follow the event should not be made.  Accordingly, I order that Mr Remely pay the second respondents' costs of this application to be assessed on a standard basis.

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KEANE JA:  Mr Dickson, on behalf of the second respondents, has made an application that the costs paid by Mr Remely be assessed on the indemnity basis.  The basis for that application is that Mr Remely's application today was always destined to fail by reason of evidentiary and legal deficits.  That submission, it seems to me, is correct.

Accordingly, I vacate the order I formally announced and order in lieu thereof that Mr Remely's application be dismissed and that Mr Remely pay the second respondents' costs of this application to be assessed on the indemnity basis.