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CATCHWORDS: PROCEDURE – COSTS – SECURITY FOR COSTS – GENERALLY – whether there are sufficient grounds to order security for costs / Cachia v Hanes (1994) 179 CLR 403, cited

COUNSEL: Respondent/appellant appeared on his own behalf T J Bradley for the applicant/first respondent

SOLICITORS: Respondent/appellant appeared on his own behalf Nicol Robinson Hallets for the applicant/first respondent

1. JERRARD JA: This application for an order for security for costs is made in the appeal by Mr Paul Henderson against an order or orders by Holmes J (as Her Honour then was) on 30 March 2006. Those orders dismissed two applications by Mr Henderson. One was an application filed 9 January 2006, in which Mr Henderson sought orders finding the respondent Cathi Taylor and a second respondent to his application, Rachael Moss, in contempt in proceedings in this Court, Appeal Number 6205 of 2005, commenced by Mr Henderson in the Trial Division on 1 August 2005. Mr Henderson asked in those proceedings for declaratory and restraining orders. The other application dismissed on 30 March 2006 by the order of Holmes J was an application filed by Mr Henderson on 8 March 2006, seeking orders that his application filed 9 January 2006 be placed on the Civil List, and removed from the Applications List. The application filed 9 January 2006 for orders finding contempt against the two respondents had been maintained on the Applications List since Mr Henderson filed it on 9 January 2006, and was in fact heard (by Holmes J) in that list on 30 March 2006.

2. Mr Henderson has appealed those orders only against the respondent Cathi Taylor, the person currently holding the position of Information Commissioner under the Freedom of Information Act 1992 (Qld).

3. The judgment under appeal held that in respect of three of the four particulars of contempt provided by Mr Henderson, pursuant to an order made on 17 February 2006 by another judge in the Trial Division, neither Cathi Taylor nor Rachel Moss (the Assistant Information Commissioner) had any case to answer on the charges Mr Henderson had brought against them. Regarding the first, Holmes J held that the evidence or material disclosed nothing that could support the complaint of contempt, and regarding the third and fourth particulars held that there was simply no evidence at all. Regarding the second, there was some evidence, but the learned judge held that it failed to demonstrate any contempt or attempt to interfere with the proper administration of justice, or any intent on the part of either of the respondents to do so.

4. The essence of Mr Henderson’s argument on appeal is that the learned judge ought not to have heard his application filed 9 January 2006 at all; should have allowed him at the very least an adjournment of it so that he could pursue applications directed to the Queensland Police Service under the Freedom of Information Act in his attempts to obtain evidence in support of the charges; and further that he, as applicant for orders for contempt, should have been allowed to call either or both of the respondents as his witnesses before Holmes J to establish the evidence on which he would rely against them. He also argues that adjourning his application at his request to the Civil List would have allowed him at least the possibility of getting disclosure of documents by the respondents. His case before the judge conceded that he was quite unable on 30 March 2006 to prove the contempt he had alleged on 9 January 2006: that inability is the basis of the appeal.

5. The extensive index of documents relied on by the respondent to the appeal (the applicant for the order for security of costs), and the extensive written submissions, are almost entirely directed to the contention that Mr Henderson has poor prospects of success on any of his grounds of appeal. But there is very little in the material put before this Court on the application for security for costs to support the conclusion that Mr Henderson, assuming he loses the appeal, will be unable to satisfy an order for costs made against him. All that the applicant for the security can point to is that Mr Henderson was a bankrupt between 7 February 2001 and 29 March 2004; and that one of the debts provable in his bankruptcy, and never paid, was an agreed figure of $3,211.10 costs owing by him to the Information Commissioner in respect of an order for costs made by this Court, in or about 1999.

6. As against that, the applicant for security put no evidence before the Court to suggest that Mr Henderson is not currently able to pay his debts as they fall due, and although the material filed on the application includes the information that at least one order for costs has been made this year against Mr Henderson, Mr Bradley of counsel, appearing for Cathi Taylor, informed the Court that those costs were currently being assessed, and candidly stated he could not contend that there was any relevant unsatisfied liability. So the position is that Mr Henderson is a citizen free from bankruptcy now for two and a quarter years, and engaged in litigation as a self-representing litigant in which the other party to the litigation is confident that Mr Henderson’s litigation has no merits and should be an avoidable nuisance.

7. However valid that confidence might be, the appropriate method of ventilating complaints about harassment by specious proceedings is not by applications for security for costs founded only on proof that the party from whom security is sought is a discharged bankrupt. More needs to be shown, and once again Mr Bradley candidly conceded that his material on this point was very limited. This was not an application to have Mr Henderson declared a vexatious litigant and irrespective of the merits of his appeal, the application for security should be dismissed. It is important that applications for security are not used as a variety of strike out applications on appeal, or as the equivalent on appeal of an application for summary judgment; although I do not suggest that has happened here.

8. I would order the application be dismissed with costs assessed on the standard basis. Mr Henderson, as a self-representing litigant, may have difficulty establishing assessable costs¹, but that is another matter.

9. HELMAN J: I agree with the order proposed by Jerrard JA and with his reasons.

10. CHESTERMAN J: I agree with Jerrard JA.