Supreme Court Act 1935, s 6, s 7, s 16, s 30, s 41, s 58, s 167(1)

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685

Cox v Simeon, unreported; FCt SCt of WA; Library No 5063; 7 September 1983

Croney v Nand [1998] QCA 367; [1999] 2 Qd R 342

Federal Commissioner of Taxation v Myer Emporium Ltd [No 1] [1986] HCA 13; (1986) 160 CLR 220

Linotype-Hill Finance Ltd v Baker (Practice Note) [1992] 4 All ER 887

McBride v Sandland [No 2] [1918] HCA 59; (1918) 25 CLR 369

The Annot Lyle (1886) 11 PD 114

1 PULLIN J: This is an application to stay execution.

3 On 11 December 2001, Templeman J gave judgment for the plaintiff against the defendants in the sum of $79,310. Templeman J found that the money was paid by the plaintiff to the defendants under an arrangement that the money would be used to buy land on which a house was to be constructed with a granny flat incorporated in it. It was expected that the plaintiff would live in the granny flat. At the time of trial, the plaintiff was 78 years of age and was at the time living at the Church of Christ Homes in Mt Lawley. Without the moneys from the plaintiff, the defendants were unable to obtain finance to purchase the house. After the house was purchased in the names of the defendants and the money transferred by the plaintiff to the defendants, the relationship between the plaintiff and her daughter, the second-named defendant, broke down and the plaintiff did not live with the defendants. The trial Judge considered that in those circumstances it was unconscionable for the defendants to retain the benefit of the payment and that there should be an order for the return of the moneys, which should be secured by an equitable charge over the property.

4 The defendants appealed to the Full Court. On 29 October 2002, in Lawrence v Branch [2002] WASCA 292, the Full Court dismissed the appeal and ordered the defendants to pay the plaintiff's costs of the appeal.

5 On 2 December 2002, the defendants made application for special leave to appeal to the High Court. The plaintiff has now issued two writs of fi fa, and the sheriff has seized the land registered in the name of the defendants and intends to proceed to sale. One writ is for the judgment sum, interest and costs ordered by Templeman J. The other relates to the costs ordered by the Full Court.

6 The defendants now apply for a stay of execution on both writs pending the hearing of the application for special leave.

7 The question of jurisdiction was raised when the defendants made an earlier application for a stay before Master Newnes. The Master adjourned the matter and suggested (but did not direct) that the application should be made to the Full Court. The Master referred the parties to the decision of Steytler J in Ibbotson v Chaney, to which I will refer in a moment. The defendants chose not to list the application before the Full Court. Instead they chose to apply to a Judge for the stay, which is why I am now dealing with this application.

8 I raised the question of jurisdiction with the parties, but neither of the parties were interested in debating the point. Both wished me to deal with the application. It is necessary nevertheless for me to consider whether I do have jurisdiction, even though the parties are not interested in the subject.

9 The application is made pursuant to O 47 r 13(1) which reads:

"The Court, if satisfied by the judgment debtor ... under a judgment or order -

(a) that by reason of special circumstances it is inexpedient to enforce the judgment or order ...

may stay the execution for such period and on such terms as the Court thinks fit."

10 Order 63 r 15 also applies in relation to certain stay applications. In that rule, the "Full Court or a Judge" may grant a stay in circumstances where an appeal is pending before the Full Court.

11 This application is for a stay after the Full Court has disposed of the appeal, and in my view it is O 47 r 13(1) and not O 63 r 15 which governs such an application.

Jurisdiction of a Judge to Stay Execution on a Judgment which has been the Subject of an Unsuccessful Appeal

12 The first question is whether a single Judge has jurisdiction to hear a stay application when the judgment which is the basis of the execution proceedings has been the subject of an unsuccessful appeal to the Full Court.

13 In Pizzale v Jumina Enterprises Pty Ltd, unreported; SCt of WA; Library No 940473; 7 September 1994, Scott J, in similar circumstances, considered that he had jurisdiction to order a stay of execution. At first, I thought there could be no doubt about this because O 14 r 13 (1) states that it is the "Court" which has jurisdiction. Order 1 r 4(2) reads:

"In these Rules, unless the context otherwise requires, 'the Court' means the Supreme Court or any one or more Judges thereof, whether sitting in court or in chambers, or a Master: but this provision shall not be taken as affecting any provision of these Rules, and in particular Order 60, by virtue of which the authority and jurisdiction of the Masters is defined and regulated."

14 The word "context" has two meanings. It may mean the "parts of a ... writing which ... follow, and are directly connected with, a given passage or word", or it may mean "the circumstances or facts that surround a particular situation, event, etc" (see Macquarie Dictionary). So far as the word is used in its first sense, there is nothing in the context of the wording of O 47 r 13(1) which suggests that the word "Court" cannot be read as a reference to a Judge and to the Full Court. Insofar as the word "context" is used in its second sense, there is nothing about the application for a stay of execution of a judgment which has been the subject of an unsuccessful appeal which, without more, requires the reference to the "Court" in O 47 r 13(1) to be read as a reference to the Full Court to the exclusion of a single Judge. Before reaching a conclusion on this point, I should, however, refer to the provisions of the Supreme Court Act 1935 ("the Act").

15 An application for a stay is a matter of practice and procedure, and the Act authorises the Judges to make the rules of court which deal with matters of practice and procedure (see s 167(1) of the Act).

16 The reference in O 1 r 4(2) to the "Supreme Court" is a reference to the Supreme Court created by s 6 of the Act. Section 7(1) of the Act provides that the Supreme Court shall consist of the Chief Justice and such other Judges as the Governor may appoint, along with acting Judges, Masters and acting Masters. The Act sometime refers to the Supreme Court as "the Court"; so, for example, s 7(4) provides that "the Court" shall be "held by and before a Judge or more than one Judge".

17 Sections 16 and 30 of the Act confer general and appellate jurisdiction on the "Supreme Court".

18 Section 41(1) of the Act then provides:

"All causes and matters within the jurisdiction of the Court which are not required by this Act or the Rules of Court, or by any statute in force in this State, to be heard and determined by the Full Court shall be heard, determined, and disposed of by a single Judge in accordance with the provisions of this Act and the Rules of Court."

19 Section 41(4) of the Act provides:

"A single Judge, whether sitting in court or in chambers, shall have and may exercise, with respect to any cause or matter properly brought before him, all the jurisdiction, powers, and authorities of the Court as the circumstances may require to be exercised."

20 A reading of s 41(1) raises the question as to whether the "Act or the Rules" require an application for a stay of execution to be heard by the Full Court. There is no such requirement in the Rules. What though of the Act? Section 58 of the Act provides:

"(1) Subject as otherwise provided in this Act and to the Rules of Court, the Full Court shall have and shall be deemed ... to have ... jurisdiction to hear and determine ... appeals from a Judge ... whether sitting in court or in chambers ...

(2) Any appeal, application, cause, matter or proceedings referred to in subsection (1) shall lie or may be made to, or may be brought before, the Full Court which, subject as aforesaid, shall hear and determine the same, and questions incidental thereto."

21 That section therefore raises the question as to whether the phrase "and questions incidental thereto" at the end of s 58(2) means that the Full Court "shall hear" stay applications in relation to execution on judgments which have been the subject of an unsuccessful appeal.

22 In Ibbotson v Chaney, unreported; SCt of WA; Library No 980409; 21 July 1998 Steytler J said this about Scott J's decision in Pizzale's case;

"... It seems to me, with due respect, that his Honour, in taking the view that any judge of the Supreme Court could grant a stay of a judgment of the Full Court of that Court pending an application for special leave to the High Court, may have misunderstood what was said by Brennan J in the case of Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd ... relied upon by him for that proposition. What was there said by Brennan J at page 684 is as follows:

'When an application for special leave to appeal is made to this Court, a jurisdiction to stay may be exercised by the court below and it is to that court - the court in which the matter is pending and which is familiar with the matter - that an application to stay should first be made. In this case the Court of Appeal, not wishing to pre-empt the view that may be expressed in this Court, tailored its order accordingly. In future, there should be no inhibition on the court in which the matter is pending framing a stay order, if a stay be appropriate, to avoid the necessity for application to this Court.'

It seems to me that the reference to 'the court in which the matter is pending', in the context of an application for special leave to the High Court, must be one to the Court whose decision is appealed against, in this case the Full Court of the Supreme Court of Western Australia. It is only that court which is 'familiar' with the matter."

23 His Honour also referred to Joskovitz v Bonnick [1964] VicRp 83; [1964] VR 654 at 656, but that decision does not decide the issue, as Steytler J himself recognised.

24 Steytler J's decision relies on what was said by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] [1986] HCA 84; (1986) 161 CLR 681. With respect to Steytler J, however, I do not read Brennan J as deciding that only the Full Court, and not a single Judge, can deal with a stay application in the circumstances I am considering.

25 It is my opinion that the application for a stay does not necessarily raise a question "incidental to the appeal". As a result, there is nothing in the context which requires the words "the Court" in O 47 r 13 to be read as excluding a reference to a Judge.

26 I conclude, therefore, that both the Full Court and a single Judge have jurisdiction under O 47 r 13(1) to entertain an application for a stay of execution in relation to the judgment which has been the subject of an unsuccessful appeal to the Full Court.

27 There is no doubt that in a particular case the Full Court may have greater familiarity with the circumstances surrounding the judgment under consideration, in which case it would be appropriate to apply for the stay before the Full Court after the appeal had been disposed of and pending an appeal to the High Court. In other cases it would be appropriate for a single Judge to hear the application. Whether the application is dealt with by the Full Court or a Judge, however, is not a point of jurisdiction. In my view, both have jurisdiction in the circumstances under consideration.

Jurisdiction of a Judge to Stay Execution in Relation to an Order for Costs made by the Full Court

28 There is then a further issue about whether a single Judge may order a stay of execution on a costs order made by the Full Court after it has dismissed an appeal.

29 In In the Marriage of Molier & Van Wyk (No 2) (1981) 50 FLR 423, a Federal Court Judge held that he did not have jurisdiction to stay an order of the Full Court. That decision was reached entirely by reference to the provisions of the Family Law Act 1975 and regulations.

30 There is no question in these circumstances about the Full Court's jurisdiction to order a stay. Order 14 r 13(1) says it has jurisdiction. The issue is, however, whether by the Act or Rules the stay application is "required" (see s 41(1) of the Act) by the Act or Rules to be heard by the Full Court rather than a Judge. I am driven to the conclusion that a Judge does not have jurisdiction to stay execution on an order for costs which was made, not by the trial Judge, but by the Full Court. If s 58(2) had been qualified, as in s 58(1), by the words "Subject ... to the Rules of Court", it would have been possible to conclude that O 47 allows either the Full Court or a single Judge to grant a stay. However, s 58(2) is not qualified by such words, so my conclusion is that an application for a stay of execution on an order for costs made by the Full Court raises a "question incidental" to the appeal. As a result, in the context of an application to stay execution on an order made by the Full Court, I consider that the reference to "the Court" in O 47 r 13, as defined in O 1 r 4(2), must be read as a reference to the Full Court. I therefore conclude that I do not have jurisdiction to deal with the application to stay execution on the costs order made by the Full Court. However, in case I am wrong on that point, I will still consider the merits of that part of the application.

31 Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 sets out the relevant authorities and principles governing an application for a stay by a party seeking special leave to appeal to the High Court. That case makes it clear that a stay is not granted simply for the asking; that it is not normal to grant a stay; and that the jurisdiction to grant a stay is an "extraordinary jurisdiction" and only to be exercised in "exceptional circumstances". As Anderson J states at page 89, one of the circumstances which would enliven the discretionary jurisdiction and which will be exceptional, is if there is a real risk that it will not be possible for a successful applicant to be restored substantially to his former position if the judgment against him is executed.

32 The defendants submit that if execution proceeds, then their home will be sold in satisfaction of the judgment, and if special leave is granted and then an appeal to the High Court succeeds, then the defendants will not be able to regain their house if it has been sold by the sheriff. It is important to note, however, that this is not a case where a stay is required to preserve the subject matter of the litigation. True it is the dispute revolved around the defendants' home which is now threatened by execution, but the judgment of Templeman J was a judgment for a money sum. The plaintiff is executing to enforce payment of that money sum. This may have resulted in the seizure of goods and chattels but, in fact, the sheriff intends proceeding with the sale of the defendants' home. The first-named defendant says neither he nor his wife, the second-named defendant, nor their son, the third-named defendant, is able to satisfy the judgment and tax costs other than by sale of the property. They do not, however, give any particulars about their financial position, and more importantly they do not suggest in any of their affidavits that they have made any attempt at all to seek to borrow money to pay the judgment. On their own evidence, the property could be sold for about $240,000, and there is a debt to a bank secured by mortgage in the sum of $90,000. In those circumstances, it would have been reasonable to expect that the defendants would demonstrate to the Court that they had made a determined effort to raise the money to pay the judgment sum and costs.

33 In my view, therefore, the defendants have not shown that a stay is necessary to preserve the subject matter or integrity of the litigation in the sense indicated by Anderson J in Hammersley Iron v Lovell (supra) at page 89.

34 However, even if I were wrong at that point and it could be said that the stay was necessary to preserve the subject matter or integrity of the litigation, it is then necessary to go on to consider the defendants' prospect of success on the application for special leave and where the balance of convenience lies. See Hammersley Iron v Lovell (supra) at page 90.

35 I will therefore deal now with the defendants' prospect of success on the application for special leave. The defendants argued before me that a question of law of public importance arises because this case raises a point which distinguishes it from Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583. Counsel for the defendants submitted that there was a substantial prospect that the High Court would grant special leave to consider circumstances where the relationship was not between two people but between four people and that only two of the four people had fallen out (in this case the plaintiff and her daughter the second-named defendant). In my view, that misses the point of what Deane J said in Muschinski v Dodds (supra). The relationship referred to by Deane J is the arrangement or financial relationship or joint endeavour which has broken down. It is not a reference to the fact that the parties have fallen out on a personal level. Counsel for the defendants secondly submitted that there were substantial prospects that the High Court would grant special leave because the circumstances of this case were different from Muschinski v Dodds (supra).

36 These points are not raised in the application for special leave, the grounds of which read:

1. The learned trial judge erred in law when he found that the retention by the applicants of the benefit received from the respondent to be unconscionable;

2. The learned trial Judge erred in law when he found that the funds advanced by the respondent constituted a conditional gift and imputed into the agreement a condition not supported by the evidence that the relationship between the parties be harmonious;

3. The Full Court erred in law when it found that the failure by the learned trial Judge to give reasons for particular finding of facts did not constitute a serious miscarriage of justice; and

4. The Full Court erred in law by failing to find that the learned trial Judges decision in this cased was based on random notions of what was fair and just as a matter of abstract morality rather than a decision, according to equitable principle, that the retention of the benefit by the applicants was not unconscionable."

37 However, I will assume that all the points argued before me may be put to the High Court.

38 There is no doubt that the approach of this court on this application must be the same as the approach of the High Court if the application had been made to that Court.

39 In Jennings Construction's case, Brennan J said that it is relevant to consider whether there is a substantial prospect that special leave will be granted or not. In my opinion, there is very little prospect that special leave will be granted. The principles stated by Deane J in Muschinski v Dodds (supra), and applied by the trial Judge and by the Full Court, have been approved by the High Court and applied on many occasions in cases throughout Australia. In my view, there is no question of public importance which arises. In any event, the written application for special leave is, in essence, an attempt to challenge concurrent findings of fact in the particular case.

40 In my view, there is very little prospect that the High Court would grant special leave simply because the circumstances of this case were different from those in Muschinski v Dodds (supra). The High Court in Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 has made it clear that the circumstances of each case must be considered in moulding the relief to be granted. In my view, there is very little prospect that special leave would be granted to deal with that point again.

41 Finally, I turn to the balance of convenience. The defendants say that they will lose their home if execution proceeds. I have already pointed out that the defendants have not revealed whether or not they can borrow money, but even assuming that they cannot, I must also look at the position of the plaintiff. The plaintiff is now 82 years of age and lives in a unit at a retirement centre. In order to reside at the retirement centre, she paid a bond of $18,863 and pays fortnightly rent. Her only source of income is that provided by the old age pension, which is the sum of $527.20 per fortnight. Her total fortnightly expenditure on health insurance, rent, electricity, chemist expenses, telephone bill, groceries and incidental expenses, amounts to $614.86. As the plaintiff's fortnightly expenditure is in excess of her old age pension, she is required to fund the difference of $82.66 from her personal savings. Her savings total $6,022.51.

42 The solicitors for the plaintiff have spoken to the deputy Registrar of the High Court as recently as 29 May 2003. The application for special leave has not yet been listed for hearing. There are approximately 40 "Western Australian matters" that require a hearing before the High Court, and the High Court is scheduled to hear Western Australian based applications during August and October 2003. The deputy Registrar indicated that it was likely that the High Court application would be heard during the October sittings, but there was a possibility that, due to the large number of older outstanding applications, it might not be heard during that month. If the application could not be heard in October, then the next scheduled sitting of the High Court would be early in 2004.

43 In my view, the balance of convenience favours the dismissal of the application. Another factor that is to be borne in mind is that in the present buoyant real estate market, if the house is sold then the plaintiff will recover her moneys, the defendants will be able to pay off the bank, and the defendants will be left with a sum in excess of $30,000 to allow them to purchase another property. That may be inconvenient, and I do take account of the fact that the second-named defendant is ill. However, in my opinion, for all the factors I have mentioned, I consider that the application for a stay of execution in relation to the judgment of Templeman J should be dismissed. If I had jurisdiction in relation to the application to stay execution on the costs order made by the Full Court, I would also have dismissed that application for the same reasons.