Finch v The Heat Group Pty Ltd

1. The application be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PAGONE J: 1 In proceeding VID 243 of 2016 the applicant, Jo-Anne Finch, filed an interlocutory application seeking a stay of the orders made by Jessup J on 4 March 2016. In that proceeding, his Honour set out his reasons in 122 paragraphs and 32 pages for the orders made on 4 March 2016. The principles relevant to whether a stay should be granted in such application as that made by Ms Finch are set out in Flight Centre Pty Ltd v Australian Competition & Consumer Commission [2014] FCA 658 where Rangiah J said at [9]: (a) There is an onus on the applicant to demonstrate a proper basis for a stay that will be fair to all parties. (b) There is a prima facie assumption that the judgment appealed from is correct. (c) There is a prima facie assumption that the Court should not deprive a litigant of the benefit of a judgment in its favour. (d) The Court has a broad discretion as to whether to grant a stay, and it is not necessary for an applicant for a stay to demonstrate special or exceptional circumstances. It is sufficient that the applicant demonstrates a reason or an appropriate case to warrant the exercise of discretion in its favour. (e) The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case. (f) A stay will usually be granted if there is a real risk that the applicant will suffer prejudice or damage, if a stay is not granted, which will not be redressed by a successful appeal. (g) In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it. A successful applicant, in other words, is entitled to the benefit of orders made in his or her favour, and there is a presumption that the orders and judgment of a judge are correct and should be complied with notwithstanding an appeal. The lodging of an appeal does not make the orders and judgment less authoritative or binding upon the parties. The Court, obviously, however, may grant a stay where necessary to ensure that an appeal is not itself rendered nugatory if a party is successful on appeal: the Court should ensure that the success of the appeal is able to be enjoyed by a successful appellant. 2 In my view, there are, with the one possible exception, no bases upon which it could be said that a successful appeal or, more particularly in this case, an application for leave to appeal, would result in the appellant not being able to enjoy the benefits of a successful appeal. All of the orders, with one possible exception, are capable of being reversed if Ms Finch is successful in an appeal. One of the orders requires the payment of security for costs, but if the appeal is successful, that order can be reversed and any payment that is made can be undone. The one possible qualification is in respect of order 5, not because a successful appeal would not be able to undo that order, but because a consequence of complying with orders 2 and 3 would be that costs would have been incurred, or might be incurred, in the preparation of an amended document, which, if the appeal is successful, would be rendered pointless, not nugatory, but pointless (in the sense of wasted), and to that extent, I can see an argument in favour of amending order 5, which I would do by deleting the word "thereupon" in the last line and adding to it the words "at the hearing of the application for leave to appeal, unless otherwise ordered,". 3 That will have the consequence of deferring debate about the impact of that order to any application for leave to appeal. It will leave with Ms Finch the option of complying with orders 2 and 3 without the automatic consequence which had been ordered by order 5. A decision by her not to comply with orders 2 and 3 may have adverse consequences for her but they will not be automatic and will leave open to her the possibility to defend a decision of not complying with orders 2 and 3 if she decides to take that risk. I am otherwise not satisfied that the interlocutory orders that are sought should be made in this proceeding. 4 In matter VID 73 of 2015, the applicant seeks orders which fit into a number of categories. The first category seems to be an application that various orders made by Murphy J be stayed. A consideration of the orders in question indicate that a stay of those orders is inapt, because if there is to be a variation of those orders, it is not by way of a stay, but by way of an appeal, if any. 5 The second category of orders sought in the application for interlocutory relief seems to be a request for an extension of time for leave to appeal the orders made by Murphy J. That application can be made, but it is not made in the required form and it is sufficient for present purposes to say that I will not rule against an application for an extension of time in which to make the application. I will dismiss it on the basis that it is not made in the correct form, and will not dismiss it on the merits, so that both parties are free to raise whatever arguments are appropriate if Ms Finch makes an application in proper form complying with the rules about applications for extensions of time. 6 The third category of orders that are sought are that Ms Finch seeks reasons for the decisions that Murphy J made. That is not an application that can be made to a judge from another judge. If reasons are inadequate, that may or may not found a ground of appeal, but it is not a matter within the competence of one judge to order that another provide reasons. 7 Subject to the variation of order 5 in the first matter, the two applications will therefore be dismissed. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.