Frigger v Trenfield

1. The interlocutory application filed on 1 August 2022 is dismissed.
2. The applicants must pay the first respondent's costs of the application, fixed in the sum of $900. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKSON J: 1 I have today delivered an assessment of the quantum of the costs the subject of paragraph 1 of the orders made in this proceeding on 4 April 2022, which was to the effect that the applicants must pay the first respondent's costs of the proceeding on a party-party basis: see Frigger v Trenfield (No 11) [2022] FCA 326 and Frigger v Trenfield (No 12) [2022] FCA 900. 2 The assessment requires the applicants to pay those costs and disbursements in a total amount of $422,310.45. The applicants now move for an order described in an interlocutory application dated 1 August 2022 as an order that the operation of the 'costs judgement' of today be 'suspended pending the resolution of appeals WAD278/2021 and WAD85/2022'. Appeal WAD278/2021 is an appeal from the main judgment in the proceeding, namely, Frigger v Trenfield (No 10) [2021] FCA 1500, and WAD85/2022 is an appeal from the costs judgment of 4 April 2022 just mentioned, Frigger v Trenfield (No 11). I was informed from the bar table, and it was not in contention, that WAD278/2021 has been part heard before a Full Court which has listed the balance of the hearing of the appeal to take place this month, and WAD85/2022 has not been listed for hearing pending the outcome of WAD278/2021. 3 There was some disputation between the parties today as to the true nature of the application that the applicants make today, the first respondent maintaining that it was in truth an application for an injunction of a kind that has been disposed of in previous judgments of this Court, and so an abuse of process. However it appears to me that I can and should take the application as what it appears to be on its face: an application for the suspension of the money judgment that arises from the combination of paragraph 1 of the orders of 4 April 2022 and the assessment of quantum made today. 4 The applicants put the application under various provisions of the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules 2011 (Cth). Those provisions included r 36.08 of the rules, which concerns stay of execution of a judgment that is appealed from. It is doubtful that that rule is directly applicable because although there has been an appeal from Frigger v Trenfield (No 11), there has been, of course, no opportunity yet to appeal from the assessment that has been made today. The applicants also put the application under r 41.03, which provides that a party bound by a judgment or order may apply to the court for an order that the judgment or order be stayed, and r 41.11, which gives a party the ability to apply for a stay of the execution of a judgment or order. In my view, the application is best considered under that latter rule because of the specific basis on which the applicants put it. 5 That specific basis is that the applicants contend that if a stay is not granted, then the first respondent may move to take steps to enforce the judgment against their home which could lead to them needing to vacate the home. They referred me to an authority, Endormer Pty Ltd (in liq) v Australian Guarantee Corporation Ltd [2001] FCA 15, to the effect that a stay may in those circumstances be granted on the basis of 'practical necessity', namely, the practical necessity which can arise if steps could otherwise be taken to enforce a judgment which would require people to vacate property. 6 It appears to me that the general principles which apply to stays in connection with appeals, which remains the underlying basis of this application even though I have framed it as a stay of execution, are applicable here. Those principles were succinctly summarised by Katzmann J in In-N-Out Burgers, Inc v Hashtag Burgers Pty Ltd (No 2) [2020] FCA 772 at [25]. Her Honour said: The Court has a broad discretion and special circumstances are not required. But the judgment is not to be treated as provisional. The successful party is entitled to its benefit and the presumption that it is correct. Consequently, the applicant for a stay carries the burden of demonstrating that a stay is appropriate. A stay should not be granted unless the appeal is at least arguable, although speculation as to its prospects of success is usually inappropriate. Without more, however, an arguable case is not sufficient justification for a stay. In the exercise of the discretion, the court will weigh up such factors as the balance of convenience and the competing rights of the parties, including, in particular, any prejudice to the parties that would be caused by granting or refusing a stay. A substantial factor in favour of a stay is the risk that, without a stay, the appeal would be rendered nugatory. 7 To that I would add, as has already been adverted to, that in the particular circumstances on which the applicants rely here, a factor in favour of a stay would be any risk that without a stay the applicants may experience significant prejudice such as being forced to vacate their home. 8 There are however three difficulties, as I see it, in relation to the application as it is presently framed by the applicants. The first is that I have been given no information as to the basis of the appeals. In particular, the applicants submitted that it was the appeal in WAD85/2022 which was operative here, since that that is the appeal against the costs judgment of 4 April 2022, but the grounds of any appeal have not been put before me, and I simply have no basis to engage in any assessment whatsoever as to the merits of the appeal. 9 The second difficulty is that the applicants have not adduced any evidence on which it is possible to form any view to the effect that the first respondent will levy execution against their home within any short period of time. Counsel for the first respondent said from the bar table that he had instructions that his client will not take any steps to levy execution against the home within the next 30 days, noting that the appeal in WAD278/2021 is likely to have been heard by then albeit judgment in the appeal will quite possibly not have been delivered. 10 While there is no evidence of the first respondent's position in that regard, let alone any undertaking, it is a serious thing said in open court by counsel on behalf of the first respondent, and there is no evidence on the other side to outweigh it. There is also the practical recognition necessary here, that even if, quite inconsistently with what counsel has said in open court, the first respondent did take steps to seek the vacation of the family home, those steps would take time, and the chance that the significant prejudice of actually having to vacate the home is going to happen within any foreseeable period of time is, in my view, negligible. 11 The third difficulty in the way of the application for a stay, which I raise as a discretionary matter, is that as has already been indicated, the appeal from the main judgment, WAD278/2021, is presently not only before a Full Court, but part heard in front of that Full Court. It appears to me that to the extent that there is any reliance on the merits of that appeal it would not be appropriate for me, particularly as the primary judge appealed from, to comment on that, given that the matter is presently before that Full Court. 12 However, that discretionary consideration is not the major reason why I dismiss the application. The application is principally dismissed because I am not satisfied that there is any evidence before me to indicate that there is any real chance that the prejudice relied upon is going to materialise, at least within the next 30 days. 13 Counsel for the respondent submitted that his client should have the costs of today fixed at $900. Costs should follow the event in the terms of the application and $900 appears to me to be a reasonable amount. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.