Federal Court of Australia Act 1976 (Cth) Sections 23, 25(1), 25(2)

Law and Justice Legislation Amendment Act 1990 (Cth) Section 49

Patton v. The Minister for Defence and The Commonwealth of Australia (1987) 13 FCR 476

Trade Practices Commission v. Manfal Pty. Ltd. (1990) 27 FCR 284

Jennings Construction Ltd. v. Burgundy Royal Investments Pty. Ltd. (No. 1) [1986] HCA 84; (1986) 161 CLR 681

Edelsten v. Ward (No. 2) (1988) 63 ALJR 346

McMillan v. Hambledon Nominees Pty. Ltd. (1991) 1 QdR 118 (FC)

Manfal Pty. Ltd. v. Trade Practices Commission (1990) 65 ALJR 256

Elspan International Ltd. v. Aerospatiale Holdings Ltd. (1992) 67 ALJR 177

Smith, Hogg and Co. Ltd. v. The Black Sea and Baltic General Insurance Co. Ltd. (1940) 162 LT 11 (CA)

Note: Settlement and entry of orders is dealt with in Order 36 of the

COOPER J This is an application to stay a judgment of the Full Court of this Court given on 21 June, 1993 whereby the court ordered in part that judgment be entered for the applicant in the originating application (the respondent to this application) for $106,329.00 together with costs including reserved costs. Additionally, it is sought that execution of the order under a writ of fieri facias obtained by the applicant be stayed. The stay is sought until the determination of an application for special leave to appeal against the judgment of the Full Court, which application has been filed in the High Court of Australia, and the determination of the appeal if leave is granted.

2. A threshold question arose as to whether I, as a single judge of the court, had the power to stay an order of the Full Court pending determination of the special leave application. Pincus J in Patton v. The Minister for Defence and the Commonwealth of Australia (1987) 13 FCR 476 held that a single judge of the court had such a power. French J in Trade Practices Commission v. Manfal Pty. Ltd. (1990) 27 FCR 284 held that no such power existed in a single judge. French J in denying the existence of such a power characterised the stay of a judgment of the Full Court as the exercise of the appellate jurisdiction of the court which was, by section 25(1) of the Federal Court of Australia Act 1976 (Cth) ("the Act") to be exercised by a Full Court (at 287). Pincus J was of the opinion that the appellate jurisdiction was exhausted after the judgment of the Full Court was given and that an application for a stay pending pursuit of the matter in the High Court could not properly be described as invoking the appellate jurisdiction of this court. His Honour was of the opinion that the power to grant a stay in such circumstances was sourced in Order 37 rule 10 of the Federal Court Rules and also under section 23 of the Act.

3. By section 49 and the Schedule to the Law and Justice Legislation Amendment Act 1990 (Cth) section 25(2) of the Act was amended. The subsection in its amended form now reads:-

"Applications:

(a) for leave or special leave to appeal to the Court; or

(b) for an extension of time within which to institute an

appeal to the Court; or

(c) for leave to amend the grounds of an appeal to the Court; or

(d) to stay an order of a Full Court;

may be heard and determined by a single Judge or by a Full Court".

The amendment came into effect on 21 December, 1990.

4. If, as French J held, the granting of a stay in cases such as the present is the exercise of the appellate jurisdiction of the court, then section 25(2)(d) now empowers a single judge to grant a stay. If, as Pincus J held, the appellate jurisdiction is exhausted, Order 37 rule 10 and section 23 of the Act provides the power to grant a stay in appropriate cases. It is unnecessary to determine which view is correct as it is clear, in my opinion, that a single judge of the court has the power, concurrently with a Full Court, to stay a judgment, which is a final order of the Full Court, pending determination of a special leave application to the High Court of Australia.

5. The basis upon which the power is exercised is clear. In Jennings Construction Limited v. Burgundy Royal Investments Pty. Ltd. (No. 1) [1986] HCA 84; (1986) 161 CLR 681 at 684, Brennan J said:-

"A stay to preserve the subject-matter of

litigation pending an application for special

leave to appeal is an extraordinary jurisdiction

and exceptional circumstances must be shown

before its exercise is warranted".

6. Brennan J also made clear in Edelsten v. Ward (No. 2) (1988) 63 ALJR 346 that the power was not available merely to preserve the status quo pending appeal. His Honour said (at 346):-

"The present application is made pursuant to the

inherent jurisdiction of the court to preserve

the subject matter of litigation pending the

making of an application for special leave to

appeal to this court. That is the jurisdiction

which, as has been repeatedly pointed out, is an

exceptional jurisdiction. It is one which can

only be exercised in extraordinary

circumstances. It is as well to emphasise that

observation again lest the impression be created

that, in the conduct of litigation, the orders

of this court are available to keep matters in

statu quo until the litigation is finally

resolved. That is not the purpose of the

inherent jurisdiction. Something quite

exceptional must be shown before that

jurisdiction is exercised".

7. The court will not stay proceedings pending the hearing of an application for special leave to appeal unless satisfied that a stay is required to preserve the subject matter of the litigation (Jennings Constructions Limited v. Burgundy Royale Investments at 683; McMillan v. Hambledon Nominees Pty. Ltd. (1991) 1 QdR 118 (FC), Manfal Pty. Ltd. v. Trade Practices Commission (1990) 65 ALJR 256 at 257, Elspan International Ltd. v. Aerospatiale Holdings Ltd. (1992) 67 ALJR 177 at 178) or to otherwise ensure that any right to appeal is not rendered nugatory eg. where execution would deprive an appellant of the means of prosecuting the appeal (Smith, Hogg and Co. Ltd. v. The Black Sea and Baltic General Insurance Co. Ltd. (1940) 162 LT 11 (CA) at 12. The court may also act where the refusal of a stay would make it difficult for the High Court in the determination of the appeal to grant the relief sought (Manfal Pty. Ltd. v. Trade Practices Commission at 257).

8. In addition the court will consider whether there is a substantial prospect of leave being granted, whether the stay will cause loss to the respondent, and, the balance of convenience (Jennings Construction Ltd. v. Burgundy Royale Investments Pty. Ltd. (No. 1) at 685; Elspan International Ltd. v. Aerospatiale Holdings Ltd. at 178). However, the process is not an exercise in weighing the advantages and detriment or in balancing the convenience of parties (Manfal Pty. Ltd. v. Trade Practices Commission at 256).

9. The applicant has submitted that the respondent before the Full Court made the statement that he is without substantial means and without any assets beyond a car and presumably personal effects. A real property search did not disclose that the respondent owns any real property in Queensland. The submission is that if the judgment is paid there is a real risk that the money will be spent and that the respondent would be without the means to repay the same if the judgment of the Full Court is set aside. Thus, it was submitted to refuse a stay may render the applicant's appeal, if special leave is granted, nugatory. The respondent who appeared in person to resist the application, did not deny he was a person of limited means. However, there is no material to suggest that he is insolvent, that he would squander the money or that the money will not be preserved or invested in some tangible asset which would be available to repay the money in the event that the judgment of the Full Court was set aside. It does not follow that the mere absence of wealth will justify a stay of a successful litigant's right to the fruits of his or her judgment. The applicant must go further and show that satisfaction of the judgment will cause damage which is so irreversible as to effectively render any right of appeal nugatory.

10. The draft notice of appeal attached to the application for special leave to appeal is limited to one point and that is the inference that the respondent relied on the misleading and deceptive conduct drawn by the Full Court from the findings of fact of the trial judge. The contention is that the Full Court erred in believing that it was entitled to draw such an inference; erred in failing to appreciate that the trial judge had rejected the evidence of the respondent on reliance; and erred in failing to appreciate that there was no proper basis on which to reverse the finding of the trial judge on reliance.

11. The grant of special leave is sought on the basis of the due administration of justice in that it is contended that the Full Court has failed to observe the constraint which limits the scope for interference by an appellate court in the findings of fact of a trial judge, especially in respect of findings based upon his assessment of the credibility of witnesses.

12. In an affidavit filed in support of the application for a stay, the applicant's solicitor deposes that senior counsel has advised that the application for special leave would be difficult, but there were prospects of success. He further advised that if special leave was granted, the prospects of success on the appeal were excellent.

13. A perusal of the reasons for judgment of the Full Court (at 21 - 22) shows that the Full Court was conscious of its limited power to intervene to overturn the decision of the trial judgment on a question of fact and their Honours cite the relevant applicable authorities. If therefore the argument on the special leave application is essentially one limited to competing inferences to be drawn from the primary facts, the prospects of obtaining special leave to appeal would be poor. This is acknowledged in senior counsel's advice that the application would be "difficult". On any view it cannot be said that the prospect of obtaining special leave would be substantial.

14. The respondent relied upon representations in February, 1989 as giving rise to his damage. He commenced proceedings in 1990. The trial was held in December, 1991 and judgment given in March, 1992. It is apparent from the reasons of Beaumont J of 26 August, 1992 referring the application for leave to appeal out of time to the Full Court, that the respondent did not have the funds to retain professional representation to progress the matter after trial, and, in the result, argued the appeal personally.

15. In the findings which the Full Court has made, the respondent has been kept out of his damages for a long time. To keep him out of them for a further period denies him access to the damages and any interest he could earn upon their investment. That is, he continues to suffer hardship from the non-satisfaction of the judgment and there is no immediate prospect of the application for special leave to appeal being heard in the foreseeable future.

16. The applicant has offered to provide an unconditional bank guarantee within forty-eight (48) hours in favour of the respondent for payment of the judgment sum, interest and costs as the price for obtaining a stay. Whilst this may alleviate the risk that a change in the financial circumstances of the applicant pending disposition of the special leave application could render the respondent's judgment worthless, it does not alleviate the present hardship non-satisfaction of the judgment is causing.

17. Having considered all of the above circumstances, I am not satisfied that there exists the necessary extraordinary circumstances to justify the granting of a stay of the judgment of the Full Court or a stay of the execution of the writ of fieri facias.

18. The application will be dismissed. I will hear the parties on the question of costs.

19. The Court orders that the application is dismissed.