REASONS FOR JUDGMENT
1 Ms George has, by notice of motion filed today by leave, applied for the following orders:
1 A stay from part of the judgment of QUD47/2009 of the Federal Court of Australia, Justice Ryan, Justice Marshall, and Justice Logan, given on 28 May 2010, pages 84 and 86, in respect to the car, float, and horse. With respect to orders dated 9/2/09, FMC 3, 4, 5, 10, an order dated 5/12/2008 FMC amended 11/12/2008.1.
2 The applicant seeks leave to file an affidavit dated 16/6/2010 in the Full Court of Australia.
3 The applicant seeks procedural orders that allow his Honours to deal with the remaining assets being the car, float and the horse as described within the enclosed affidavit by way of the papers.
4 The applicant seeks the final orders on the car, horse and float as follows. [sic]
2 It is not necessary, for present purposes, to set out the "as follows."
3 The affidavit to which Ms George refers in that notice of motion was also the subject of a grant of leave to file the same in court, subject to a reservation in respect of such relevance, if any, it had to the hearing of the application made by the notice of motion. The parties to the appeal, insofar as they were ever active parties to the appeal, were each represented at the time when leave to file the notice of motion was sought. Those parties were Ms George's Trustee in Bankruptcy (Mr Fletcher), Dr Peter Ironside Pty Ltd, Dr Ironside, and the National Australia Bank Limited. The other named party to the appeal, Ms George's sister (Ms Susan Wilson) had earlier signified that she did not wish to play an active role in the appeal.
4 The application was made, so Ms George informed me, as a result of advice which she had received from officers of the High Court of Australia's Registry as to the desirability of seeking from the court below, rather than the High Court, a stay of the operation of any orders in respect of which it was proposed to seek special leave to appeal to the High Court. That advice, with respect, was doubtless cast with an eye to what was said by Brennan J (as his Honour then was) in Jennings Construction Limited v Burgundy Royale Investments Pty Ltd No. 1 (1986) 161 CLR 681 at 684 - 685. There had been, in that case, an application to the High Court for a stay of the operation of orders of an intermediate appellate court.
5 His Honour made reference to the possession of an inherent jurisdiction on the part of the High Court to stay the operation of orders that were the subject of an application, as yet undetermined, for special leave. Having so done, his Honour stated:
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. In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject- matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.
6 Ms George has not as yet filed an application for special leave to appeal to the High Court, nor, it must be said, is it readily apparent from her affidavit filed today by leave, quite what the basis upon which she proposes to seek special leave is. Some limited precision in that regard was, though, able to be gleaned in the course of oral submissions.
7 As to jurisdiction to grant a stay, the position seems to be the subject of express provision in s 25(2) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act). It is there provided, materially:
(2) Applications:
(d) to stay an order of a Full Court;
must be heard and determined by a single judge, unless:
(f) the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate to hear and determine the application.
8 Ms George had foreshadowed, to the registry of this Court, the making of an application today, in respect of a stay. Today was the day appointed for the delivery of orders and reasons for judgment on the remaining subject of the appeal, which was the subject of costs. The other orders of the Full Court were made on 28 May 2010, for reasons which were then published.
9 In light of the courtesy extended to the Court by Ms George in foreshadowing the making of an application for a stay, and having regard to the provisions of s 25 of the Federal Court Act, which I have mentioned, I took the course, in advance of today, of consulting with Ryan and Marshall JJ who, together with me, constituted the Full Court to which this matter was assigned, as to whether it was appropriate for the matter to be dealt with by a single judge. Of the members of the Full Court, I am the only Queensland resident judge. Each of us reached a view (necessarily, of course, provisionally) that it was a matter that was appropriate for me to deal with, rather than for it to be dealt with by the Full Court, as constituted for the purpose of the appeal assigned to it.
10 When the stay application was brought on by Ms George, I stated to the parties the view which had been reached as to the course to adopt, provisionally, by the Full Court, with a view to receiving such submissions, if any, as any may wish to make in respect of that course. Each, including Ms George, supported the view provisionally reached by the Court that it was appropriate for the stay application to be dealt with by a single judge. I then proceeded to hear submissions, in respect of whether or not to grant a stay, being of the view that, in the circumstances just described, I possess jurisdiction to grant a stay, if so persuaded.
11 It emerged in the course of Ms George's submissions that there were four items of property, with which her stay application was concerned.
12 Adopting, in so far as relevant, abbreviations already used in the course of the Full Court's judgments, those items of property comprised the horse, the land cruiser, the Moggill property and another item of property, a horse float. I propose to deal with the question of whether or not to grant a stay by reference, separately, to each of those items of property.
13 In so doing, an overriding consideration is whether, in respect of the matter as it so relates, there is a substantial prospect that special leave to appeal will be granted, whether the grant of a stay will cause loss to any respondent and where the balance of convenience lies. In other words, considerations which were set out by Brennan J in Jennings Constructions v Burgundy Royale Investments, as pertinent to the question of whether the High Court ought to stay the operation of the judgment of an intermediate appellate court, also have relevance to whether or not, where that intermediate appellate court is approached on the subject of a stay, a should be granted.